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Comparative Con Law Outline 2009
Comparative Con Law Outline 2009
PART I: FOUNDATIONS
Major issues:
1. Understand how and why a particular jurisdiction answers a question the way it does
2. What if, anything, can the US learn from these jurisdictions, in light of relevant differences b/t them? When, if ever,
should the US use foreign law?
Modes of Comparison
A. Originalist/genealogical:
1. Useful comparison is possible when the legal systems share many of the same constitutional starting points.
Similarly situated decision makers, facing parallel questions, can be an important source of insight. It focuses
on the internal logic of particular legal principles or the relationship b/t those principles or specific rules.
2. Prob: the Supreme Court’s use of originalism is often embodied in their interpretations. Thus, such insights
might have little relevance unless they have the strongly backwards-looking approach that focuses on the proper
meaning to be given to principles already embodied in the text or the originalist understanding of the
Constitution.
3. Prob: Legitimacy- the more that value judgments are called for, the more difficult it is to rely on outside sources
of justification
B. Deliberative:
1. Sort of like secondary sources; have added rhetorical value b/c analysis comes from other learned scholars
2. Legitimacy: based on the existence of real-world consequences, reasons and experience
3. Persuasive value: public will accept
4. Posner: we have to be worried about rhetoric that isn’t quite right on all fours
C. Empirical:
1. Empirical evidence can usually support both sides
2. Context is very important
3. Have to be wary of mixing up causation with correlation and possibility vs probability
D. Moral-cosmopolitan: a consensus on a value judgment might be worth following
1. Posner/Sunstein and Independence: comparing allows US courts to gain insights about the moral conclusions of
a large number of relatively independent constitutional decision makers who have access to diff information.
Thus if they all arrive at the same morally correct answer, the collective action decision reached will reveal a
truth rather than reflect one entity’s idiosyncratic preferences.
a. Requirements:
1) Independent
2) Moral judgments
3) Against similar backgrounds or conditions
b. If two people are answer the same question that has two possible outcomes, and each has a greater than
50% chance of being correct, then the probability of reaching the right answer increases as the group
increases.
c. Juries: each juror has access to private information as well as the public trial information. If they all make
decisions based in part on both the private and public information, then the decision reached is more likely
to be correct as the number of jurors increases.
2. Waldron and Interdependence: if the global community reaches a consensus after having deliberated and gone
through iterative processes of refining and re-testing decisions, then such conclusions should have the equal
force of scientific conclusions that have undergone testing and re-testing. Encourages a rich marketplace of
ideas whereby sound ideas win out after having been implemented successfully. Coercive compliance with the
consensus isn’t the same thing.
E. Reflective: see how things have changed by examining a small subset of like-minded countries
Background on the countries we’ll study:
A. Canada
1. Provincial trial ct makes decision; gets appealed to the SC of Canada
2. SC of Canada = court of general appeal so it can hear c/l cases, cases in equity as well as federal and
constitutional q’s
B. India
1. 21 provincial High Courts can hear constitutional questions; have original jurisdiction as well
2. Supreme Court of India has 30+ judges who sit in groups of 3 (Division Bench) for most cases, w/ groups of 5
to hear major cases (Constitutional Bench)
3. SCI has original (intra-govt), appellate and advisory jurisdiction; hears constitutional as well as non-
constitutional questions.
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C. Germany
1. Has a Constitutional Court which only hears constitutional issues
2. Can hear cases in the abstract (ie before any injury has occurred) or after injury has occurred
3. (Contrast w/ the Kelsen court: before a law went into effect, the court would be asked to look at its
constitutionality; once passed, no private party could challenge)
D. South Africa
1. SA Constitutional Court: so limited jurisdiction; can hear abstract questions (almost never does) but mostly
concrete questions.
2. No discussion of standing or advisory opinions but it’s being pushed by the govt to have these issues settled
Roper (US)
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c. Weigh competing values by balancing. Proportionality will turn on the importance of the govt objective
AND its constitutional grounding
2. Balancing
a. Deterrence, prevention and retribution vs alternative punishments; factors that make the DP cruel, inhuman
and degrading; destruction of life; annihilation of dignity; elements of arbitrariness; inequality and
possibility of error in the judgment
b. You don’t forfeit any constitutional rights just by being a criminal—so the right to life and dignity are not
automatically forfeited by a convicted murderer.
c. Yes, imprisonment does impair dignity; the fact that their freedom has been curtailed doesn’t legally justify
further curtailment (relative to whatever crime they committed)
d. The right to life and dignity are the most important of all human and rights. Thus these two are valued
above all else. These values are not upheld when the state objectifies murderers by the DP, in the hope that
it will deter others.
e. Balancing:
1) Costs: Loss of dignity and life (most important con/HR values) against
2) Possible Benefits: retribution (Court says this cannot by definition outweigh dignity/life) and
deterrence (which is a valid reason at this time)
f. Conclusion: costs are too high.
3. How is dignity implicated?
1. Under Kant, deterrence isn’t a valid reason b/c can’t use people as a means to an end.
2. Retribution might be ok under Kant but isn’t good enough given the history of the region and the apartheid-
era use of retribution
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b. Heavy burden on the claimant to prove unreasonableness when the penalty scheme is the outcome of a
democratic process.
c. It is reasonable b/c it serves the penalogical purpose:
1) Use of international law:
A) US stats and cases – DP is democratically favored even when judges rejected the DP
B) Bill to reinstitute the DP in Britain was narrowly defeated
C) Upshot: b/c there’s no international consensus that it’s devoid of purpose or utility and reasonable
people disagree on it, it’s reasonable for India to have it.
2) SCI reads in c/l principles of mitigating/aggravating factors to cut against an argument that the DP is
arbitrary.
G. Is Art 21 violated? No.
1. Art 21: no person shall be deprived of his life except by procedures of law (India is very concerned about
procedural due process and the drama of the Lochner era)
2. Procedures of law: refers to meaningful process but not as strong as substantive due process; process must be
“right and just and fair” and not “arbitrary, fanciful or oppressive”
3. So hard to win on this b/c so narrow. Is dismissed quickly.
H. This decision is used to avoid granting the DP in India. SCI reads in the aggravating and mitigating factors in such a
way that it’s used to restrain sentencing of the DP. Thus DP is not done as often as it could be done.
