Barren v.

Baltimore
Facts: John Barron was co-owner of a profitable wharf in the harbor of Baltimore.
As the city developed and expanded, large amounts of sand accumulated in the
harbor, depriving Barron of the deep waters which had been the key to his
successful business. He sued the city to recover a portion of his financial losses.
Question: Does the Fifth Amendment deny the states as well as the national
government the right to take private property for public use without justly
compensating the property's owner?
Conclusion: No. The Court announced its decision in this case without even hearing
the arguments of the City of Baltimore. Writing for the unanimous Court, Chief
Justice Marshall found that the limitations on government articulated in the Fifth
Amendment were specifically intended to limit the powers of the national
government. Citing the intent of the framers and the development of the Bill of
Rights as an exclusive check on the government in Washington D.C., Marshall
argued that the Supreme Court had no jurisdiction in this case since the Fifth
Amendment was not applicable to the states.

Crt told him this is a state or local ordinance, therfore u cant look to the national
gov. to protect ur rights, ur recourse is w/in the states that was before we hit
the civil war…the aftermath of war is the Reconstruction era 1965-77 the national
gov, was under the control of the radical republicans ( absolutely 100% committed
to reworking the structure of system) civil war taught us that the states are
not to be the guarantor of individual rights:
a. 13th A. bar slavery & involuntary servitude (186, wasn’t far reaching
enough
b. 14th A. (john Bingham from Ohio, notions of privilages & immunities were
not enough, need to make sure that former slaves can protect themselves
in the poltical process
c. 15th A. guarntees right to vote w/o regard to race
a. The effect of these reconst. A, & the 14 th A. in particular is to flip
individual rights system upside down the fed gov. not the state
is who protect individual rights.

PRIVILAGES & IMMUNITIES

Page 298 the slaughter House cases.
Facts of the Case: Louisiana had created a partial monopoly of the slaughtering
business and gave it to one company. Competitors argued that this created
"involuntary servitude," abridged "privileges and immunities," denied "equal
protection of the laws," and deprived them of "liberty and property without due
process of law."
Question: Did the creation of the monopoly violate the Thirteenth and Fourteenth
Amendments?
Conclusion: No. The involuntary servitude claim did not forbid limits on the right
to use one's property. The equal protection claim was misplaced since it was
established to void laws discriminating against blacks. The due process claim simply
imposes the identical requirements on the states as the fifth amendment imposes
on the national government. The Court devoted most of its opinion to a narrow
construction of the privileges and immunities clause, which was interpreted to
apply to national citizenship, not state citizenship.

The ordinance created a monopoly bcz, they can sell at a lower price & sell more
dues to the regulation…while the states said this is purely regulation to protect
public health & welfare law…but under the surface there MAYBE a special interest
or some other motive. Butchers pointed to 13, 14, 15 A, the crt. dispose of 13,
looks at the 14th A. 14th A. protect privilgaes or immunities ( ind. Rights) of citizens
of the U.S. ( not citizen of A State)  the crt said there aren’t many rights that
flow to you from being a citizenship in the U.S., u enjoy rights under Ur state.
Page300-01 this case is an illustration how the crt. got it wrong on privileges &
immunities. The slaughter house cases Choked the Immunities & Privileges
clause while still in the crib.

McDonald v. Chicago
Refused to overturn & said let’s stick to the Due process.
Sanz v. Roe is the only case that got it right, agreed based on the privileges
& immunities clause right to interstate travel is Fundamental right,
protected by the crt. Through the privileges & immunities clause not Due
Process..
Slaughter house cases w.r.t Privileges & Immunities is still good law.

SUBSTANTATIVE DUE PROCESS;

Lochner v. NewYork
 Crt. decided that liberty includes the right to contract.
 Problem with Lochner is that it made liberty too broad, no textual basis at
all, it found a right out of thin air.it is not tethered to the const rights
 Crt can find anything a subst protective right.
  Crt is involved in a legislative function…wipe out the political process as we
heve.
 Problem is “when do we decide we want the elected majority to decide &
when we want the judicial branch to step in, cz. sometimes its good that the
judges act in this counter majoritarian way
 This case is like a bad word today, accuse some of lochnerizing , supreme crt
was following a lase’ fair policy.

Institutional Competence Argument:

Conter Majoritarian difficulty/ Paradox:
The Right arg: ind. Rights v. Rights of Society

THE MILK CASES

1) NEBIA V. NEWYORK-
Facts: To combat the effects of the Great Depression, New York adopted a Milk
Control Law in 1933 which established a board empowered to set a minimum retail
price for milk. Nebbia was a store owner who violated the law. Minimum price9
cents a quart, he takes pity on a poor woman & sell it for less….he was busted by
the New York milk police for selling it at 6 Cents,
Question: Did the regulation violate the Due Process Clause of the Fourteenth
Amendment?
Conclusion: No. In a case which included a lengthy discussion of the Due
Process Clause, the Court held that since the price controls were not
"arbitrary, discriminatory, or demonstrably irrelevant" to the policy adopted
by the legislature to promote the general welfare, it was consistent with the
Constitution. There was nothing "peculiarly sacrosanct" about prices which
insulates them from government regulation, argued Justice Roberts.
 Equally fundamental is the right of the public to be regulated by the Public
rights interest.
 Puts the right of Society apar with Ind. Rights.
 So long not arbitrary, Discriminatory or capricious. ( before the crt. used
the language of eth rational basis review, etc)
 So long as not arbitrary or Discrimnataory, the economic regulation will be
uphled,

2) Carolene Product: most famous case in the history of Const. law,

specifically foot note 4.
  Filled milk was much cheaper, so companies that manufactured was
poping up…looks like regular milk but cost much less cz. made of water
of the milk with some added fat & color. The dairy industry wasn’t
amused: misleading the milk consuming milk. (adulterated Product, lol).
Legilature made it illegal to sell filled milk, Milk Nut company made
Filled Milk was busted, company argued “ freedom of K” .
 The crt. put the Final nail in substantive due process couffin…
applying a presumption of constitutionality and applying minimal
scutiny to an economic regulation, “any set of facts know or that
the crt may reasonably assume will suffice” … the Burden is on
the Challenger to overcome that presumption even if the law say
absolutely nothing abt, why its created, & the gov. say nothing to
justify the law, if the crt have any record facts Or can assume facts
that supports the law, Gov. wins.
 Following Cases: any conceivable purpose was sufficient- Since
1937 not one law has been declared un-constitutional by the state
as violating economic Substantive due process.
 Applies to Economic & Social Cases

Foot Note 4:Footnote Four established the rational basis test for economic
legislation, an extremely low standard of judicial review. The "rational basis test"
mandates that legislation (whether enacted by Congress or state legislatures)
which deals with economic regulation must be rationally related to a legitimate
state interest.
Therefore, Footnote Four outlines a higher level of judicial scrutiny for legislation
that met certain conditions:
1. On its face violates a provision of the Constitution (facial challenge).
2. Attempts to distort or rig the political process.
3. Discriminates against minorities, particularly those who lack sufficient
numbers or power to seek redress through the political process.
1. Law touches upon some right that is enumerated in the text of
const or bill of rights/ specific textual provisions
1. The presumption of const. is not going to be
appropriate if it touches upon Fundamental rights;
they can be
1. Textual
2. Non-textual: Privacy or autonomy
 2. Laws that skew the political process: if you don’t
like something you go to the ballot & vote against-
this will work if there is an equal society, fair
political process..Law affect those we will examine
more.
3. Law that discrm. Against Discrete and insular
minorities:
1. 3 types of minorities are named: Race,
Religious, and National Origin.
2. Discrete: makes this group more easily
identifiable
3. Insular: this group forms their own
communities, thus they / it will be more
isolated from rest of society.
This higher level of scrutiny, now called "strict scrutiny", was first applied in
Justice Black's opinion in Korematsu v. U.S. (1944).
 The case is a shift to what we cal l Fundamental rights, we
don’t call it Substantive Due process anymore, those are
words that refer to the lochnerar area, the crt is in the
business of funcemental Rights & Out of the business of
Substative Due Process .

