U.S.

Civil Liberties Case Summary Portfolio

Caitlyn McBride
POLS 4505 U.S. Civil Liberties
December 7, 2015
Professor Tolley

Contents
Glossip et al. v. Gross et al . ........................................................................................................... 1
Alabama Legislative Black Caucus et al. v. Alabama et al. ........................................................... 4
Anthony Douglas Elonis, Petitioner v. United States ..................................................................... 6
Clyde Reed et al. v. Town of Gilbert, Arizona et al. ...................................................................... 8
Holt, aka Muhammad v. Hobbs, Director, Arkansas Department of Corrections, et al. .............. 10
James Obergefell, et al. v. Richard Hodges, Director, Ohio Department of Health, et al. ........... 12

Glossip et al. v. Gross et al.

576 U.S. ___ (2015)
FACTS:
Oklahoma changed the first dose of a three-drug cocktail to Midazolam because they could
no longer obtain the two previously preferred drugs. The purpose of the first drug is to induce a
state of unconsciousness because the other two drugs cause a lot of pain and the execution must
remain humane. This procedural change was challenged by four petitioners. All four were
currently on Death Row in Oklahoma and had been found guilty by a jury trial then sentenced to
death by a second jury. They also each exhausted the appeals system, both state and federal, for
their individual cases. They then joined together to challenge the states change of drug, claiming
that Midazolam violates the 8th Amendment because it subjects them to a strong risk of severe
pain. They pointed towards Lockett and other mishandled executions as a main evidentiary point
of concern. The case originated in federal District Court, which ruled against the petitioners. They
then filed an appeal; the Federal Court of Appeals upheld the original ruling. The Supreme Court
finally granted the request for a writ of certiorari, but not until after an initial denial. In the
meantime, one of the four petitioners was executed because a request for a preliminary injunction
was denied.
The inherent dispute is that the petitioners believe that the use of Midazolam exposes them
to a risk of severe pain, which would be a violation of their 8th Amendment protection against cruel
and unusual punishment.
ISSUES:
Does the states use of Midazolam constitute a violation of the petitioners 8th Amendment
protections from cruel and unusual punishment?
HOLDING:
The final decision was to uphold the decisions of the lower courts, holding that the
petitioners failed to establish a likelihood of success on the merits of their claim, present a less
risky alternative method, and prove a likely outcome of extreme pain due to the substitution of
Midazolam. The vote was 5-4 with Justices Alito, Scalia, Thomas, Kennedy, and Roberts
representing the majority and with Justices Ginsburg, Breyer, Sotomayor, and Kagan dissenting.
REASONING:
Majority opinion by Justice Alito, joined by Justices Roberts, Scalia, Kennedy, and Thomas:
Justice Alitos majority opinion upheld both the decisions of the lower courts and the
reasoning behind their conclusions. The opinion relies heavily on precedent, especially concerning
the Baze v. Rees case, 553 U.S. 35. This precedent requires the petitioner to prove severe risk of
pain in addition to identifying an available alternative that represents less risk of pain. He notes
that methods have changed numerous times since the amendments were authored. Throughout the
evolution of the punishment protocol, the state has maintained the ability to use capital punishment
and the Court acknowledges that not all risk of pain can be avoided. Justice Alito points to many
past cases in making his point that the overall constitutionality of the death penalty has been well
settled.
He also maintains that cases challenging lethal injection protocols near the line of what the
Courts can effectively adjudicate due to the heightening amount of scientific expertise needed,