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1. Foundational Cases
Canada
Section 1
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
US
14th Amendment
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
South Africa
Sec 8 of the Interim Constitution (now Sec 9)
(1) Every person shall have the right to equality before the law and to equal protection of the law.
(2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality
of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.
(3) (a) This section shall not preclude measures designed to achieve the adequate protection and advancement of
persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and
equal enjoyment of all rights and freedoms.
(b) …
(4) Prima facie proof of discrimination on any of the grounds specified in subsection (2) shall be presumed to be
sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established.
A. Washington DC v Davis
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1. Facts: black police officers challenged the test used by the police department alleging that it had the effect of
keeping blacks out of the department.
2. Held: Showing disparate impx isn’t enough—to make out a claim, the plaintiff has to prove the legislature acted
with discriminatory intent. (Sometimes discriminatory FX can be so strong as to give rise to the inference of
intent, ie Gomillion)
3. The plaintiffs could’ve argued under critical race theory that the test perpetuates race-based policies b/c it’s
based on education standards that themselves are racially problematic, especially for blacks.
4. Possible harms that P can argue:
a. Opportunity
b. Dignity
c. Hierarchy/Subordination
d. Brown has all 3 going for the plaintiffs.
5. Dignity + Law v Canada
a. Law said that by denying the petitioner benefits, the court is forcing her to meet higher objective stds and
that’s good for her self-actualization and self-respect
b. Could say the same thing here: by not calling the test problematic, the court forces applicants to reach
higher stds, which is good for their dignity
B. SA’s Harksen Test for unfair discrimination in Sec 9 Analysis:
1. Is there a distinction?
2. Does it amount to “discrimination?”
a. If it’s on a specified ground discrimination is established
b. If it’s not on a specified ground, then whether there’s discrimination will depend on whether the ground is
based on attributes and characteristics that have the potential to impair fundamental human dignity or harm
them in a comparable way
c. Discrimination can be direct and indirect (facially neutral that has the FX of discrimination; intent is not
required to prove discrimination)
3. If there’s discrimination, is it “unfair?”
a. If discrimination on specified ground unfairness is presumed
b. If on an unspecified ground claimant has to prove unfairness
c. (Test of unfairness focuses primarily on the impx of the discrimination on the complainant and others in his
situation)
d. State must rebut the unfairness by showing fairness. Fairness factors:
1) Purpose of law? To ameliorate past harms?
2) How vulnerable is the group affected? What is the dignity harm?
3) Dignity (is a separate fairness component) OR impairment of a comparably serious nature
A) Self worth (right to be free from stigma/persecution)
B) Threshold level of capability (right to be free from threat of prosecution)
4) Intent to discriminate is useful but not required
C. City Council of Pretoria v Walker
1. Facts: Pretoria is an important city, one of the capitals, the de facto national capital, is Afrikaans-speaking and a
stronghold for the ANC; has symbolic significance. Post-apartheid, predominantly white neighborhoods had
metered rates for tariffs on water/electricity consumption. The black sections were on a flat rate through some
had meters but were not used yet, out of fear for violence. The city was phasing in the use of meters. City also
lied to the white residents about the rates they were getting. This creates a bit of an issue as to whether this is
racially motivated or geographic.
a. Walker first argued that the law violated 8(1) and that 8(3) didn’t save it.
b. Walker then argued a violation under 8(2).
2. Issue: Walker, a white, challenged the whole scheme when he was sued for nonpayment. He argues that it’s
unconstitutional under Sec 8 (now Sec 9) of the interim constitution, for being racially discriminatory.
3. Held: Although Walker made out a claim for discrimination under Sec 8(2), the state successfully rebutted the
presumption of unfairnessas to the facial challenge. However, the lying is a violation of dignity.
4. Application to the facial challenge:
a. Is there a distinction? Yes.
b. Is there discrimination? Yes.
c. Is it direct or indirect? The impact is sufficiently racial that the distinction or discrimination is on the basis
of race, indirectly.
d. Unfairness rebutted? Yes
1) Nature of the group?
A) Despite their past power, Walker’s group is now vulnerable
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B) Economically powerful but politically vulnerable
C) Huge ANC majority makes white minority potentially powerless
2) Nature of the rate-setting power?
A) Rate setting is always about power and line drawing
B) So some good intentions, ie wanting to avoid violence, but not enough to rebut unfairness
3) Purpose?
A) An ameliorative purpose is relevant to the fairness inquiry
B) Pretoria is trying to do the right thing, and that counts for something
4) Interests affected?
A) Facially, the policy itself doesn’t invade Walker’s dignity objectively though he was subjectively
insulted.
B) Application though violates his dignity b/c the city is lying about the rates and white residents
were targeted to be lied to
5) Result?
A) Facial challenge doesn’t violate the Constitution; city rebutted the unfairness
B) As applied violates the Constitution; city can’t justify lying.
9. Equality (SA)
1. Everyone is equal before the law and has the right to equal protection and benefit of the law.
2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality,
legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by
unfair discrimination may be taken.
3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race,
gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of
subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the
discrimination is fair.
India
Art 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory
of India.
Art 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
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(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of
them.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the
advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled
Tribes.
US Affirmative Action
A. Croson:Richmond’s minority set aside program which gave preference to minority business owners in municipal
K’s was held to violate the Constitution’s EPC for lack of a compelling interest. They were trying to remedy general
societal discrimination and not something institutionally specific.
B. Adarand:All racial classifications imposed by the govt must be analyzed under SS. For state action, use EPC. For
USFG action, use the 5th’s DPC to import EPC ideas. The program awarded a DOT K to a minority business over
the lowest (white) bidder. App Ct ruled against the white bidder but SC vacated and remanded.