Willamson v. Lee Optical:

Facts: An Oklahoma law prohibited persons who were not licensed optometrists or
ophthalmologists to fit lenses for eyeglasses. Non-licensed individuals were also
prohibited from duplicating optical instruments without written prescriptions from
licensed ophthalmologists. The Lee Optical Company challenged the law, bringing a
suit against the state Attorney General, Mac Q. Williamson.
Question: Did the Oklahoma law violate the Due Process Clause of the Fourteenth
Amendment?
Conclusion: In a unanimous decision, the Court held that while the law may have
been "needless" and "wasteful," it was the duty of the legislature, not the courts,
"to balance the advantages and disadvantages of the new requirement." The Court
emphasized that "[t]he day is gone when this Court uses the Due Process
Clause of the Fourteenth Amendment to strike down state laws, regulatory of
business and industrial conditions, because they may be unwise, improvident, or
out of harmony with a particular school of thought."
  The crt goes on saying the legislature MAY have though
concluded, example of the crt. can assume facts.
1) Ordinary social or economic regulations-  any set of facts either known
or that can be reasonably be assumed will pass the muster , these
legislature goes to court with a presumption of constitutionally, burden
on the challenger, Rational basis review, ( look for things like police
power, etc)

ADD TO ANALYTICAL MODELS ANALYSIS

a. Overbroad and under broad laws: fit between ends and means.
i. Rational basis review: any legitimate interest (ends) crts.
will also examine the means ( what is it that the laws
regulate)
1. Example: gov. ban on driver lic. For persons who wear
eyeglasses?
a. Both overbroad & under broad:
i. Under broad bcz. no restrictions on those
who don’t wear glasses but drive like crap
ii. Overbroad bcz. Restriction discriminates
too much against people who wear glasses.
iii. If the law is only subject to Rational
basis review over breadth and under
breadth is not going to fatal.
iv. Operaters permit not a fundamental
right…
v. HOWEVER, if the rule is subject strict
scrutiny Overbreadth will be fatal,
Underbreadth will be subject to many
factors:
1. Degree
2. Pretext to gov. interest. Gov.
trying to swing smthng. Diff than it
claim
a. Generally Strict scrutiny
means must always be the
least resrrtictive.
Right of privacy also known as Right of autonomy: autonomy relates to
personal decisions ( marriage. Children, how to raise your kids, their faith,
values etc. / autonomy is the right to live your life the way you want at least
w.r.t these kinds of decisions.
Argument Forms: arguments we use in any topic/ same pattern of arguments
are used in many topics and at any age.
1) Rights Based argument: I have the right to do “X”
a. Response might include:
i. No you don’t have that right
ii. Maybe you do have that right but the society/community also
has rights involves so the society can limit your right to do “x”
1. If I wanna paint my house orange with blue pokadot on
it its my right: you live in subdiviosn we argue that no
you don’t have that right OR; you don’t lkive in a
subdiviosn, you might have that right but as a
community we have the right to preserve the value of
our house-our rights outweigh your rights;
2. Rights of Ind. V. Rights of Society is The Counter
argument to Rights based arg.
a. Rights in this area are not necessarly opposing ,
they can fall on one extreme, the middle or
i. One side Ind. right: anarchy
ii. The opposite end, society right:
totalitarian society.
b. This is one of the primary concerns of all of the law; balancing ind.
Rigts v. right of society.
2) Responsibility based argument : always used torts & crtiminal law, these
two are all about assigning responsibility for certain rights .
a. Individual Responsibility argument form
b. Society responsibility argument form
i. While you want to maximize your ind,. Rights, society might
want the opposite.
1. In contrast to rights based arguments; rights fall
on continuem:
a. Ind responsibility max social right min
Anarchy
 b. Soc. Rests maxInd right max
totalitarian
i. No liability w/o 1) Act , 2) intent ,
3)Causation & 4) harm/injury.
3) REALIZABILITY: (not ind. V. society)
a. Formally realizable: one size fits all rule, rule is easy to
understand & easy to administer.
i. E.g: 45 m/hr on the road regardless day or night, weather etc.
b. Substantively realizable: one that is not bright line ( fuzzy
around the edges) concerned more with facts & circumstances …
objective is to result in fairness in every instance.
i. Eg: drive under a safe speed under reasonable speed under the
circ. In both examples the objective is safe driving, but this
hypo doesn’t clarify, & what is reasonable might differ based
on your age, driving record, weather, time of the day…many
other factors to decide whether you were driving reasonably
under the circumstances….Not easy to understand &
administer.
1. Realizability refers to rules & standards.
2. Just like other two it a spectrum.
a. Answer to formally realizable rule: maybe it
isn’t so easy to administer, that depends on
circ. Type of radar gun, was it calibrated,
tested..etc. although it seems like a bright line
it can still be attacked under circ.
i. Other arg. Maybe it doesn’t produce the
most fair & equitable rule.
c. Institutional arguments: compares 2 institutions & argue that one
of them is more suited than the other. E.g: leg. V. legislative should
decide the best suited to make a decision.
d. Precedent:
i. Analogy v. Distinction
ii. You like the should the precedent you like you analogize
iii. You don’t like you distinguish
e. Utility or consequentiality argument:
i. You like you agree that it produces good results/consq.
ii. You don’t like a rule you argue that it will produce a parade
of hossibles consequences.
 f. Equality: persons who are similarly situated should be treated the same
by the law.
i. You like a rule that applies to a group: you say there is no
distinction between us, y
ii. You don’t like you say we are different characteristics than
them, what applies to them doesn’t need to apply to us.

Griswold v. Conneticet
Facts) Law makes it illegal to use contraceptives to prevent pregnancy by anyone.
Can’t council or advise anyone to use for the purpose of preventing pregnancy
then you are guilty of criminal offense.
Rule) penumbras emanate from various textual amendments to the 1st 8 A. of
the const. creating what we think is a zone of privacy. (Page 379-
institutional argument. crt said this is not our job, it the legislature to make
those kinds of calls- Counter argument that legislature not best fit to take ind.
Facts & circ. when passing a law/ they pass laws that are more generalized not
taking ind. In consideration, but the courts can)
Rationale) court said that this is an overbroad law, in Fund. Rights Over breadth
could be fatal. State has gone further in this regulation than it needs to.-decision
made in 1965- at a time where the justices can relate; nobody wants the gov.
telling them what to do with their sex life. Intimate contact between married
partners is a private issue (note than under the same rational judge can’t relate to
abortion).
Penumbras didn’t take hold, but Zone of privacy did take hold herein after/
we are no longer concerned with anchoring some fund. Rights to text-

 Justice Harlan concurring opinion (page 383-4 th paragraph) –in

his Poe dissent articulates the basis of the crt. Later coming up
with what we call today fund. Rights.
o Due process is abt. Balancing the right of ind. V. rights of
society.
 Justice Black is a textualist bcz. its not political in itself-
however he was of the opinion that the 1st 8 A. are
incorporated in the 14th A- total incorporation view ( was
never formally adopts but as a practical cases we are there)
o 5th , 7th & 8th A. are the onl;y 3 A. that have not
been incorporated as aginst the states.
  He says that gov. has the right to invade our
privacy unless the text of the const says
otherwise.
 Black was for so-called mechanical incorporation, or
total incorporation, of Amendments 1 through 8 of
the Bill of Rights.[6] Black felt that the Fourteenth
Amendment required the States to respect all of the
enumerated rights set forth in the first eight
amendments, but he did not wish to see the doctrine
expanded to include other, unenumerated "fundamental
rights" that might be based on the Ninth Amendment

Village of Belle Terre v. Boraas is a United States Supreme Court case in which
the Court upheld the constitutionality of a residential zoning ordinance that
limited the number of unrelated individuals who may inhabit a dwelling.
On the other hand in Moore v. the city of East Cleveland-the crt. invalidated
the ordinance bcz. this is an intrusive violation of the family. Holding) It’a
fund. Right to live together with people who you are related to by blood,
adoption or marriage Rationale) the notion of family is deeply rooted in the
nation’s history & tradition
a. Is this a fund rights?--> is this a right that has been afforded historically &
traditionally
b. Palko v. Connecticut is the most invoked: is this a right that is implicit in
the concept or ordered liberty ( what he hell does that mean??? No Clue)
c. Very shady ambiguous standard-that’s why crt always look at the
history & tradition if the right has been afforded protection of the
law.

Right to Marry is a fundamental Right?

a. Zabloski v. Redhail: Law was that you cannot get a marriage
certificate if you are behind on child support & your kids likely to
become wards of the state. P. was denied the right to marry because
he was behind on his child support obligations to another woman- law
was struck down under the “ fundamental right” prohibition.
Prohibition against marriage is subject to strict scrutiny; regulation
must not significantly interfere with the decision to enter into marital
relationship or block a certain class.
 The law seems to premised on the idea that people on the
idea that people only have children through wedlock-
 which is not true, this law is under-inclusive-it doesn’t do
anything to prevent you from incurring more financial
obligations.
 Under-inclusive to took onto account other issues of the
state.
 a law is broad if it blocks a certain class.; it impact
one group of people more than other, in this case
there’s a disproportionate or discriminatory impact or
effect i on people of low-income.
b. Loving v. Virginia: law stated that if you are white you cannot marry any
nonwhite with one exception can marry the direct dissent of Pocahontas.
State argued that this law treated all people similarly situated the same. H)
Right to marry is fundamental ( & the law also violated equal protection
doctrine which we will get into later)
c. Turner v. Safely: Struck down prison regulation preventing inmates
from marriage without permission.
d. Troxille v. Granville: series of decisions that began early in the 20 th
century (Myer v. Nebraska: L. barred teaching in school teaching
anything but English H) parents decide how to bring up kids, this is
arbitrary interference. & pierce against society of sister: all children
have to go to public schools. Crt. struck cz. it irrationally interferes.)
parent wanted visitation of grandkids after father could committed
suicide. there was no showing that the mother was unfit- H) this law
infringed on the mothers right in the upbringing of their children.
Parents have a Fund. Right to the care custody & control to the
upbringing of their children.