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placing a heavy burden on the petitioners to prove, in laymans terms, that the protocol in question
puts them into severe danger. In Alitos review of the petitioners claim of err in the lower courts,
he found that there were no material errors in the testimony or judgement. As such, they were
unable to prove that the change in protocol presented a significant risk of pain. Their two main
arguments, a ceiling effect of the dosage and general inefficacy of drugs ability to induce
unconsciousness, were both discounted by expert testimony on both sides. He also makes the point
that a few mishandled executions, in the face of many that occurred without issue, point to
unfortunate mistakes, but not a significant risk of pain. In addition, since the two mishaps, states
have updated protocols to help ensure a smooth process.
The opinion concludes that this specific case fails to demonstrate any significant risk of
pain and does not offer any alternative to the current methodology. By following the precedent set
by Blaze, Justice Alito keeps the Supreme Courts position on the death penalty and methodology
of lethal injection static. Therefore, Justice Alito rules to maintain the decisions of the lower courts
in the matter.
Concurring opinion by Justice Scalia, joined by Justice Thomas:
Justice Scalias opinion is in response to the methodology and reasoning in Justice Breyers
dissent. He claims that the death penalty as a punishment cannot be argued as cruel due to
unreliability for the sole reason that it is the conviction that is usually unreliably applied and not
the punishment itself. Justice Scalia also takes issue with Justice Breyers assertion that the death
penalty has become unusual since most states do not use it, insisting that his calculation is flawed.
Concurring opinion by Justice Thomas, joined by Justice Scalia:
Justice Thomass opinion argues that the case had no valid claim in part due to the fact the
change in protocol was not in an effort to make the death penalty more painful. In addition, he
argues the empirical study referenced in Justice Breyers dissent is flawed because it attempts to
prove a jury trial results in arbitrariness through a review by individuals. His overarching theme is
that the judicial system is designed to leave capital punishment decisions to juries consisting of
the defendants peers and each case the Supreme Court hears interferes in this process. In his
opinion, if the country wishes to eliminate the death penalty it should do so through democratic
processes and not the more haphazard suppositions of the courts.
Dissenting opinion by Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan:
Justice Sotomayors dissent takes direct issue with the Courts opinion in regards to this
case specifically, rather than death penalty cases in general. She questions the validity of expert
testimony upon which the Court relied when claiming the Petitioners failed to prove Mizadolam
presents an intolerable risk of harm. The other main aspect of the dissent was that the obligation
of the Petitioners to identify an alternative execution methodology was unfounded constitutionally
and within precedent.
Dissenting opinion by Justice Breyer, joined by Justice Ginsburg:
Justice Breyers dissent is aimed to argue the unconstitutionality of the death penalty in its
entirety. He focuses on studies and statistics in an attempt to show that capital punishment
constitutes cruel and unusual no matter the situation due to unreliability, arbitrariness, long
delays, and the pattern established by most states no longer implementing it. He also cites the
majority of jurisdictions outside the United States that have banned capital punishment.

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IMPLICATIONS:
This case is important in demonstrating that the U.S. Supreme Court continues to support
the notion that because capital punishment is constitutional, there must be a constitutional means
of carrying it out. It also upholds a states ability to substitute drugs in the cocktails, which is
important because parties in favor of the abolishment of the death penalty have partaken in
lobbying drug manufacturers, keeping them from providing the drugs traditionally used in
executions. The majority opinion also serves to reinforce that in order for an 8th Amendment claim
to be successful, the petitioners must provide a less risky alternative. Considering this precedent
was set in a past case, its continuing application speaks to the Courts interpretation of the 8th
Amendment. It also clears up the Courts weighting of plurality in its determination of whether a
punishment is unusual by explaining that saying the existence of widespread use helps show a
method is acceptable does not imply the converse is necessarily true. In this case, it meant that the
Court dismissed the fact that many states no longer use the death penalty, indicating a change in
public opinion. The multiple and strong dissents to the decision coupled with the narrow vote
indicate that the Supreme Court may be nearing the need to decide more broadly on the use of
capital punishment rather than the status quo of case by case evaluation.

McBride 3

Alabama Legislative Black Caucus et al. v. Alabama et al.