C. Grutter v Bollinger:
1. O’Connor’s Majority:
a. Race as a loose factor in law school admissions is permissible.
b. Is willing to use SS in a more nuanced way so that it’s not fatal for the govt; diversity is a compelling
interest
2. Ginsburg/Breyer Concurrence:
a. Cites stats showing that predominantly minority communities have unequal and inadequate resources and
educational opportunities. Despite these problems, some minorities nonetheless can meet the high stds for
getting into top schools.
b. They use something closer to intermediate scrutiny or something less stringent than heightened scrutiny b/c
they are willing to justify the state’s interest as correcting educational inequalities and providing equal
opportunities.
3. Renquist/Scalia/Kennedy/Thomas Dissent:
a. Applies SS in such a way that the state fails; the state’s goal is to achieve a “critical mass” of minorities but
the actual program is just an effort to achieve racial balancing.
D. Gratz v Bollinger
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1. Renquist’s Majority: Using a point system to judge each candidate’s abilities, including giving a big bump for
race, is not a real individualized consideration as required by Bakke. Thus in some cases, the boost for race
becomes the decisive factor and that amounts to impermissible outright racial balancing.
2. O’Connor’s Concurrence: All diversity factors don’t have to be weighed equally but the effect of the race boost
ensures that all diversity factors aren’t considered once you assign point values.
3. Souter/Ginsberg Dissent:
a. Using racial diversity in the admissions process means that race is being considered in some way to
increase an applicant’s chance for admissions. Thus using a point system helps to achieve that goal.
b. Colleges want to maintain their minority enrollments—this system is candid but if you strike this down,
their attempts will just become more covert.
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Hate Speech
• “Hate speech”-speech designed to promote hatred based on race, religion, ethnicity or national origin
• Became an issue after WWII; international covenants call for or condone the criminalization of hate speech.
Canada
Section 1: Limitation of Rights
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of
communication;
d) freedom of association.
Germany
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Article 5 (Freedom of expression)
1. Everyone has the right freely to express and to disseminate his opinion by speech, writing and pictures and freely to
inform himself from generally accessible sources. Freedom of the press and freedom of reporting by radio and
motion pictures are guaranteed. There shall be no censorship. (explanation of the basic right)
2. These rights are limited by the provisions of the general laws, the provisions of law for the protection of youth and
by the right to inviolability of personal honor. (authority to limit 5(1) rights)
3. Art and science, research and teaching are free. Freedom of teaching does not absolve from loyalty to the
constitution.
2. Pornography
Canada
Section 1: Limitation of Rights
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of
communication;
d) freedom of association.
US on Pornography
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A. Miller Test for Obscenity: whether the avg person, applying contemporary community stds, would find that the
work, as a whole, appeals to the prurient interest or depicts sex in a patently offensive way. Work must as a whole
lack serious scientific, literary or artistic value.
1. But if law is targeting the secondary FX, then time/manner/place restrictions are ok.
2. If it fails the Miller test for obscenity, then use SS.
B. American Booksellers v Hudnut (7th Cir. 1986)
1. Facts: Catharine MacKinnon and Andrea Dworkin drafted an anti-pornography ordinance that was passed in
Indianapolis. The statute defined pornography as the graphic sexually explicit subordination of women through
pictures and/or words that also included one of the following. (Then gives a long list of conditions that define
porn as a practice that discriminates and degrades women.) Statute was challenged as violating the 1st.
2. Held: Yes it violates the 1st b/c it does not refer to the prurient interest, to offensiveness, or to the standards of
community nor does it consider the artistic, literary or scientific value of the work. It’s based on impermissible
viewpoint discrimination.
3. Reasoning:
a. If something fits the Miller definition of obscenity, then it becomes easier to regulate b/c that speech isn’t at
the heart of what’s protected under the 1st.
b. To regulate pornography, the porn being regulated must be “obscene” but the statute doesn’t regulate
materials that could be “obscene:” doesn’t refer to the prurient interest or patently offensive sex nor does it
carve out an exception for meritorious works. (But Mackinnon would say that we’re too socialized to
believe that subordination can be valuable thus we can’t really judge what’s meritorious and what isn’t.)
c. Biggest prob: this is viewpoint discrimination. The law has taken the view that speech treating women in
an approved way is ok but if it’s in a disapproved way, then it’s to be prohibited.
d. Thus b/c it’s viewpoint discriminatory, use SS. Viewpoint discrimination almost always spells invalidity.
e. Truth is not a prerequisite for the right of free speech. Everything is open to revision and contestation.
Govt shouldn’t be able to suppress speech if it’s false b/c that’d put the govt in the position of determining
truth and driving out falsity, thereby supplanting the role of free speech altogether.
f. Something being called “low value speech” doesn’t refer to the content of the work, ie female subordinate
pornography isn’t “low value.” Low value refers to the entire category.
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d. The constitution favors both the limits on the regulation and the regulation itself
F. What forms of hate speech are particularly pernicious?
1. US: cross burning b/c of the particular history of it
2. Germany
a. Special dignity harms to the Jewish; part of what it means to be a German Jew is the special entitlement to
protections and the statute must provide that protection (sui generis); lots of regs ok but the broadest
protections go to the Jews
b. Generalized hate speech regs are ok.
3. Canada: all hate speech is treated equally; does not carve out a special concern for a subset of hate speech
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PART IV: DIGNITY AND AUTONOMY
1. Abortion
Sunstein/Segal
A. A minimalist decision: is narrow (rather than broad) and shallow (rather than wide or deep) – decide as little as
possible; limit the impact of the holding to the facts, as much as possible
1. Narrow: frames decision in the facts of the case rather than in terms of a broad rule
2. Shallow: skirts issues of basic principles in explaining its decision; allows people who disagree on the deepest
levels to converge; thus judges can agree on how to decide a case w/o agreeing on why it should be decided a
certain way
3. Deep reasoning: usually produces widely applicable rules.
4. Professor:
a. Broad: provide guidance under the full range of where this is applicable; tries to pre-judge future analogous
cases
b. Narrow: just decide the single issue w/o providing much guidance on other possible cases (Roe is raised as
a narrow issue about whether she can get an abortion for rape b/c the law doesn’t make an exception for
rape; but decision is broad and addresses abortion in multiple contexts)
c. Shallow: theorize the minimum that you need
d. Deep: very theorized, very normative
B. Why might minimalism be beneficial?
1. Narrow and shallow decisions leave many issues undecided, thereby giving the legislature the democratic room
to maneuver.