CLASS 4

Lawrence v. Texas -GAY RIGHTS-there is a constitutionally protected right

or liberty interst (not fundamental)consenting adults engaging in private
intimate behavior (Overruled Bowers)says nothing abt. Right to marry or any
sort of formal recognition.
In Bowers Does const afford a fund right to engage in homosexual acts?
Dissent said it should be abt. The right to be left alone?
Still Georgia law was upheld w/o saying it’s a right or
In Lawrence the Justice framed the issue differently: right of adults to engage is
consensual sexual conduct- still in Lawrence the crt. refused to create a
 fundamental right to engage in S.C/ didn’t create a suspect or quasi suspect
classification- but still under the rational basis review struck down the law…no
“legitimate interest” of the state in regulating this kind of intimate private
behavior ( although they could have easily up w. one) in between the lines its
about that the gov. can’t discriminate against unpopular group.
“don’t ask don’t tell” -Witt case ( decided last week) : a move away from that
decision- woman terminated from her job at air force bcz. she’s a lesbian- 9 th
circuit appeal crt. Announced the wit standard:
1. Said we don’t think the Lawrence case was a rational basis standard-
created a new standard applicable to “don’t ask don’t tell”
a) The gov. bears the burden of showing of harm to unit cohesion..as
result of her being in the unit
b) Remanded to District crt, jury decided that gov. failed showing
harm. To unit cohesion.
c) It’s a gov. burden has shifted to the gov.
d) Substance of the burden have changed/ Increased the of the
burden on the gov. from mere rationality.
GAY MARRIAGE: At least right now-courts is staying out of the fight (except
for few states) they are leaving it for the legislative bodies (institutional
competence argument/ response is of course it is their duty to protect the
fund. Rights of minority)
Even people in jail have a fundamental right to get married.
LIST OF RIGHTS THAT THE CRT. HAVE RECOGNIZED AS FUNDEMENTAL:

Is there a fundamental right to same-sex marriage? Narrow characterization of

the right by looking at history and tradition ( if defending it you characterize
more broadly- saying marriage is marriage/ history & tradition in protecting
marriage).
At exam : the g. hypo will not be a regulation baning jack & jill marriage?it
will be something outside these catagories. (look for history & tradition)
rational basis if not, strict scrutiny if it is. But start by arguing history &
tradition- play broadly & Narrowly game we did earlier

Fundemental right analystical model?

1) Is it a fundamental right?
a. Is ist right that historically & tradionally received protection
under the lawi
 i. NO Rational basis review.( if a law passes R/B const,
Fails due process violation)
ii. YES--> q #2
2) Does the law substantially impair the exercise of this fundamental right?
a. The crt. have never answered substantial impairmant
i. Does it cise ifssm that the law is aiming at / touch upon the
exercise of this right?
ii. If so does it do so in a substatntial way?

e.g: case of subst-impair-Moreno social security disability benefits case-diminhed

s.s benefit affects the right to marry/ married pple get $20 less a month is s.s
benefits.- crt. would say congress is doing that to allocate benefits- the intent
not discouraging marriage + people. Who want to marry are not affected by
something so small- this is a case where the law incidentally touches on marriage.

3) Not Substantial Impairmaint Back to rational basis review

4) Substatntial impairment strict scrutiny
i. Note step 1 & 2 burden on challenger
ii. Step 3 & 4 burden shifts to gov. to find compelling intersest
( dble check)
5) GOV. MUST SHOW THAT IT HAS USED LEAST RESTRICTIVE MEANS
TO SATISFY COMPELLING INTERST.
Notice that the crt. will let the gov. get away with whatever interst it says is
compelling & then kill on the least restrictive means-
6) No compelling interst OR not the least restrictive meant DUE
PROCESS IS VIOLATED

2nd A. ( copy from the end of the book)

ABORTION- A fundamental Right to have an abortion.

Roe v. Wade: set up the trimester analysis- still good law.
Casey: Controlling Law today-
Late term abortions-

Page 388- the isenstat decision- “ if married pple. To use contraceptive (Griswold)
then a non-m have the same right”—Extended right to use contraceptive to both
married & un-married
Carey_ Restriction on the use of contraceptive to person under 16
All stem from the right to have children/ or not to have children.
Roe v. Wade: Norma ( Roe) wanted to have an abortion- Texas law barred
although she claimed to was raped by a gang- argue that under Griswold part of the
privacy right extend to right of privacy not to have children- Texas claimed it had
interest in maternal health & life of the fetus. The crt. said that those interest
don’t justify banning abortion. The interest in protecting the woman’s health Texas
claim is too broad/Trimester approach-
1) Up to the point of 1st can’t impose any restriction that it won’t impose
on any other procedure. Rationale: rate of mortality not affected up
until 1st trimester- prior to that it’s the doctor decision whether a
pregnancy should be terminated (weird verbiage)—BASICALLY left it
between woman & her doctor.
Texas said this potential/prenatal life is a life, that person entitled to Due Process
of the law court said. NOPE, as the term said in the const. person doesn’t include
the unborn / when does personhood starts is debatable bcz. personhood is a
concept distinct from life.
Finest minds can’t decide the answer of when does life begin- then we can’t
(institutional competence argument).
When it comes to protect prenatal life the state’s interest becomes compelling
at the point of viability (viability: fetus can survive w. or w/o woman’s body w.
or w/o art. Support) at that point the state is free can ban abortion all
together so long 2 exception: 1) preserve maternal health & 2) protect
maternal life.

Proponents of abortion tried to overturn it Roe v. wide totally - unsuccessful , so

they tried to impose restrictions to eventual to make it useless; we see that in
funding case ( Maher v. Roe) & ( Paris v. Mclay):
- Does Gov. need to provide facilities or personnel to provide abortions?
No, Failure to fund & provide faculties, personal, equipment don’t
substantially impair the right to have abortion these only need to
pass the rational basis review.
- Webster Decision:
- Minor’s right to abortion- can get abortion w. parental or “ judicial
Bypass” , state cant say that a minor cant get w/o parental consent is
Un_Q, but if a state allows either parental consent Or some form of
“judicial bypass” then it’s Q- ( bypass she has to convince the crt.
she is mature enough to make this decision w/o parental notice or
consent, OR that having an abortion is in her best interest).
 - Spousal Notification Or Consent: Un-Q
- What abt biological father? Never been asked, probably same answer.

Casey: was about to overturn Roe v. Wade, Justice Kennedy changed his vote at
the last minute- 3 Justice opinion in Casey ( kennedy, Suiter & O’conner)—the
central holding of Roe v. wade should be affirmed- that the state has
compelling interest at the point of viability, UP TO THE POINT OF
VIABILITY the gov. may not impose an UNDUE BURDEN ON THE
ABORTION RIGHT—an undue burden is any regulation adopted by the state
that has the puRpose or the effect of placing a substantial obstacle in the
path of a woman who seeks to abort a non-viable fetus
Thus any regulation AFTER viability is not an undue burden.
Any regulation prior to viability that is an undue burden is Un-Q.

The state today is the undue burden standard— kept the Roe v, wade
exception: Mom’s health & mom’s life.
Pre-viability regulation:
1) If intended only for state interest & preferential for childbirth is an
undue burden.
2) What kinds of restriction did case approve or re-affirm:
a. O.K 24 hr. waiting period ( for minors 48 hrs O.K)
b. Informed consent is O.K
c. Informed consent provided by physician Only-O.K
d. Re-affirmed that a restriction on choosing abortion by minors O.K
so long that there is a judicial bypass alternative is available.
e. Record-keeping requirements for abortion providers O.K —Mr.
Clyde something. Political requiring abortion providers to turn in their
records bcz. he wanted to find out abt. Rape or insest, crt. said Un-Q
—
f. Not-Q spousal consent or notification
g. What if you live in Wyoming, Only one abortion provider in the
whole state, have had to drive far or rent a hotel (pay $), is it
O.K the 24 hrs. Waiting period?
i. Abortion restrictions burden mostly poor woman.
3) Fundamental Rights Model doesn’t apply to Casey any longer— It is the
Undue Burden Model…( Not strict scrutiny test, not Fund. Right test)—
Abortion still legally a Fundamental Right.
 4) Late term abortion— known as partial birth only bcz. the way it is
performed,
a. Stenberg case: state passed ban on partial birth w/o exception to
mom’s health or life. Supreme crt, struck down—
b. Federal Partial Birth Abortion Ban—almost identical to Stenberg
struck down by court.
c. Gonzales Case: the ban is Q, notwithstanding the exceptions for
woman’s life or health. Claim that the state interest is abt. The
mechanism— that creates a state leg. Interest—went as far as
putting the life of prenatal life ahead the life of the mother. MAIN
POINT IS THAT THE COURT DIDN’T EXTEND THE EXCEPTION
TO PROTECTION OF MOTHERS HEALTH

d. Keep in mind that these principals extend to morning after &

abortifacions medication—freezing & storing embryos, cloning,

Next week- Equal protection

Racial classification
PUT THE ANALYTICAL MODEL FROM JENNEFIR..

GVR-Grant Vacate Remand

 One action
 grants cert. vacates it from their docket, and remands it back down to the
lower court to make the decision.
CVSG-Call for the Views of the Solisitor General
 Ct asks the SG to write a brief on if cert should be granted or denied.
 SG is sometimes called the 9th justice Review DP

Do a model of Equal Protection Doctrine before we discuss the cases.