575 U.S. ___ (2015)
FACTS:
In 2012, the Alabama legislature conducted a redistricting, as required after a census. In
doing so, its stated legislative goals included traditional redistricting goals in addition to two other
objectives: maintaining equal population representation within 1% deviance and maintaining the
percentages of minority majorities in the districts where the majority already exists. The first goal
was in an effort to uphold the one person, one vote principle. The second goal was driven by the
States attempt to avoid the ban on retrogression brought on by the Voting Rights Act of 1965.
Two groups, the Alabama Legislative Black Caucus and Alabama Democratic Conference, filed
similar cases in District Court challenging the new district map. They claimed that the redistricting
constituted racial gerrymandering and therefore violated their members 14th Amendment rights
to equal protection. After the District Court ruled against them, the Supreme Court granted the
appeal.
The inherent dispute is that the plaintiffs believe the State of Alabamas redistricting efforts
resulted in racial gerrymandering that violated minorities 14th Amendment right to equal
protection.
ISSUES:
Did the District Court err in its determination of no racial gerrymandering in the context of
th
the 14 Amendment and the Voting Rights Act of 1965?
HOLDING:
The final decision was to vacate the District Courts decision and remand the case for
further proceedings. The Court found that the District Court erred in viewing the case only from
the state as a whole standpoint, determining that the Conference had no standing, calculating
predominance, and reading Section 5 of the Voting Rights Act as requiring a certain percentage of
minority voters in districts. The vote was 5-4 with Justices Breyer, Kennedy, Ginsberg, Sotomayor,
and Kagan representing the majority with Justices Scalia, Roberts, Thomas, and Alito dissenting.
REASONING:
Majority opinion by Justice Breyer, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan:
Justice Breyers majority opinion begins by examining the District Courts examination of
the racial gerrymandering claim on the state as a whole. It used the argument that since, in some
districts, race was not a predominant factor in determining district lines, then racial
gerrymandering could not have occurred in the state as a whole. However, the majority argues that
the District Court erred in relying on this analysis since racial gerrymandering applies on a districtby-district basis. In response to dissents, Justice Breyer claims that enough argument on a district
level occurred that a correct determination could have been made. Evidence is clear that, in some
districts, the state moved voters for the sole purpose of maintaining racial percentages. The opinion
makes a distinction between the Conferences argument and evidence, maintaining that since they
found district-specific arguments the statewide evidence still applies.
In the opinion, the majority makes it clear that standing is not an issue and that the burden
does not lie with the conference to prove standing. The Court does sees it easy to understand that
a minority political organization is likely to have members in minority-majority districts and also