A) That reduces the costs of judicial decision-making b/c the Court can converge on a result w/o having to
converge on the reasons or implications of the result
B) It also leaves the court free to reach diff results in future cases w/ similar facts. The court can reason
analogously from the minimalist precedent but need not be strictly bound by the prior case. Thus
minimalism allows for flexibility b/t the judiciary and the legislature.
2. Narrow and shallow decisions can be tailored to promote deliberation and accountability in political decision-
making.
a. Rather than face a controversial constitutional question head-on, the court can interpret or invalidate
political decisions in ways such that it encourages the legislature to re-think the issue.
b. For example, striking down legislation for vagueness, improper delegation, unclear legislative statements
(clear statements of intent influence interpretation) or desuetude are examples of drafting or procedural
defects that then allow the legislature to come up w/ a “revision.”
3. If the decision is narrow, that provides guidance to lower courts while leaving space for debate and discourse—
the democratic process is then engaged.
C. Critique:
1. But having a narrow decision isn’t always enough to kick the legislative process back into gear. Sometimes, a
legislature cannot reach true majoritarian preferences w/o a dictator setting the agenda. (See Canada’s post-
Morgantaler politics.)
2. And issuing a broad decision doesn’t mean that the legislature cannot “rethink”either. The German legislature
pushed back by adopting essentially the same law but w/ some tweaks—so some rethinking happened.
3. The kind of interest group mobilization to re-think will only happen if there’s enough money and deep-seeded
sensitivities to make it worthwhile to engage in contestation that leads to political, democratic and legislative
change.
D. Segal
1. Instead of trying to avoid pushback and promote engagement, let there be backlash.
2. Backlash from a broad or deep decision is good. People will yell more, debate more, giving them a sense of
ownership in the Constitution as well as a stake in the democratic project. It enhances legitimacy and stability
of the democratic system.
US
Roe v Wade
1. Women’s interest?
A. Textual basis enormously unclear
i. Liberty and due process clause of the 14th.
ii. Griswold: contraception; Douglas uses the “penumbras and emanations” of the bill of rights—right to
privacy is inherent in all these cases
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iii. 9th: rights and liberties reserved to the people; rights that predate the constitution remain (but marital
contraception was not historically an issue at the time of the founding, so 9this weaker for marital
contraception but stronger for marital privacy generally). 9thpurports to be preservative. (It could preserve
natural rights or clearly historically grounded rights).
a. US really uninterested in enforcing god-given natural rights
b. If the 9th preserves discrete rights, then one interpretation is that the court can’t use it to add on more
rights.
c. Alternatively..?
iv. Balancing (women + physician) vs (fetus + state)
a. Blackmun sees this as an interference not only w/ a woman’s decision but also the state is messing
w/the dr’s autonomy and w/ the decisionmaking done together by the dr and the woman.
b. But there’s a prob w/ this argument: if we recognize that a dr has a privacy or liberty right to make
medical calls, and the court then had to regulate that right, that would push the court into Lochnering.
v. Countervailing rights:
a. Fetal rights?
b. Health/life of the mother?
B. Precedent, c/l: fundamental rights, EPC cases and privacy cases: there’s a fundamental right to privacy that’s
derived from the case law.
C. SS and Trimester framework:
i. 1st trimester: mother’s privacy rights trump; state cannot regulate abortions
ii. 2nd trimester: state can regulate abortion procedures to protect health of the mother
iii. 3rd/Viability: fetal life is compelling, which means you can prohibit it as long as there’s a health and
life exception for the mother.
D. Trimester framework: like SS but more category based.
E. Stewart/Douglas:
i. You need to give careful scrutiny—this law is too broad but doesn’t want to go as far as Blackmun. Very
narrow reasoning, and doesn’t tell the legislature how much scope it has.
ii. Douglas: fetal life is compelling whenever state says so but this isn’t tailored properly.
Canada
Sec 7: Legal Rights
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance
with the principles of fundamental justice.
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3) Must “evaluate the particular balance struck by Parliament in s. 251 as it relates to the priorities and
aspirations of pregnant women and the govt’s interest in the protection of the fetus.” Thus the law says
fetal interests are not to be protected when the “life or health” of the mother is at risk. The Canadian
Court is double-checking on the balancing done by Parliament: when the woman’s health/life is at
risk, her right outweighs the fetal interest, whatever that is. But there is some fetal interest.
b. Is the govt interest pressing and substantial?
1) Yes, govt is pursuing the valid govt objective of protecting the fetal life.
2) Yes govt is protecting the interests of the pregnant woman when her health or life is at risk. (At that
point, the mother’s interest outweighs the fetal right.)
c. Balancing:
1) Means
A) Means are not rational or fair.
B) The procedures and administrative structures of Sec 251 are arbitrary and unfair.
2) Extent of the rights impairment?
A) Pretty bad b/c Parliament has ID’ed a class of women who should legally get an abortion but b/c
of the practical unavailability of the supposed defense to liability, women suffer psychological and
physical trauma, inconvenience or expense.
3) Legislative objective vs FX of the Limit
A) Legislative objective is actually defeated b/c of the practical barriers.
E. Beetz: Sec 7 inherently grants the right to medical treatment if your health is threatened. You should not be forced
to choose b/t criminal sanctions or protecting your health.
F. Wilson: Liberty is the key interest that needs protection:
1. Abortion is a fundamental decision that women should be allowed to make. (Uses Roe in a more favorable way
than was received in the US).
2. Decisional autonomy and dignity count. Abortion is part of a woman’s quest for equal dignity not to be
conscripted into using her body to carry a fetus to term.
3. First female justice on the Canadian Court.
G. Morgantaler left abortions pretty much de-regulated.
Post-Morgantaler Politics in Canada
A. The Mulroney govt tried to enact a new abortion policy. It kept abortion in the crim code but did away w/ the
committee, broadened the def of “health” to mean mental and psychological health and lifted the “hospitals only”
restriction.
B. The pro-life and pro-choice groups opposed the law wanting something more restrictive and less restrictive,
respectively. But their amendments didn’t pass.