Review DP Doctrine
We know that we are in the era of so called fundamental rights, which is Dp by
another name. When we are concerned DP of law we are concerned with the 4th
and 5th amend.
GR: ordinary garden variety liberty interests, these protect life liberty and
property. IF we are talking about a GV ordinary : standard is RB: challenger has to
show either that there is no legitimate gov. interest OR that the means the gov
has selected are not rationally related to achieving that interest or BOTH.
These laws enjoy a presumption of constitutionality. Gov. has the ball in its favor.
This law will be upheld if any set of facts either known or might reasonably be
assumed for the law . . . cts will play the what if game.
The fundamental rights? how do we know that a liberty interest is also a
fundamental right? we look to history and tradition, we ask . . .
if the ct can pinpoint such a hist. or trad. than this is more likely to be a
fundamental right.
When analyzing a claimed right, you need to be able to play the . . . it is easy to
articulate the right very broadly or very narrowly.
See Diagram Pg. 2
When we are talking about means testing, and we are talking about the least
restrictive means, law is under inclusive if leg. has not solved the entire problem,
but only addressed a portion of the problem but left the rest untouched.
law is over inclusive if . . .
ON Rat. Basis review we do not care, but on fundamental strict Scrut testing we
care a whole lot, especially if it is over inclusiveness.
*If you find yourself in the middle of fundamental case the facts will put you in
the middle, so you are going to have to go through the entire analysis. DO the
entire thing.

NOW EQUAL PROTECTION DOCTRINE *******

Equal protection law against the states and against the federal gov. Federal gov:
RB review, States: SS
Flow Chart for Equal Protection PG. 3
Does the law classify people? (either expressly (face of statute) or impliedly
(implicit within statute)) YES ---> Go right to EP model not DP model NO---> DP
Model THose who are similarly situated should be treated equally under the law.
THe gov is allowed to classify us for purposes of creating laws. and in most
instances, most instances, those classifications need only satisfy RB review. But
there are a handful of classifcations where the gov. is going to have to meet some
ellivated standard of review, how high of review depends on how high of
classification.
If you conclude as this law classifies people, then you are looking at a potential EP
questions. Do two things.
 You must ask is this classification motivated by a discriminatory purpose or
intent?
 Discriminatory impact?
If any one of the prima facie elements is missing then you have not EP issue,
period.
Look to DP model and see if there is a DP issue.
Word to the wise< if EP issue, do not blow off the prima facie elements!!
IF the challenger makes out this Prima facie burden, then burden shifts to the gov
to rebutt that showing by establishing some leg. non discrim prupose for the
classification. If the gov. succeeds, then we are back over at DP, but if cannot
rebut that PF showing then there is sort of a burden shift back to the challenger.
Then challenger has to show what kind of classification are we talking about here?
What kind of classification are we speaking of? IS it a classifcation based on Race,
National origin, alienage (state law). --->Yes --> SS
Gov must show a compelling interest in support of the classification.
And gov. show least restrictive means classification based on gender or illegitimacy
--> Yes --> Intermediate Scrutiny (IS)
Other ---> DP model, essentially the same as DP model, but change the wording
because classification is involved.
See new model below:
FR? ---> NO R/B
V Yes
does the classification substantially impair? ---> NO R/B
V Yes
Can the gov. . . . with a compelling interest? --> NO EP Vio
V Yes
Gov show LRM? --> EP vio
V Yes
No EP vio
Railway Express Agency v. New York, 336 U.S. 106 (1949)
Law that said that you could not advertise on public buses, but you could advertise
your own co on that bus. The SC did not buy this argument.
Under inclusiveness is not a problem under RB review.
New Orleans v. Dukes
The basic . . . for RB review . . . presume the constitutionality of the statutes
challenged. Unless we are talking about a suspect class or a quasi class or some
other that is a DP vio then it is constitutional and there is no EP issue.
NYC v. Beazer over inclusiveness if you are a former drug user who is on
methodone trying to kick your habit, you may not be employed by the transit.
formly substantive rule: easy to administer easy to understand
Only excludes from employement a group of people who we feel cannot do the job.
But it may include others who are not safe to do the job. But this is RB review, so
we do not care.
For fun letʼs run this through out EP model.
US RR Retirement Bd. v. Fritz page 1187
Presumption of constitutionality of congress passed legislation, ct played the what
if game, makes no difference on RB review.
Moreno page 1191
This was held not to be a legitimate gov interest becuase here it was discrim for
the sake of discrim. Banned hippie communes from participating in the food stamp
program. if non related persons living together.
Dred Scott v. Sandford page 1194
slaves are not supposed to be considered in the decision
Plessy v. Fergusen, 163 U.S. 537 (1896)
Citizenship defined in three distinct categories:
This model was a popularized model
political rights: law can allow us to vote in political elections and civil rights: law can
grant the right to won property, right to engage in employment.
social rights: the law cannot make the different races co-mingle with races we do
notwant to, and it cannot make us social equals.
Korematsu v. United States
Loving v. Virginia, 388 U.S. 1 (1967)
concludes this is discrim for the sake of discrim.
Washington v. Davis, 426 U.S. 229 (1976)
whether a civil service exam violates EP clause. This is thought to be a vio because
a significantly higher number of blacks fail this test as compares to whites. This
test has a discriminatory impact. there is no evidence that the purpose behind this
test was to discriminate.
Discrim purpose is a necessary element of a prima facie claim. that purpose to
discriminate does not have to be a facial appearance to discriminate. We might
have a facially nuetral law that is nonetheless motivated by a discrim purpose. How
can we tell if facially nuetral law is discrim purpose?
we look at the impact of the law. Impact is a factor that can be considered in
deciding if there is a discrim purpose.
Yick Wo v. Hopkins (1886)

Week 5
 Look for discriminatory impact is a good starting point to find discriminatory intent
or intent ( a starting point for evidence)

c) How can it be proven that a facially neutral law is motivated by a

discriminatory purpose? (Feeney & Arlington Heights)
i. The Intent Standard- Feeney veterans hiring preference scheme, I)
did the state intent? H) crt. this preference negatively impact both men &
woman. Rationale) crt. Wasn’t discriminating against woman, rather against
non-veterans. It just happened that many women are not veterans.
( consequential argument form, if we agree with what you are suggesting bad
things will happen)
 ''Discriminatory purpose' . . . implies more than intent as volition or intent as
awareness of consequences. . . . It implies that the decision maker . . . selected or
reaffirmed a particular course of action at least in part 'because of,' not merely
'in spite of,' its adverse effects upon an identifiable group.
 Not enough to show that the state knew that the scheme will
produce more benefits to men than women/// the state must
discriminate bcz. of not inspite off
ii. Arlington Heights : it is not necessary be the sole motivating factor so long
that it is “a” motivation factor
iii. Need to reference both Casese for the exam: it is not
necessary be the sole motivating factor so long that it is
“a” motivation factor///however mere knowledge will not
suffice, state (feeney) it has to be bcz. of not inspite of

VOTING RIGHTS EQUAL PROTECTION CASES

5-CATEGORIES
 Right to vote is fundamental (because it is protective of all of
our other rights) , but not a textual const. right ( see slides)
 Doesn’t mean that we are left to due process only to protect/ it
is an equal protection issue bcz. our concern that one or more
groups will be excluded from the political process one way or
another.
 GR: Any classification that selectively distributes or impair
the right to vote will be strictly scrutinized. ( all GR has
exceptions).
 5 Groups:
 Selective Denial of voting rights

 Kramer v. Union School District, (1969) a childless

bachelor living with his parents in the Union School
District challenged Section 2012 of the New York
Education Law which stated that voters for school
district elections must own or lease taxable realty
property in the district or be parents or custodians
of one or more children enrolled in a public school
local to the district. New York's argument was to
limit the franchise to those primarily affected by
education. H) Realty property and parent or custodian
of a child in a school in the district to be an
unreasonable restriction on the right to vote.

 Under-inclusive & Over-inclusive.

o Individual Vote Dilution ( one person one vote/ all votes
must ROUGHLY carry the same weight)
County A; 1 rep. County B Rep : County C: 1 rep.
Represent 10,000 20, 0000 pple. repreent 30, 000
pple pple

To correct: See Reynolds v. When it comes to

either 1 for Sims. Congressional
every 20, 0000 District Has to be
pple OR Crt is Ok with 100% the same.
1 Rep 10,000 10% difference in In a case the crt.
2 Rep. for the STATE electoral held 0.7% varial
20, 000 districts  unconstitutional
3 for the 30,
000
o Institutional that is Inherently Voted Diluted: U.S
Senate, every state gets 2, CA has 45 million pple &
Wyoming has 2 million gets 2 senate…
o Bicameral legislature each state gets two except for
Nebraska
o Permissable & Factors: (karcher v. Dagget &
Reynolds see slide)
o
o Group Vote Dilution or Gerrymandering
 Racial gerrymandering is the process of carving up voting
districts into weird shapes for the sole purpose of giving
specific racial and ethnic groups undue voting
 representation./// disadvantaging the racial minority by
making them a voting minority as well
 Political gerrymandering not struck out yet.; to make an EP
Political gerrymandering claim must show that the Political
process doesn’t work for you as to your opponent & a Nexus o
//not effective way for you to politically participate but the
crt. is exceptionally reluctant to interfere a. anything
political including this
 The same is not true for Racial Gerrymandering, crt uses
Strict Scrutiny test if Race is the base for
gerrymandering.
o Majority-Minority Districts
 we are using Race to assist that minority voters can
control some electoral district ( opposite Racial
Gerrymandering/ GM disadvantage minority, this one the
opposite)
 Strict scrutiny is still the rule
 If Race is the predominant ( not just motivating) factor in a
Majority-Minority District scheme then there is an EP
violation
o Vote Counting (Bush v. Gore)
 Selected Bush& they are all sitting on the Supreme
crt. with a lifetime Tenure
 VOTING IS NOT ON THE BAR EXAM ( CHANCES
ARE SLIM TO NONE)

 4 allowable Voting Discrimination:

 U.S citizens, Bonafide residents of the electoral

district & 18 yrs of age are O.K, State may limit
their right to vote ( only rational basis review)

o 4th Const. permissible ground to limiting the

vote persons who have been convicted with
a felony to be banned from right to ( state
doesn’t have to but can) :

 1. Age

 2. Residency

 Citizenship &

 Felons
School segregation case:
2 Categories ( see slide)
Brown I & Brown II
Brown I—Overruled Plesey, separate but equal not the rule of
the land— School that are segregated had to desegregate…
that’s it didn’t say how what etc…
Brown II-
1. ??D. Crts can order many things…most importantly
Bussing whites to Blacks & blacks to whites…led to
white flight bcz. Richard Nixon scared the hell out
of white pple abt. integration.
2. School should be desegregated/ integrated w. all
deliberate speed ( didn’t say what the speed is)
3. Note that school segregation cases are dealing w.,
schools not colleges
4. What is the scope of desegregation obligation?
a. Green v. School Board: whatever affirmative
needed to achieved Unitary status ( one
unified school system)
b. Before a D.C can issue an order same EP
prima facia case:
i. Classification ( express or implied)
ii. Segregate intent &
iii. Segregate effect
c. Keyes v. School Dist—The Key’s Presumption
—
i. If seg. Purpose & effect in a portion of a
district will be imputed to the whole
district thus D.C can order de-segregation
measures to the whole district.