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finds that there has been no evidence presented to the contrary. In the end, there was never a
challenge or court request for the Conference to prove standing so the District Court erred in ruling
no standing without asking for additional evidence first. The opinion moves on to examine the
District Courts evaluation of predominance. The District Court determined that the goal of oneperson one-vote trumped all other motivations in this redistricting. However, the majority holds
that this equal vote goal is inherent to redistricting itself and is not a factor in boundaries, but rather
the purpose of the act itself. Essentially, race would need to be predominant when measured against
other factors that would determine how one-person one-vote policy would be achieved. Under this
framework, race is a predominant factor in the state goal of maintaining percentages.
Finally, the Court majority finds that Section 5 is misinterpreted by the District Court in
accepting the states goal to satisfy Section 5 retrogression prohibitions by maintaining voter
percentages. Therefore, the same percentage does not have to be maintained and keeping those
percentages is not the least restrictive means of protecting minority representation. Instead, the
opposite effect emerges as the minority vote becomes concentrated in a fixed number of districts
when those votes would otherwise be used in other districts to further minority interests there.
Dissenting opinion by Justice Scalia, joined by Justices Roberts, Thomas, and Alito:
Justice Scalias dissent primarily argues against the Courts presumption of specific district
claims made by the plaintiffs. According to his interpretations of the documents pertaining to the
case, the plaintiffs fail to argue for specific districts which is a fundamental requirement for a racial
gerrymandering argument. He also stands by the District Courts no standing determination for the
conference, by indicating that the burden of proving standing falls on the plaintiff and cannot occur
during the appeal for the first time, as they attempt to do here. The dissent warns that the Courts
decision creates a dangerous precedent allowing a departure from the judicial systems adversarial
basis by remanding the case. Effectively, he opines that the Court is giving the plaintiffs an
opportunity to reargue the case because the original legal strategy was flawed in focusing on the
whole state.
Dissenting opinion by Justice Thomas:
Justice Thomas dissents more broadly, arguing that the judicial system has been
perpetuating an improper practice of packing minority majority districts in an effort to create
minority representation. He notes that the Department of Justice, in its enforcement of the Voting
Rights Act provision for preclearance, has required states to create minority supermajority
districts. Justice Thomas sees this as inherently threatening to voting equality and, more
specifically, out of the scope of the Voting Rights Act.
IMPLICATIONS:
Although I understand the arguments made by Justices Thomas and Scalia, I feel as though
such a textual interpretation of the case is not applicable to such a fundamental right. The Courts
opinion does give direction to the lower courts to read more in between the lines concerning voting
rights arguments. However, I see this as positive because it gives the courts room to determine
rights violations in a broader sense and help avoid legal loopholes. If this case had been lost merely
because the plaintiffs did not originally present enough district-specific evidence, despite its
existence, that would have allowed an unconstitutional redistricting to remain in effect. Instead,
the Court chose to opine on the more fundamental ideas of the case and send it back to the lower
courts to receive a fairer interpretation.

McBride 5

Anthony Douglas Elonis, Petitioner v. United States

575 U.S. ___ (2015)
FACTS:
The Petitioner, Anthony Douglas Elonis, was charged with five counts violating 18 U.S.C
875(c) and convicted on four. The statute makes it a crime to transmit communications containing
a threat. The case arose after Elonis created a Facebook page under a pseudonym to post creative
thoughts, lyrics, and satires. His writings were violent and clearly targeted towards specific people,
however Elonis included disclaimers of fictional content and expressive intent. The first count
came from a post referencing co-workers and patrons of his workplace after he was fired. The
second count came from statements leading his wife, who had left him, to obtain a restraining
order. The ex-manager informed the FBI, who began an investigation. Out of frustration with law
enforcement, Elonis authored several other posts. The content of these led to counts regarding
threats to a kindergarten class, local law enforcement, and a FBI agent investigating him. He was
found guilty off all counts except for the one against his co-workers and patrons from the theme
park where he used to work.
During the trial, Elonis requested that the instructions to the jury reflect the need for the
government to prove his intent. However, the instructions that were issued compelled jurors to
only consider whether a reasonable person could construe the content of the communications as
a threat. In his appeal to the 3rd Circuit Court of Appeals, Elonis again argued that these instructions
were incorrect. He also maintained that his posts did not constitute true threats as defined by 1st
Amendment case law. The District Court affirmed the original verdict and held that the reasonable
person test was correctly applied. The Supreme Court granted the petition for a writ of certiorari.
ISSUES:
Does 18 U.S.C 875(c) carry a state of mind implication that requires juror consideration
of intent rather than a reasonable person test and, if not, does the 1st Amendment protect Eloniss
speech or do they meet classification as unprotected true threats?
HOLDING:
The Supreme Court held that the jury instructions provided in Eloniss case, calling for a
reasonable person test did not correctly interpret the statue because the level of mens rea
typically read into criminal statues requires a consideration of state of mind. The holding explicitly
declines to rule on the question of recklessness on the basis that it was not sufficiently appropriate
for this case. In addition, since the holding finds state of mind in the criminal statute, the Supreme
Court makes no decision in regards to the 1st Amendment claim. This was a 7-2 opinion with
Justices Roberts, Scalia, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joining the majority
and Justice Thomas dissenting. In addition, Justice Alito concurs in part and dissents in part.
REASONING:
Majority opinion by Justice Roberts, joined by Justices Scalia, Kennedy, Ginsburg, Breyer,
Sotomayor, and Kagan:
The majority opinion begins by denying both sides interpretations of the statute. On one
hand, the government went too far in applying expression unius est exclusio alterius to the statute
in relation to neighboring ones. They claimed that since the neighboring statutes explicitly
mentioned intent, Congress must have left intent out of 875(c) for a reason. Justice Roberts also