C. Mulroney then re-introduces a similar compromise bill as the earlier one and orders party discipline. Warns the pro-
lifers that this is his last attempt at introducing restrictions on abortions. One house passes the bill but it’s defeated
in the other house by a pro-life + pro-choice coalition.
D. Thus the judicially created “no law” policy status continued by default and not b/c it commanded majority support
by the public or by Parliament.
E. This illustrates what happens when you have a large plurality or majority bracketed by two opposing minorities.
Neither the pro-lifers or the pro-choice people could get exactly what they wanted b/c they aren’t strong enough.
This might show that the issue then isn’t a priority to the (disinterested) majority of the voters either way b/c the
minorities can’t swing enough people to vote w/ them.
F. The priority for most govts on such “moral issues” is to avoid them b/c they cause strife, political division and can’t
be used to sway the otherwise disinterested majority.
Germany
Article 2(2)(1)
Everyone has the right to life and inviolability of his person. The freedom of the individual is inviolable. These rights may
only be encroached upon pursuant to a law.
National Coalition for Gay and Lesbian Equality v Minister of Justice (SA, 1999)
A. Facts: Sodomy law criminalized anal sex b/t human males.
B. Ackermann – Equality claim + dignity claim
1. Uses Harksen to hold that gay males have been unfairly discriminated against on the basis of sexual orientation
and that state didn’t rebut by showing fairness. (Equality claim)
2. Is there a distinction? Yes.
3. Is it on a specified ground? Yes, sexual orientation per Sec 9(3).
a. This is unique b/c in the US it’s not clear if sodomy laws are gender discrimination (a sub-gender
distinction made b/t men and women for the purposes of sexual partners) or sexual discrimination.
b. For SA, can’t separate identity and conduct—sodomy is bound up with the gay identity.
4. Thus it’s presumptively unfair.
a. And in fact look at the impx—this denies the identity of gays
5. Is unfairness rebutted? No.
a. Vulnerability of the group? High
b. Ameliorative purpose? None.
c. Dignity harms? Yes!
1) Sense of self-worth, respect for one’s self as a person; law stigmatizes, thereby violating the self-worth
prong of dignity
2) Threshold capability of dignity: do you feel safe and secure
A) Is undermined b/c of the threat of criminal sanction
B) Stressed out insecure existence
6. Ackermann also finds a separate violation of Sec 10 which grants the right to everyone to have their inherent
dignity respected and protected.
a. Sec 10: requires us to acknowledge the value and worth of all people.
b. Value and stigma:If you deny sodomy, then you deny the value and worth of gays b/c their identity is bound
up with sexual expression. Crim law stigmatizes them.
c. Breaches threshold dignity:if you no longer feel safe and secure. Gays are under the psychological stress of
being prosecuted simply b/c they engage in conduct which is part of their experience of being human.
Builds insecurity and vulnerability into their daily lives.
C. Sachs: uses intersectional approach to privacy, equality and dignity
1. Looks at the case in a totality kind of way; strongly opposed to rank ordering rights.
2. Intersectional approach: social and culturally constructed categories interact on multiple levels to manifest
themselves as inequalities in society
3. Privacy
a. There are 5 ways to understand privacy:
1) Informational: mainly a neg right to not have your personal info out in the public
2) Spatial: physical space privacy
A) But it’s overinclusive—can’t molest your child in privacy of your bedroom
B) Stigma: if done privately, it’s deviant but free from prying eyes
3) Bodily: right to make bodily decisions and be free from bodily invasion
4) Relational: some relationships have a special status of intimacy
5) Decisional: autonomy; right to d-making
b. For Sachs, relational and decisional autonomy are most important.
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1) Privacy protects people and their conduct, not spaces
2) It’s the right to self-expression and to make fundamental decisions about your relations and use of
body
c. Sachs is for all-out balancing: the privacy right belongs on the table and tilts the balance against the state.
4. Sec 36 Analysis for limitations of rights (equivalent to Canada’s Sec 1 analysis)
a. Is it a law of general application, reasonable and justifiable in an open and democratic society
b. Based on equality, dignity and freedom
c. Balancing:
1) Nature of the right that is limited and its importance in a democratic society based on equality
2) Purpose for which the right is limited
3) Is it a valid govt objective? (govt objective can include constitutional moral values)
4) Extent of the limitation
5) Efficacy
6) Necessity
7) Could the desired ends be achieved through less damaging means?
5. For Sachs, this case affects equality and privacy in terms of relational and decisional freedoms. The balance
clearly tips against the state b/c their only justification is some sense of the “moral harm principle” but reference
to some notion of morality isn’t enough unless it’s a constitutional notion of morality.
US
Bowers v Hardwick
A. In Griswold v CT, SC held that there’s a right to privacy implicit in the DPC of the 14th.
B. Held: There is no fundamental right to engage in homosexual sodomy.
1. If there was a fundamental right, use SS. To be a fundamental right, it must be implicit in the concept of
ordered liberty and/or rooted in our nation’s history. (slightly dominant understanding is that you need both).
2. If not, use RBR.
a. It’s upheld under RBR under some conception of upholding public morality. It’s ok to give effect to non-
constitutional morals (presumably so long as they aren’t purely prejudicial).
C. Burger concurrence: emphasized the historically negative attitudes about homosexual sex around the world.
Lawrence v TX
A. Held: explicitly overruled Bowers, which had been too stingy w/ the liberty interest. There is a liberty interest to
engage in adult consenting intimate relationships in private.
1. It’s spatial, relational and decisional.
2. The decision also expands the generality of the liberty interest thus it purports to address a more broader issue
than that of Bowers.
B. This case does notsay that there’s an IFR to sex though it comes awfully close. (SC is worried about the gay
marriage issue.)
C. On tradition Bowers got it wrong:
1. SC cites the European Ct of HR
2. 14th and discrimination
3. Majority rebuts Burger’s overbroad Bowers concurrence which claimed that there was a uniform western
standard on the issue. There isn’t.
4. More emphasis on stigma of gays—touches on dignity; there’s no legit state interest
D. Since Bowers:
1. Casey: strengthens idea of decisional and relational privacy
2. Roe: strengthens bodily and decisional ideas of privacy
E. Kennedy’s majority: equality and liberty are intersectional issues but if you do equality, then you will run into gay
marriage complications.