5. No Inter-district Keys Presumption –Milliken v.

Bradley, 418 U.S. 717 (1974), was an important
United States Supreme Court case dealing with
the planned desegregation busing of public school
students across district lines among 53 school
districts in metropolitan Detroit. It concerned the
plans to integrate public schools in the United
 States in the aftermath of the Brown v. Board of
Education, 347 U.S. 483 (1954) decision.

It placed an important limitation on the first major

Supreme Court case concerning school busing, Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S. 1
(1971), by holding that such remedies could extend
across district lines only where there was actual evidence
that multiple districts had deliberately engaged in a
policy of segregation.

Went face down in his Cheerios one morning—Bamm ( LMAO died)

2 more cases –see slides— dekhet

Dejure violation: segregation that is required by state law…

Supreme crt. wants out of the school desegregation cases ( see
Freeman)

These are EP cases—1st prove three elements—crt order a

plan –until desegregation is achieved—after that the
desegregation plan has is gone--- then ????

WEEK 7( But Week 6 Materials)

AFFIRMATIVE ACTION: laws, rules or regulations designed to
aide certain classes, test is always strict scrutiny:
2 Groups;
1) Education ( admissions programs mostly to colleges &
Universities & post grad programs but pn of the cases was k-
12 Schools
2) Everything Else:
a. E.g: Gov. contracts
i. Rules for these groups more restrictive than
education
Education Groups:
1) Race could be one of the factors considered in choosing a diverse
student body in university admissions decision—But Cannot be the only
factor to pass Strict scrutiny test--Regents of University of CA v.
Bakke man kept on getting rejected at UCDavis medical school although less
qualified students were admitted; out of 100 available seats,16 seats where
set aside for minorities ( Race alone)—
a. Is it a compelling gov. interest to have a Race Based Quota? NO
b. Is Ita compelling gov. interest Countering the effects of societal
Historical pervasive discrimination ( consequential argument)?NO too
Overbroad bcz. Standing by itself is not enough to allow nay gov.
entity to discriminate on that base.
c. Is it a compelling gov. interest to increase the number of minority
medical students to serve underserved communities? NO, how do we
know this is what they are planning to do in their future.
d. Is it a compelling gov, interest Obtaining the benefits that flow
from Diverse student body? YES diversity argument works so long
it pass the MEANS testing—bcz. Race was the sole factor—
DIVERSITY means more than skin color, race can be a factor but
not the only factor ( Diversity arg, used in the Grutter)
e. REMEDIAL MEASURES: the standard is intermediate scrutiny
f. The standard now is strict scrutiny, but there was a time when
the crt. Allowed intermediate scrutiny.
g. The law is colorblind (Plessy v. Haralson) & repeated here; it doesn’t
allow to discriminate AGAINST disadvantaged minorities// same
rights regardless of the color of our skin is what Plessy meant, but
this case used opposite mean; Cant use Race to FAVOR a minority
group Docrinal shift 100 yrs ago we where concerned with laws
that Facially disadvantaged minority rather the opposite—the phrase
can fit under both context.
h. BAKKE LAYS THE FOUNDATION ( MAIN POINT OF THIS CASE)

2) Constitution "does not prohibit the law school's narrowly tailored use of
race in admissions decisions to further a compelling interest in obtaining
the educational benefits that flow from a diverse student body." The
Court held that the law school's interest in obtaining a "critical mass" of
minority students was indeed a "tailored use". Grutter v. Bollinger 2003
(page 1266)
 a. Didn’t make the same mistake that Davis made, Race wasn’t the sole
criteria; it was one of many factor that the school look for like any
other extraordinary difficulties or hardship that the student had to
overcome.
b. What is a critical Mass? No significant number of a minority group
feel isolated. ( what was weird that they where admitting way more
blacks than any other minorities although Race is supposed to be only
one element)
c. Means where not tested in this case—Unlike Bakki
d. In this case it was “fair Criticism” massacred as strict scrutiny.

3) University's system which automatically awarded points to underrepresented

ethnic groups, was too mechanistic in its use of race ( not narrowly tailored)
as a factor in admissions, and was therefore unconstitutional- Gratz v.
Bollinger (2003) Page 1266
a. Rinquits wrote ( all we need to know bcz. he hates affirmative action)
he said the point system is similar to qouta +it doesn’t consider each
person as individual & schues the diversity equation to race—Failed
on Means Testing.
4) Where Are we today?
a. Diverse student body is a compelling interest
i. Critical mass that consider race as many factors
will suffice
ii. Point System will not cut it if emphasized too much
on Race
1. Gruter each ind, was considered for the kinds
of the diversity he brings to the diverse
student body the Gratz wasn’t the same

5) Parents involved in School admission Cases: desegregation efforts taken by

schools voluntary under equal protection interets
a. Bcz. it was a k-12 school we treat them as a desegregation case
lathought there was no desegregation plans.
b. in both of these school districts there was subs. Racial diversity
therefore these plans are likely to be negligible so they fail on means
testing—Cant divers school bodies bcz. they are lready diverse.
c. Compelling onterste but failed on the means
 d. School admission cases: these are EP decision, need to stisfy all
three elements, once you pass—If the gov. in undertaking AA
plan as a remedial measures that is O.K, but when it comes to
admissions it not gonna pass Diversity is a free standing ..??
1) Wygant
2) Strict scrutiny standard to state and local programs. Richmond v. J.A
Croson Co. (1989) page1286-Giving preference to minority in the awarding of
municipal contracts was unconstitutional under the EP. The city must
identify both the need for remedial action and that other non-discriminatory
remedies would be insufficient
a. 14th A. section 5 allows the Congress minority set aside programs but
the city Or State don’t have a textual authorization to do that
b. Not a compelling interest to remedy past/ historical programs
c. If a city have prove that here is a CURENT discrimination it can take
measures to remedy BUT PAST discrimination a CITY cannot do that

d. City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) was a case in which the
United States Supreme Court held that the city of Richmond's minority set-aside
program, which gave preference to minority business enterprises (MBE) in the
awarding of municipal contracts, was unconstitutional under the Equal Protection
Clause. The Court found that the city failed to identify both the need for remedial
action and that other non-discriminatory remedies would be insufficient.

e. Croson involved a minority set-aside program in the awarding of municipal contracts.

Richmond, Virginia, with a black population of just over 50 percent had set a 30
percent goal in the awarding of city construction contracts, based on its findings
that local, state, and national patterns of discrimination had resulted in all but
complete lack of access for minority-owned businesses. The Supreme Court stated:

f. "We, therefore, hold that the city has failed to demonstrate a compelling interest
in apportioning public contracting opportunities on the basis of race. To accept
Richmond's claim that past societal discrimination alone can serve as the basis for
rigid racial preferences would be to open the door to competing claims for "remedial
relief" for every disadvantaged group. The dream of a Nation of equal citizens in a
society where race is irrelevant to personal opportunity and achievement would be
lost in a mosaic of shifting preferences based on inherently unmeasurable claims of
past wrongs. [Citing Regents of the University of California v. Bakke]. Courts would
be asked to evaluate the extent of the prejudice and consequent harm suffered by
various minority groups. Those whose societal injury is thought to exceed some
arbitrary level of tolerability then would be entitled to preferential classification.
We think such a result would be contrary to both the letter and the spirit of a
constitutional provision whose central command is equality."
 GENDER BASED CLASSIFICATIONS;
Gender based gets Intermediate scrutiny—
Where are we Today? Craig v. Boren—

1) Medium scrutiny test is to sex-based classification: “must serve

important governmental objectives and must be substantially related
to those objectives (substantially furthers the gov. goal) that test is
Gender Neutral.(applies to laws discriminating against men & women)
Craig v. Boren (1976)

Facts: An Oklahoma law prohibited the sale of "non-intoxicating" 3.2

percent beer to males under the age of 21 and to females under the
age of 18. Curtis Craig, a male then between the ages of 18 and 21, and
a licensed vendor challenged the law as discriminatory.
Question: Did an Oklahoma statute violate the Fourteenth Amendment's
Equal Protection Clause by establishing different drinking ages for
men and women?
Conclusion: the Court held that the statute made unconstitutional gender
classifications. The Court held that the statistics relied on by the
state of Oklahoma were insufficient to show a substantial relationship
between the law and the maintenance of traffic safety. Generalities
about the drinking habits of aggregate groups did not suffice. The
Court also found that the Twenty-first Amendment did not alter the
application of the Equal Protection Clause in the case.