McBride 6

discounts Eloniss assertion that intent is inherent in threat as a word. Instead, the opinion turns
largely to precedent and finds that means rea must be read in based on the principle that, in criminal
cases, wrongdoing must be conscious to be a crime and that omission of intent in a statute does
not mean it is dispensed. Morissette v. U.S., 342 U.S. 246, 250 (1952) is widely cited in defense
of these principles.
The opinion maintains that this standard does not allow ignorance of the law to be
defensible, but only that the defendant has an understanding of the facts. In this case, Justice
Roberts claims that the mental state must be applied to the question of whether the communication
contained a threat since that is what differentiates innocent from criminal conduct. In this area, the
opinion finds that the government only applied a standard of negligence by proving only that
Elonis understood the words and context of his posts. The opinion then defends itself against some
of the dissent, by opining that this decision is in line with the Supreme Courts decisions in Rosen
v. U.S., 161 U.S. 29 (1896) because that case dealt with the question of ignorance of the law and
not negligence, recklessness, or intent. The majority believes that the arguments presented provide
clear instructions for the lower courts. Finally, the majority declines to rule on the presence of
recklessness because it is not a part of this specific case and also declines to rule on any 1 st
Amendment implications because state of mind was found in the statute itself.
Concurring in part and dissenting in part by Justice Alito:
Justice Alitos opinion concurs with the majoritys decision to read in mens rea. However,
should have extended the argument to state that recklessness allows for conviction. He takes issue
with the majority claim that recklessness was not adequately debated as part of this case. In his
dissent, Justice Alito also determined that Eloniss posts would not be protected by the 1 st
Amendment. He held that the majority opinion only indicates what the law is not, when the
Supreme Courts job is to tell the lower courts what the law is. In this light, he believes the majority
failed in adjudicating the case.
Dissenting opinion by Justice Thomas:
In his dissent, Justice Thomas claims that the lower court decision should be affirmed
because the general intent standard was correctly applied, meaning he did not find a standard of
negligence, and Eloniss communications are true threats and therefore unprotected by the 1st
Amendment. He interprets much of the same precedent in a different way than the majority and
claims the majority decision runs contrary to long held standards in criminal prosecution and
previous Supreme Court decisions like Rosen. Lastly, he agrees with Justice Alito in stating that
this decision will create more questions and confusion in the lower courts.
IMPLICATIONS:
Considering the widening usage of social media and the internet to transmit ideas, a case
like this proves the difficulty in proving the legal standard of intent. Although a protection for free
speech, this decision could make it more difficult for law enforcement to investigate and prosecute
when people feel threatened. I also agree with the dissents that the decision lacked a clear path for
the lower courts to follow in determination of these types of cases. Considering such a differing
opinion between one of the justices and the rests exists in interpreting criminal law standards, Id
say that clarity is important here. However, if it ever became in the interest of the public to restrict
threats further, judging from Justices Thomass and Alitos application of the 1st Amendment,
Congress has more constitutional room to move against threatening statements.

McBride 7

Clyde Reed et al. v. Town of Gilbert, Arizona et al.