1. Use of DPC and not equality analysis to avoid putting gay marriage on ct’s docket and didn’t want states to
undermine the SC. So he’s trying to be narrow.
2. But he winds up being broad when he’s willing to use history and tradition as a starting point (not the end point)
to determine if something is deeply rooted + implicit in ordered liberty for the right to rise to an IFR (he kind of
rereads Bowers/Glucksburg to support his starting point idea).
F. O’Connor’s Concurrence
1. Would’ve used equal protection (not DPC) b/c the law was designed to target males only. Thus under some
heightened RBR like Romer, there’s no basis for drawing the distinction where the law did.
2. Would avoid including sexuality under protected liberties.
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G. Scalia’s Dissent
1. Points out that while the majority seems to be implying an IFR, they don’t say that, but they do seem to be using
heightened scrutiny. But you can’t get to that unless there is an IFR.
2. So instead, under RBR, enforcing the public notion of morality is a legit state interest.
Summary
A. Intersectional approach:
1. Sachs: if you look at all these issues in an intersectional way, they compound the problem instead of merely
adding up and tilt the balance towards unconstitutionality
2. Lawrence: equality and liberty are very closely related and may inform each other
3. It’s possible for rights to intersect and influence each other so that you may not have a violation of each
independently but can have it in the cumulative sense.
B. Dignity
1. Ackermann: dignity is front and center; includes freedom from stigma and prosecution
2. Sachs: dignity is bound up with expression and autonomy
3. Kennedy: if the goal is to protect decisional autonomy, then dignity and liberty might be two routes to get to the
same protection
A. Zablocki (SC strikes down law that makes paying outstanding child support a condition to marrying) and Loving
(strikes down laws prohibiting interracial marriage) seem to stand for the idea that there is an IFR to marriage. But
for the SC to announce the right to marry w/o paying attention to the social environment might provoke major
backlash.
B. Alternatively, look to comparative law to see if and when gay marriage could be recognized in the US.
C. Minister of Home Affairs v Fourie (SA, 2005)
1. Relevant Law:
a. 9(1): Everyone is equal before the law and has the right to equal protection and benefit of the law.
b. 9(3): The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds
including. . .sexual orientation.
2. Facts: The c/l defines marriage as b/t men and women. The Marriage Act has been interpreted to mean that
marriage officers can only marry men and women. There’s no provision to allow for gay marriage.
3. Held:
a. Sec 9(1) and 9(3) on equality have been violated. (Use Hugo-Harksen)
b. Sec 10 on dignity has been violated.
c. Sec 36 doesn’t justify the violations. Thus the remedy is to issue a suspended declaration of invalidity
whereby the legislature has 1 year to decide how to recognize gay marriage.
4. The state cannot penalize people for being who they are. Equality doesn’t mean that you extol some people as
superior to others.
5. Marriage is a significant decision; exclusion from it has major impx.
6. Sec 9 Equality and the Hugo-Harksen Test
a. Yes a distinction has been that amounts to discrimination. The relevant discrimination is b/t gays/lesbians
or same-sex couples (individual or group discrimination).
b. Yes it’s on a prohibited ground AND/OR a comparable ground
1) Specified: sexual orientation unfairness is presumed
2) Comparable ground: dignity must show unfairness
c. State must rebut the unfairness by showing fairness:
1) Vulnerability of the group
A) Very vulnerable, historic legacy of prejudice
2) Nature of the harm and dignity implications
A) Stigma: denies them respect as equals
B) Sexual conduct is bound up with identity; thus the intangible harm of not being allowed to marry
really harms dignity b/c it strikes at the core of sexual identity. Also represents the notion that
gays are outsiders and the need to protect their intimate relationships is less valuable than for
heterosexuals.
3) Interests affected
A) Hetero marriage people argued that traditional marriage is best b/c it’s based on procreation,
respect for religion, international law, and Sec 15’s limitations on the meaning of “diverse”
families.
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B) Sachs rejects:
C) To make procreation the touchstone would be demeaning to couples who can’t or choose not to
have kids.
D) Religion can’t inform the constitutional distribution of rights.
E) International law says it’s not necessary to recognize gay marriage under international law. That
doesn’t prohibit SA from allowing it therefore.
F) Sec 15 on marriage is about acknowledging diversity in marriage. While it does not itself provide
a gateway to gay marriage, it does confirm the general constitutional value of diverse marriage
systems. It is not however, a bar to gay marriage.
7. Sec 36: given the violations of both dignity and equality, does the law pass Sec 36?
a. State argued: gay marriage would undermine the institutions of marriage and offend strong religious
tendencies of the public.
b. Sachs summarily dismisses these arguments:
1) Gay marriage will in no way attenuate the capacity of heterosexual couples to marry according to their
religious views.
2) The institution of marriage will not be undermined and anyway this is extremely demeaning to gay
couples.
c. Sachs doesn’t engage the opponents more deeply b/c it will affect the meaning of the institution of
marriage. He could say that objectively, your dignity hasn’t really been affected but that would deny the
legitimate debate that rages over this issue.
8. The remedy
a. There are several options as to what the law ok’ing gay marriage could be and Sachs equivocates over the
possible options.
b. The tricky thing here is that the Court doesn’t want to antagonize the ANC who is easily in the position to
amend the constitution prohibiting gay marriage. So it would be very bad for the stability of the country
and the court potentially. Thus the court is pushing Parliament as far as it can w/o going over the line.
c. Having the legislature help to draft and pass the law ensures democratic values are instilled in the process
plus the Court wants the legislature to acknowledge some of the blame by forcing them to correct the
situation.
9. O’Ragan dissent: This doesn’t provide a solution to the claimants or to people in the interim.
D. Canada
1. In 2005, Canada passed the Civil Marriage Act which legalized same-sex marriage.
2. Re Same-Sex Marriage
a. SCC issued advisory opinion saying that the Parliament of Canada, which has legislative authority over
“marriage” had the power to legalize same-sex marriage.
b. Sec 15(1) of the Charter contains the equality provisions.