2) The state has the burden of proof to show that it had an

EXCEEDINGLY PERSUASIVE justification in order to
defend a gender-based government action. (important interest +
Substantially related means) MUST USE THIS PHRASE ON EXAM “ United States
v. Virginia—court struck down the Virginia Military Institute's long-
standing male-only admission policy in a 7-1 decision. (Justice Clarence
Thomas recused himself from the case, presumably because his son was
enrolled at VMI at the time.)

Writing for the majority, Justice Ruth Bader Ginsburg stated that because VMI
failed to show "exceedingly persuasive justification" for its sex-biased admissions
policy, it violated the Fourteenth Amendment's equal protection clause. In an
attempt to satisfy equal protection requirements, the state of Virginia had
proposed a parallel program for women, called the Virginia Women's Institute for
Leadership (VWIL), located at Mary Baldwin College, a private liberal arts women's
college.

3) Mississippi Univ. for Women v. Hogan--female only state nursing

school state says justification is remedying historical discrimination but
woman has not been discriminated against in the nursing field. CLASS
YOU NEED TO PROTECT MUST BE A CLASS THAT HAS BEEN
DISCRIMINATED TO.
1) PAGE 1313 Godelding— Upheld a statute that excluded pregnant women from
disability insurance
i. In Response to similar cases Congress enacted the Pregnancy
discrimination act which defined sex discrimination to include
pregnancy.
e. If a set of facts subdivides a class then it’s a claiification based on sub-
classifcation ( pregnancy, cervical cancer, breast cancer etc. ). Not the same
4) Gender Classification Benefiting women as a remedy for past discrimination
California v. Webster (1977) page 1324. Upheld a special formula to calculate
women’s social security benefits because woman are paid less throughout their
working years due to male-dominant job market leading to them earning less even
if they work as much.
a. Laws that tend to advantage woman are permitted if they have
a remedial purpose/ only 2 suuffice:
i. Past Economic disperaties: e.g; Disperaties in
earning/public insurance/
ii. Remedying the effects of past employment markedt
discr.
1. In either Remedial Purpose + Gov. must prove
FACTUALLY w/in particular jurisdiction the
discrimination.
2. If it doesn’t fit these tw: economic of
employemnet disparities then law is Un_Q

ILLEGITIMACY:
--Can’t tell someone is illegitimate only by looking at a personal
-- will never change
 --things these people that you have no control of.
If you are faced with set of fact that looks to discriminate against illegitimate
child & make sure you know who is being discriminate against:
a. Child intermediate
scrutiny
b. Parents of the child
Rational Basis review.
Where it gets tricky is where it involves the benefits the parent gets is based
on illegitimacy against parent or the child? Factual determination based
upon facts & circumstances.

SEXUAL ORIENTATION--
Test is closest to Rational basis review; they are not suspect or quasi suspect
class
No Fundemental Right to be Homosexual
Romer v. Evans F) City passes an ordinance that a landlord os required to sell or
rent to a homosexual, meaning they cannot sue based on discrimination
a. significant because this is the first time the S.C. invalidated
discrimination based on sexual orientation. “animus against gays &
lesbians, even when presented as a purported “moral” basis for the
law, is not sufficient to meet the lowest standard of review, Rational
basis test. “

 Kenedy who wrote the opinion for this case- he was thermo nuclear pissed.
  Not w/in our const. tradition to enact laws of this sort-creating a class of
person’s discriminating against them
 However they didn’t create a suspect or Quasi- suspect class—
 Equal argument: we are treating g& L equal to argument NO, why? You
are taking a right from them that everyone else has.
 Consequential argument form: the consequences for this kind of people is
huge—RESPOND: are those consequences UNIQUE to g& L lots of other
people are treated just the same way you are…(Equal argument form)
 Individual rights argument: spot when crt. Singles out a group..Response
—the countervailing Indivudua right “ g& L have a right not to be
treated different” Response” society right”
 RESPONSIBILITY BASED ARGUMET--When the law classifies,
penalizes, punishes on status on the Liability base argument- no Liab.
w/o intent, fault, harm

ALIENAGE- GENERAL RULE IS STRICT SCRUTINY

EXCEPTION: POLITICAL FUNCTION:
1) ELECTED POSITIONS:
1. Elected offices &
2. Important non-elected Positions
a. Formulation, execution, review of public policy
b. Public interaction
c. Discretion ( like police officers)
i. States cannot ban Aliens from the practice
of the law Not Formulation, however if
working on…committee then the Alien will be
banned.
ii. Look at the cases to see what these are—cz.
This is a fact & circumstances base test.
iii. Rational—States decides who is inside on
their political community.
4) Alienage Classifications
(a) Federal alienage classifications get rational basis. Valid if not arbitrary/
unreasonable. Congress plenary power
(b) State & Local classifications get SS. US Citizenship can’t be required to
get welfare, be lawyer, or civil service jobs. EXCEPTIONS (Tip: heavily
tested)
 (i) If a law discriminates against alien participation in state govt or non-
elective offices involving important public policy, rational basis stnd
applied. E.g., voting, jury service, elective office, job as a teacher,
police officer or probation officer.
(c) Undocumented:
(i) Undocumented alien children: standard like intermediate scrutiny.
Entitled to free public education.
(ii) Undocumented: rational basis

WEEK 10
add last weeks notes—probably Farah’s piece of shit
1) Traditional Forum: streets, sidewalks, public parks
a. The Rules: Content base- Regulations S.S
i. But gov. can: 1) Time/place/ manner regulations & 2) O’brien
Type regulation.
2) Designated forum: e.g: the gov. designated the gym between the hours
between 3-5 for Speech—Designation has to be Voulnatary and
Affirmatively. Can be two kinds:
a. Unlimited: gov. thrown the doors open by anyone nad on any subject
b. Limited: e.g: open to students & teachers. Limited the forum to
specific groups.
i. Note that not all courts apply this distinction.
c. Rules: GR: need to be reasonable & content neutral/ unless if
the courts distinguish Limited & unlimited
i. Limited: Reasonable & view point neutral
ii. Unlimited: then the rules are the same as tradition public
Forum
3) Non-Public: Jails/Priosns, military basis/ Public schools.
a. RULES: Need only 2 things:
i. Reasonable reg: are reglulations consitant w. the use for
which this property has been designated.
ii. View Point neutral.
i. CONTENT CONSIST OF VIEW POINT
& SUBJECT
ii. IN NON-PUBLIC FORUM—GOV. HAS
TO BE CONTENT NEUTRAL
 1. GOV. CAN SAY WAR IS NOT A
VIEW POINT IT’S A SUBJECT
THAT WE CAN EXCLUDE.
iii.
1. E.g: Conflict resolution:
a. View point 1: resolve conflict by negotiation
i. Subject: negotiation (subjects can be
view points & view points can become
subject)
1. Voluntary negotiation
2. Compelled negotiation:
a. CN:
i. VP1: effective
ii. VP2: ineffective.
b. View point 2: resolve conflict by war:
i. Subject: war
ii. VP1: war good
1. Stimulates economy
2. Political dominance.
iii. VP2: war is bad

iv. IT’S A GAME, YOU SAY VIEW POINT

THE GOV SAY VIEW POINT

Narrowly Tailored here are the same as narrowly tailored in

Proceduraly Due process:
1) doesn’t need to be the least restrictive means.
a. T/P/M so ling gov. interest better w. reg. than w/o regulation
i. TEST:
ii. Heffron v. Int’l. Soc. for Krishna Consciousness (1981)
upheld rule barring distribution of printed materials and
solicitation of funds at county fair as reasonable time, place,
or manner restriction—
iii. is the airport a public forum? NO,
b. FORUM CAN BE ANY VENUE THAT IDEAS CAN BE
EXCHANGED, SPREAD OUT
PEA v. PLEA
Facts of the Case: 
The Perry Education Association (PEA) won an election against the Perry Local Educators' Association (PLEA) to
serve as the sole union representing teachers in Perry Township, Indiana. As part of the collective-bargaining
agreement reached between PEA and the Board of Education of Perry Township, PEA obtained exclusive rights to
use the internal school mail system and PLEA was denied access. PLEA contended that denying their members use
of the mail system violated the First Amendment and the Equal Protection Clauses of the Fourteenth Amendment. A
Federal District Court ruled against PLEA but the United States Court of Appeals for the Seventh Circuit reversed.
Question: 
Does a local school board violate the First Amendment by disallowing a nonofficial teachers union from using its
internal school mail system?
Conclusion: 
No. Justice Byron White delivered the opinion of a 5-4 court. The school board chose to grant exclusive access to
the official teachers union in order to facilitate a collective-bargaining agreement. It did not act to suppress the
speech of rival teachers unions. The school board entrusted PEA with obligations as the sole representative of
teachers that would require the use of the mail system. PLEA did not have these obligations and could
communicate effectively though many other channels. Since the mail system was not a "public forum," PLEA
had no unassailable right to access it. In his dissent, Justice William J. Brennan Jr. contended that the mail
system constituted government property and PLEA lost access privileges because its viewpoints differed from
those of the official union.