1) Egan: sexual orientation is a deeply personal characteristic that is unchangeable or changeable at great
personal cost. Public pension schemes that make benefits available to the spouses of hetero couples
but not homosexual couples violates Sec 15 sexual orientation is an analogous grounds of
prohibited discrimination
2) Vriend: Omitting sexual orientation from a state law that provided for employment discrimination
remedies from a list of prohibited grounds violates Sec 15.
3) M v H: Dignity violation occurred when law excluded same-sex relationships from spousal support
obligations but included opposite-sex relationships
4) Little Sisters: customs officials violate Sec 15 when they discriminate against homosexuals by
preventing the importation of gay obscene materials into the country.
c. Provincial cts then, in a series of cases, held that prohibitions on same-sex marriages violated Sec 15.
d. Parliament then begins discussing a federal gay marriage law. In this advisory opinion, SCC ok’s it.
e. SCC had to address the issue of whether Sec 91(26) of the Constitution Act would authorize a law that
defines marriage as include same-sex unions. The SCC held that legislative competence over “marriage”
was vested w/ the Parliament b/c the “pith and substance” of the law is “capacity for marriage.” Thus, only
Parliament (or the legislature) has the jurisdiction to define “marriage.”
f. SCC was also asked to address whether gay marriage was consistent w/ the Charter of Rights. SCC refused
to answer this question.
1) Out of a desire to get Parliament to play a role in the legalization of gay marriage, the SCC bowed out.
2) If Parliament acted, this couldn’t be claimed to be the work of unelected activist judges who were
skirting the democratic process.
g. The Civil Marriage Act picked up on this ruling by enacting a definition of marriage that includes same-sex
couples.
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Comparative Con Law 2009
E. US
1. In 2000, CA, as a result of an ordinary ballot initiative (requires 5%), passed Prop 22 which limited marriage to
heterosexuals only.
2. In re Marriage Cases (CA SC, 2008)
a. Held: CA granted marriage rights to same-sex couples by finding Prop 22 to be unconstitutional.
b. There’s a fundamental right to marry.
c. Sexual orientation is a suspect classification like race or sex, thus that sort of govt classification is
presumptively invalid b/c it usually relies on stereotypes about people who as a group, have long been
victims of discrimination.
d. CA SC subjected the CA law that only allowed heterosexual marriage to SS. It failed.
3. But CA also allows for constitutional ballot initiatives (8%) to amend the state constitution. At the time of the
article (May 2008), supporters of Prop 22 were organizing signatures to turn this into a constitutional ballot
initiative.
4. Might imply pressure for the USSC which can be seen as more strongly counter-majoritarian whereas CA SC is
more weakly counter-majoritarian due to the ease of amending the state constitution.
5. DOMA might limit the force of the CA SC’s decision.
6. Highlights the point about judges needing to be sensitive to the prevailing social climate. Forcing change might
effectively galvanize the opposition and lead to backlash.
F. Summary
1. Sachs seems to deliberately equivocate:
a. Intentionally deep on granting the right to marriage
b. But not quite so for the remedy
c. Intentionally creating some ambiguity in case there’s pushback; there’s a real risk of pushback given how
permissive it is to amend the Constitution so don’t want to be too counter-majoritarian
d. O’Ragan: would grant the remedy right away
2. Benefit of a delayed remedy;
a. Democratic input from the legislature esp when:
1) More than 1+ constitutionally permissible solution
2) Choosing b/t them should be done by popularly elected people
3) Inertia: the unwillingness to adapt might change if court squarely puts the issue on the legislature’s
docket
3. Fourie highlights the importance of religious objections.
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A. Prince
1. Facts: Prince wants to practice law but he can’t pass the last step in the application process unless he promises
to stop using marijuana. Prince says he can’t foreswear marijuana use b/c it’s required by his Rastafarian
religion which uses marijuana in various ways other than just smoking it. Prince claims that the criminal
prohibition on possession and use of marijuana w/o a religious exemption violates Sec 15. If he can prove a
violation, then burden shifts to state to justify under Sec 36.
2. Majority: Yes Sec 15 FoR has been impaired. But under Sec 36 balancing, the state’s objectives outweigh
granting an exception for the religious rights of Rastafarians.
a. Cites Smith
b. The validity of the general prohibition on possession and use of marijuana is valid.
c. Sec 36 balancing comes out for the state. If it were allowed, the state’s ability to police the marijuana trade
and use would be severely hampered since it seems to largely depend on self-disciplined use of it.
3. Dissents: Ngcobo and Sachs
4. Ngcobo: w/ the majority on Sec 15 FoR, dissents on Sec 36 analysis
a. Sec 15 FoR is violated.
b. Freedom of religion means:
1) Freedom to believe; freedom to announce beliefs publicly w/o fear of reprisal; freedom to worship and
practice, teach and disseminate
2) Thus forcing people to act contrary to their religion violates FoR
c. Majority will not get into evaluating the “centrality” of a practice to religion:
1) Competence prob: cts not good at doing that; plus minority religions are likely to get more second-
guessing
2) The very process of saying that something isn’t actually that important to your religion is more
insulting to dignity than to say that your conduct should be subordinate to a gen law
3) Making calls on the centrality of practice turns the judge into a pseudo-priest—too much govt-rel
entanglement.
4) Belief is very protected but the conduct distinction is trickier.
d. Sec 36 Analysis
1) Test:
A) Importance and purpose of the limitation?
B) Rational connection b/t the limitation and the purpose?
C) Is it minimal impairment or are there less restrictive means to accomplish the same ends?
D) Proportionality
2) Application
A) Importance and purpose of the limit:
i) Health harms, dependence harms
ii) International obligations to curtail marijuana trade
B) Rational connection: Yes clearly.