This is significant vcz. This is not a street or sidewalk,,,,this ia a mailbox

system, however it’s a venue…forum does not have to be a street, it can be
any venue to layout ideas.

 the government is allowed to have its own message on any subject it

wants except for the subject of religion & it can express this message
through its employees, officers and agents.
 If you work for the gov; you have to be preared to
convey its message during the course and scope of
your duty.
 Your only remedy if you don’t like is to quit.
 The fact that the gov. has a message and that
message have a view point that does not mean that
it is obligated to express opposing view points.
i. SUBSIDIES; the gov. can subsidise its own
message.
ii. ART:
iii. Tinker, bethel and Haselwood if school
problem…if it survives these, it survives
 f. He talked about the porn channels
g. Porn for children?? hell no

Freedom of speech is the freedom to speak freely without censorship or

limitation, or both. The synonymous term freedom of expression is
sometimes used to indicate not only freedom of verbal speech but any act of
seeking, receiving and imparting information or ideas, regardless of the
medium used. In practice, the right to freedom of speech is not absolute in
any country and the right is commonly subject to limitations, such as on "hate
speech".

Freedom of Association Week 11

Freedom of association is the individual right to come together with other

individuals and collectively express, promote, pursue and defend common interests.
The right to freedom of association is sometimes used interchangeably with the
freedom of assembly. More specifically the freedom of assembly is understood in a
political context, although depending on the source (constitution, human rights
instrument etc) the right to freedom of association may be understood to include
the right to freedom of assembly.

While the United States Constitution's First Amendment identifies the rights to
assemble and to petition the government, the text of the First Amendment does
not make specific mention of a right to association. Nevertheless, the United
States Supreme Court held in NAACP v. Alabama that the freedom of association
is an essential part of the Freedom of Speech because, in many cases, people can
engage in effective speech only when they join with others.

Intimate Association
A fundamental element of personal liberty is the right to choose to enter into and
maintain certain intimate human relationships. These intimate human relationships
are considered forms of "intimate association." The paradigmatic example of
"intimate association" is the family.

Expressive Association
Expressive associations are groups that engage in activities protected by the First
Amendment—speech, assembly, press, petitioning government for a redress of
grievances, and the free exercise of religion. In Roberts v. United States Jaycees,
the Supreme Court held that associations may not exclude people for reasons
unrelated to the group's expression. However, in the subsequent decisions of
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston and Boy
Scouts of America v. Dale, the Court ruled that a group may exclude people from
membership if their presence would affect the group's ability to advocate a
particular point of view. The government cannot, through the use of anti-
discrimination laws, force groups to include a message that they do not wish to
convey.

Limitation
However, the implicit First Amendment right of association in the U.S. Constitution
has been limited by court rulings. For example, it is illegal in the United States to
consider race in the making and enforcement of private contracts other than
marriage or taking affirmative action. This limit on freedom of association results
from Section 1981 of Title 42 of the United States Code, as balanced against the
First Amendment in the 1976 decision of Runyon v. McCrary

The holding of Runyon is that the defendant private schools were free to express
and teach their views, such as white separatism, but could not discriminate on the
basis of race in the provision of services to the general public. So, if the plaintiff
African-American children wished to attend such private schools, and were clearly
qualified in all respects (but race) and were able to pay the fees, and were willing
to attend despite the fact that the school's professed principles were inconsistent
with admitting them, then the schools were required by Section 1981 to admit
them. This doctrine rests on the interpretation of a private contract as a "badge"
of slavery when either party considers race in choosing the other.

Governments often require contracts of adhesion with private entities for licensing
purposes, such as with Financial Industry Regulatory Authority for stock market
trading in the 1938 Maloney Act amendments to the Securities Exchange Act of
1934. These contracts often bar association with banned members, as can be seen
in United States v. Merriam, 108 F.3d 1162.

Workers' Freedom of Association

The organization of labor was commonly resisted during the 19th century, with
even relatively liberal countries such as the United Kingdom banning it for various
periods (in the UK's case, between 1820 and 1824).
In the international labour movement, the freedom of association is a right
identified under international labour standards as the right of workers to
organize and collectively bargain. Freedom of association, in this sense, is
recognized as a fundamental human right by a number of documents including
the Universal Declaration of Human Rights and International Labor
Organization Convention C87 and Convention C98 -- two of the eight
fundamental, core international labour standards. 'Freedom of association'
can also refer to legal bans on private contracts negotiated between a
private employer and their employees requiring workers at a particular
workplace to join a union as a term and condition of employment. Supporters
of this sort of private freedom of association claim that the right to join a
union incorporates a right not to join a union. In the United States, the term
'right to work' is more common for this type of law.
Emplyment & Commercial Interest ( Insert Slide)
- Patronage Dismisel for law level ministerial employees is prohibited
The Public concern Doctrine- gov. cann fire an emoloyee for a speeh that does not
relate to a matter of a public concern to the commuity at large ( look at
content, form ( oral written, letter to th editor ) Context ( surrounding facts &
cisrcumstanes)  question of law for the court to determine
If it realtes to pubic concern higher protection balancing test emplyer v.
Emplyees
Private interst can be fired
MODEL: you begin with
1) The employee bears the burden pf showing that his activity is the reason for
the action (transfer, demotion, etc. )
a. if the EE is able as an initial matter to carry this burden, the
Employer can rebut with proof that he would have taken the same
action regardless of EE. Speech.
b. If EO can show that , the case ends there
c. If EO cannot rebut Q # 2
2) Is this a matter of public concern based on Content, form & Context (form
( oral written, letter to th editor ) Context surrounding facts
circumstances)
a. P.C Pickering balance, EE right v. EO right
b. No P.C No protection.
 3) Model altered by Garcetti v. Ceballos: if a gov. / public employees speak on
a matter that is w/in ee duties is not speech by a private citizen on a matter
of public concern NO first A protection.

The public concern Doctrine; Connick v. Myers crt. Said related to subject of
private interst , therefore you don’t get protection.
Brief Fact Summary. A District Attorney’s dismissal for circulating a
questionnaire in protest of her proposed transfer was upheld by the United States
Supreme Court (Supreme Court) even though one question in her survey touched
upon “public concern.” Since there was such a limited “public concern” element
here, the Supreme Court found that her boss’ decision to terminate her was
permissible under the First Amendment of the United States Constitution
(Constitution).
Synopsis of Rule of Law. When employee expression cannot be fairly considered
as relating to any matter of political, social, or other concern to the community,
government officials should enjoy wide latitude in managing their offices, without
intrusive oversight by the judiciary in the name of the First Amendment of the
Constitution. When a public employee speaks not as a citizen upon matters of
public concern, but instead as an employee upon matters only of personal
interest, absent the most unusual circumstances, a federal court is not the
appropriate forum to review the personnel decision taken by a public agency
allegedly in reaction to that employee’s behavior.

Facts. The Respondent, Sheila Myers (Respondent), an Assistant District Attorney

in New Orleans was informed by her boss the Petitioner, Harry Connick, Sr.
(Petitioner), a New Orleans District Attorney, that she would be transferred.
She communicated to him and to many fellow staff members that she opposed
the transfer. She created an internal office questionnaire that among other
things, requested opinions about the office transfer policy. She also included a
question that asked staff members if they felt “pressured” to work on political
campaigns. In response to this survey, the Petitioner terminated her
employment.
Issue. Whether Respondent’s termination was a violation of the First Amendment
of the Constitution? Whether the questionnaire constituted a matter of public
concern?
Held. No. Judgment of the lower court reversed. Respondent’s questionnaire
touched upon matters of public concern only in a limited sense. The limited First
Amendment interested involved here does not require Petitioner to tolerate action
which he believes would disrupt the office, undermine his authority and destroy
close working relationship. Therefore, Respondent’s termination was not a violation
of the First Amendment of the Constitution.Yes, but to a limited extent. Whether
an employee’s speech constitutes a matter of public concern must be determined
by the content, form and context of a given statement, as revealed by the whole
record. In this case, with but one exception, the Respondent’s questions do not fall
under the “public concern” rubric. The questionnaire, if released to the public
would impart no information at all other than that one employee is dissatisfied with
the status quo. However, the questionnaire does touch on one matter of public
concern in question 11 where Respondent asks whether the public employees ever
feel “pressured” to work on political campaigns. Because one of the questions
touches on a matter of public concern, the Supreme Court of the United States
must determine whether Petitioner was justified in terminating her employment.
The state’s burden in justifying a particular discharge varies depending on the
nature of the employee’s expression. There must be a full consideration of the
government’s interest in the effective and efficient fulfillment of its
responsibilities to the public. Petitioner’s judgment was that Respondent’s
questionnaire was an act of insubordination, which interfered with working
relationships. When employee speech concerning office policy arises from an
employment dispute concerning the very application of that policy to the speaker,
additional weight must be given to the supervisor’s view that the employee has
threatened the authority of the employer to run the office. Therefore, he was
justified in his dismissal of the Respondent.Dissent. The questions in the
questionnaire are of public import in evaluating the performance of the District
Attorney as an elected official. The majority’s decision will deter public employees
from making critical statements about the manner in which government agencies
are operated for fear that doing so will provoke their dismissal. Such information
is protected by the First Amendment of the Constitution.

Discussion. This case illustrates that even though speech may be of public
concern, it may still not be fully protected under the First Amendment of
the Constitution.

Garcetti v Ceballos- clear Unmitigated Retaliation case

Facts of the Case: 
Richard Ceballos, an employee of the Los Angeles District Attorney's office, found
that a sheriff misrepresented facts in a search warrant affidavit. Ceballos
notified the attorneys prosecuting the case stemming from that arrest and all
agreed that the affidavit was questionable, but the D.A.'s office refused to
dismiss the case. Ceballos then told the defense he believed the affidavit
contained false statements, and defense counsel subpoenaed him to testify.
Seeking damages in federal district court, Ceballos alleged that D.A.s in the office
retaliated against him for his cooperation with the defense, which he argued was
protected by the First Amendment. The district court ruled that the district
attorneys were protected by qualified immunity, but the Ninth Circuit reversed
and ruled for Ceballos, holding that qualified immunity was not available to the
defendants because Ceballos had been engaged in speech that addressed matters
of public concern and was thus protected by the First Amendment.
Question: 
Should a public employee's purely job-related speech, expressed strictly pursuant
to the duties of employment, be protected by the First Amendment simply because
it touched on a matter of public concern, or must the speech also be engaged in "as
a citizen?"
Conclusion: 
In a 5-to-4 decision authored by Justice Anthony Kennedy, the Supreme Court
held that speech by a public official is only protected if it is engaged in as a
private citizen, not if it is expressed as part of the official's public duties.
Ceballos's employers were justified in taking action against him based on his
testimony and cooperation with the defense, therefore, because it happened as
 part of his official duties. "The fact that his duties sometimes required him to
speak or write," Justice Kennedy wrote, "does not mean his supervisors were
prohibited from evaluating his performance." Justices Stevens, Souter,
Ginsburg and Breyer dissented.

Roberts v. United states

Court Distinguishes intimate association:
- Group is relatively small
- High degree of selectivity in who gets included
- Seclusion from Others
Tests for Burdens on Expressive association
-state must articulate a compelling interest
- interest must be unrelated to suppression of ideas
- No significantly less restrictive means to achieving state interest.

Facts of the Case: 

According to its bylaws, membership in the United States Jaycees was limited to
males between the ages of eighteen and thirty-five. Females and older males were
limited to associate membership in which they were prevented from voting or
holding local or national office. Two chapters of the Jaycees in Minnesota,
contrary to the bylaws, admitted women as full members. When the national
organization revoked the chapters' licenses, they filed a discrimination claim under
a Minnesota anti-discrimination law. The national organization brought a lawsuit
against Kathryn Roberts of the Minnesota Department of Human Rights, who was
responsible for the enforcement of the anti-discrimination law.
Question: 
Did Minnesota's attempts to enforce the anti-discrimination law violate the
Jaycees' right to free association under the First Amendment?
Conclusion: 
In a unanimous decision, the Court held that the Jaycees chapters lacked "the
distinctive characteristics that might afford constitutional protection to the
decision of its members to exclude women." The Court reasoned that making
women full members would not impose any serious burdens on the male
members' freedom of expressive association. The Court thus held that
Minnesota's compelling interest in eradicating discrimination against women
 justified enforcement of the state anti-discrimination law. The Court found
that the Minnesota law was not aimed at the suppression of speech and did not
discriminate on the basis of viewpoint.

Distinguish previous case from Dale v. Boy Scouts oF America- bcz. Here they
are forced to change their msg. from gay is Ikky to Gays are o.k—also courts
are highly differntial to what message they want & to what type of proof of
their msg is,
In the previous case, allowing girls in will not change the groups message.
Facts of the Case: 
The Boy Scouts of America revoked former Eagle Scout and assistant scoutmaster
James Dale's adult membership when the organization discovered that Dale was a
homosexual and a gay rights activist. In 1992, Dale filed suit against the Boy
Scouts, alleging that the Boy Scouts had violated the New Jersey statute
prohibiting discrimination on the basis of sexual orientation in places of public
accommodation. The Boy Scouts, a private, not-for-profit organization, asserted
that homosexual conduct was inconsistent with the values it was attempting to
instill in young people. The New Jersey Superior Court held that New Jersey's
public accommodations law was inapplicable because the Boy Scouts was not a place
of public accommodation. The court also concluded that the Boy Scouts' First
Amendment freedom of expressive association prevented the government from
forcing the Boy Scouts to accept Dale as an adult leader. The court's Appellate
Division held that New Jersey's public accommodations law applied to the Boy
Scouts because of its broad-based membership solicitation and its connections
with various public entities, and that the Boy Scouts violated it by revoking Dale's
membership based on his homosexuality. The court rejected the Boy Scouts'
federal constitutional claims. The New Jersey Supreme Court affirmed. The court
held that application of New Jersey's public accommodations law did not violate
the Boy Scouts' First Amendment right of expressive association because Dale's
inclusion would not significantly affect members' abilities to carry out their
purpose. Furthermore, the court concluded that reinstating Dale did not compel
the Boy Scouts to express any message.
Question: 
Does the application of New Jersey's public accommodations law violate the Boy
Scouts' First Amendment right of expressive association to bar homosexuals from
serving as troop leaders?
Conclusion: 
Yes. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court
held that "applying New Jersey's public accommodations law to require the Boy
Scouts to admit Dale violates the Boy Scouts' First Amendment right of
expressive association." In effect, the ruling gives the Boy Scouts of America a
constitutional right to bar homosexuals from serving as troop leaders. Chief
Justice Rehnquist wrote for the Court that, "[t]he Boy Scouts asserts that
homosexual conduct is inconsistent with the values it seeks to instill," and
that a gay troop leader's presence "would, at the very least, force the
organization to send a message, both to the young members and the world,
that the Boy Scouts accepts homosexual conduct as a legitimate form of
behavior."

WEEK 12- THE ESTABLISHMENT CALSUE

3 TEST- NOT ALWAYS CLEAR WHAT TEST is the court going to apply when
so always run the facts through all there tests on the EXAM

Insert slides

1- LEMON TEST AS MODIFIED;–PEE TEST ( PURPOSE/ EFFECT/

ENTANGELMENT entanglement is mxed in with the effects)
A) A secular purpose to the law?
B) Primary Effect either advances or inhibits religion? ( INSERT THE
REST)
i. Legislative purpose: look at legislatve history & the
surrounding Circumstances. Decide I f there is a non
sham purpose to the law if so Secular Purpose
Requirment is satisfied
ii. Principal or primary effect of the law can neither
advance or inhibit religion: religion can not disfavor
religion over non- religion OR cant favor one sect over
other sects.
iii. If the gov. distribute benefits w/o formal regard for
religion then the effects part is satisfied.
C) Entanglment requirment..?
a. There cannot be EXCESSIVE entanglment, 2 kinds
 i. Substantive Entanglment: Court are called upon on
matters of religious dogma
1. E.g: religious sect,2 groups get into a fight, split
the church up, they argue who gets the
possession: crts. Don’t do go theres unless it sa
pure non-religious rules, cant decide which group
is not a sham
ii. Procedural Entanglment: involving the church in the
legal process
1. E.g: church is sued, church is forced to get into
the legal process. Court will be reluctant to
interfer.
In the SCHOOL FUNDING CASES- neutrality is the Key:
A) Benefits handed out w/o regard to religion
B) No gov. endoctrination
In religious speech cases- gov remains neutral if when it open up a forum it
remains neutral to religious/ non-religious/ diff. religions. (slides)

2-Endorsment test: insiders & outsiders (insiders are a member of the faith that
eth gov. endorses & all the others feel like they are outsiders)
a) first element same as Lemon
b) Reasonable Observer standard ; Would a reasonable observer understand
that it convey a message of disapproval or endorsment of religion.
a. Endorsment looks at the gov. intent
b. Looking at it from the prospective of the gov. that crated the law &
the people& how they see the law.
c. Figure out the gov. intent like in lemon
d. CRUCIAL ISSUE IS WHETHER THIS LAW EFFECTIVELY
COMMUNICATES WHETHER INTENTIONALY OR NOT
ENDORSMENT OR DISAPROVAL OF THE LAW.
e. THE REASONABE OBSERVOR; member of the community,
understands the community practices, including public displays of
religious relics.
3-Coercion Test:
2 views of Coercion:
a) Strong view: ( Scalia/ Thomas) gov. doesn’t enforse a religious view
unless it is doing so by force of law or threat of penalty. r
 b) Week View of Coercion: (Kennedy): peer pressure, psychological
pressure sufficient to coerce
ii. Recently courts has looked at it in the schools
context/ wld. Non-practicing students feel
coerced to practice in the ceremony.
iii. Middle school/ high school- young people who
want to be a part of the in-crowd/ not
ostracized.
iv.
1-

Lemon v. kurtzman
was a case in which the Supreme Court of the United States ruled that
Pennsylvania's 1968 Nonpublic Elementary and Secondary Education Act, which
allowed the state Superintendent of Public Instruction to reimburse nonpublic
schools (most of which were Catholic) for the salaries of teachers who taught
secular material in these nonpublic schools, secular textbooks and secular
instructional materials, violated the Establishment Clause of the First
Amendment.

1. The government's action must have a secular legislative purpose;

2. The government's action must not have the primary effect of either

advancing or inhibiting religion;

3. The government's action must not result in an "excessive government
entanglement" with religion.

AID TO RELIGION CASES- use of gov. money to subsidise sectarian education

The gov. makes available for example a state tax credit-
The law sounds neutral on its face-

The Mitchel case is not a binding law cz. A plurality decision