C) Impairment
i) Prince argues for an exemption; says a permit system could be a narrow way of granting
exemptions
ii) State: can’t tell true adherents from fake ones; admin expenses would be high; marijuana
is harmful
D) Proportionality: nature of the right vs nature of the limitation
E) Proportionality
i) Legitimate interest but have to find an accommodation; international obligation is
downplayed b/c domestic constitution is a higher order law
ii) Permit system could work
Ngcobo Sachs
• Would force the govt to prove justification on the • Takes intersectional approach to rights violations
limitation for all the diff ways that Rastafarians use • Connects religion to equality and equality to dignity,
marijuana, and not just consumption thus religion = dignity
• More evidence on workability—state hasn’t proven • Equality: the drug laws undermine tolerance and
that the scheme is impossible or that it will totally respect for diversity
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Comparative Con Law 2009
undermine the objective • Dignity: forces religionists to choose b/t respecting
• This makes practicing Rastafari criminal the law and respecting their faith
• He is willing to get into the centrality of the • Contextualizing the balance: this has to do w/
marijuana to the Rastafari religion b/c he argues African identity and pride; the Rastafarians have
that since it’s a key part of their religion, they been denigrated and mocked but b/c it’s part of the
should be stigmatized as criminals—pluralism and African heritage, it should be allowed to flourish.
tolerance for others It’s used to achieve an Afro-centric communion w/
nature and religious practice. To denigrate
Rastafarianism as worse than Catholicism is to be a
white colonial snob. To denigrate Rastafarianism is
to denigrate African culture and nationalism.
• So allow for discretionary application of the law w/
the pragmatism of a permit system and humility
about other religions vis a vis this Afro-centric one
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Comparative Con Law 2009
5. 3 positions:
A. Scalia
B. O’Connor + center SAC
C. Sachs
6. Sympathetic plaintiff
7. Judicial competence
A. Major explanation of the diff
B. Discomfort w/ balancing for Scalia
8. Diffs b/t countries: all SAC members are liberals; all appointed by the ANC
9. Centrality: both US and SA reluctant to get into what’s “central” to a religion or how important it is from a religious
perspective.
A. But sometimes SA finds that it’s unavoidable b/c it comes up in the balancing
B. O’Connor: is willing to look into it a bit
10. Extent to which diff judges have diff notions of pluralism:
A. Explains majority/minority in both countries
B. Pluralism 1: let it play out in the civil sphere (Scalia in Smith)
C. Pluralism 2: pluralism requires effort on behalf of the state to give max protections to diff religions in the way
of accommodations; tries to treat groups equally to allow religion to flourish.
11. What role do cts play in all of this?
A. Judicial competence
i) Scalia: judges are bad at this; due to dem concerns, let the legis figure it out
ii) Everyone else: judges should do this kind of balancing
B. US: rule-likeFEC is only violated when the state has the purpose of burdening the free exercise of religion as
its practice. Otherwise it gets RBR. Exceptions:
i) Unemployment comp/individualized exemptions system
ii) Hybrid rights
Germany
Article 6: Rights of the Family
1. Marriage and family enjoy the special protection of the state.
2. Care and upbringing of children are the natural right of the parents and a duty primarily incumbent on them. The state
watches over the performance of this duty.
Article 7: Education
1. The entire education system is under the supervision of the state.
3. Religious instruction forms part of the ordinary curriculum in state and municipal schools, excepting secular schools.
Without prejudice to the state's right of supervision, religious instruction is given in accordance with the tenets of the
religious communities. No teacher may be obliged against his will to give religious instruction.
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Comparative Con Law 2009
a. “Passive”-
1) It’s possible that no monument can be “active”
2) Proselytizing: advocacy, promoting, pushing, “actively promoting”
3) This is passive for the court that people wander by, and it’s not in your face.
5. Meaning of the monument: (Thomas)
a. The monument doesn’t mean that you should be Christian etc.
b. This has a social conduct/moral message
1) Breyer, concurring in the judgment: key opinion of the case
6. The monument + message is not just religious, but also historical and moral message
7. It’s also one monument of 22 (framing issue: it’s 1/22, whereas dissent says 1 monument)—the selection of the
frame will influence the meaning you get out of it.
8. The fact that the entire display seems to consist of arbitrarily selected monuments works in its favor—it’s part
of the big mix and so is our culture.
9. So if govt tries to reflect that mix, that’s generally ok.
10. Sees no test to tell how to decide this test.
11. Wants to judge this by general principle of what he thinks the EC is about, context judged in relation to the
specific facts and consequences of this particular case and of the EC.
a. Thus there are high floating principles: ie don’t favor one religion over another
b. EC: the political battles should not be compounded by religious strife; so avoid religious strife.
c. Removal of this monument will actually increase strife
B. German Prayer and Crucifix Case (1979)
1. How do you treat prayer in public schools?
a. Claimants are asserting their right to do their own religion and have their kids be free from religious
persuasion—freedom from religion. The state is asserting a positive right to worship.
1) Christian religious majority has a positive right to practice their religion under Art 4(2).
2) Non-Christians asserting their right to be free from religion under Art 4.
3) So it’s Art 4 vs Art 4.
b. Held: As long as the prayers are voluntary and non-adherents can opt out, the constitutional balance is
struck.
c. The fact that opting out leads to singling one’s self out as non-participants or might be difficult for young
kids isn’t enough to get rid of the prayer. The role of the teacher and conditions in the school will protect
against discrimination against the non-participants.
d. Could you get rid of prayer altogether?
1) Probably not. If Christians have a positive constitutional right to prayer in public schools per Art 7,
then Art 4 probably establishes a minimum for school prayer though voluntariness is the touchstone.
Coercion into prayer is the upper bound.
2) Christianity is a state-preferred (not state-sponsored) religion. Thus Germany has a hybrid approach
whereby the dominant religion can be recognized as the dominant religion but it’s not supported by
taxes.
3) It’s also ok to affirm Christianity w/in the context of secular disciplines as a formative culture and
educational factor in Western history.
2. German Crucifix Case
a. Bavarian ordinance required posting crosses in public classrooms.
b. GCC says this violates the Art 4 rights of nonadherents b/c they can’t “voluntarily opt out.” Crosses, unlike
school prayer, have no opt out ability thus they seem closer to proselytizing whereas prayer has cultural and
historical value.
c. O’Connor would say that kids are more susceptible to coercion and that opting out singles one’s self out
and makes one more of a target.
C. German Headscarf Case (2003)
D. Wallace v Jaffree
36