576 U.S. ___ (2015)
FACTS:
Clyde Reed is the pastor at a local church in Gilbert, AZ. The church does not have a
building so it holds its services in a different location every Sunday. In order to inform the public
of its location, it places signs with the time, place, and church name around town. The signs are
usually placed Saturday morning and removed midday Sunday.
The town of Gilbert, AZ has a sign code that exempts 23 sign categories from a permit
requirement, but each category places limitations on the signs. The churchs signs were placed in
the temporary directional sign category, subjecting them to size, place, and time restrictions.
Some of the categories, like ideological signs carry no restrictions except regarding size. The
church has been cited twice by the town for its signs. The first time for leaving them out beyond
the 12 hour rule and the second for the same infraction plus not listing a date on the sign.
The church sued the town in the Arizona Federal District Court on the grounds its 14th and
1st Amendment free speech rights were violated. The District Court ruled in favor of the town and
the 9th Circuit Court of Appeals affirmed the decision that the sign code did not regulate on the
basis of content. The case was remanded to the District Court for ruling on whether the 23
categorizations themselves constituted content-based regulations. Again, the District Court ruled
in favor of the town and the 9th Circuit Court of Appeals affirmed, holding that the categorization
was based on objective factors. The Supreme Court granted the petitioners request for writ of
certiorari.
ISSUES:
What level of evaluation is appropriate to evaluate the Town of Gilberts Sign Ordinance
and does it violate the 1st Amendment Freedom of Speech rights of the church, applied to local
government through the 14th Amendment?
HOLDING:
The Supreme Court held that the District Court err in its judgement and decided that the
towns sign code was content-based regulation, leading the Court to apply a test of strict scrutiny.
The sign code failed the strict scrutiny test considering the regulations were not the least restrictive
means of achieving the towns interests. The District Court decision was reversed and remanded
with a 9-0 majority consisting of Justices Thomas, Roberts, Scalia, Kennedy, Alito, Sotomayor,
Kagan, Ginsburg, and Breyer.
REASONING:
Majority opinion by Justice Thomas, joined by Justices Roberts, Scalia, Kennedy, Alito, and
Sotomayor:
Justice Thomas begins the majority opinion describing how the sign ordinance is contentbased regulation on its face, making the governments justification a moot point even if it is
innocent. This is directly contrary to the District Courts finding, which failed to analyze contentneutrality in the same way. Considering the regulations depend entirely on the communicative
content of the signs to categorize and regulate them, strict scrutiny is automatically the evaluation
method.

McBride 8

The opinion then makes the distinction that discrimination against a subject matter as a
whole is the same as discrimination within a certain subject, meaning the fact that the regulation
applies to all churches does not make it neutral. As the entire opinion runs contrary to the District
Court, Justice Thomas relies heavily on precedent from various cases. He claims that the District
Courts determination that the regulations were content-neutral because they were speaker based
is wrong for two reasons. Firstly, the different speakers could produce the same signs and face the
same regulation and, secondly, there is no precedent cited for this justification.
In applying strict scrutiny, the majority finds that the towns two interests, aesthetics and
traffic safety, were not achieved using the sign ordinance as least restrictive means. The town
failed to prove that temporary directional signs were any more detrimental to appearances as
other signs categories without restrictions and that they were any less safe than other sign
categories, which oftentimes were allowed to be even larger, arguably making them more
distracting to drivers. The opinion concludes with the affirmation that this decision is not intended
to have the effect of overturning sign regulations everywhere, but only in the content-based arena.
Concurring opinion by Justice Kagan, joined by Justices Ginsburg and Breyer:
Justice Kagans concurring opinion agrees with the majority only in judgement, claiming
that the majoritys decision puts many normal laws in jeopardy by elevating this to strict scrutiny.
She outlines how the case would have failed intermediate scrutiny, which would have been more
appropriate for a time/place/manner case like this. Also, she questions whether the precedent is as
rigid concerning the justification for strict scrutiny as the majority opinion implies.
Concurring opinion by Justice Breyer:
Justice Breyer also only concurs with the judgement of the Court. His line of reasoning
closely follows Justice Kagans concurring opinion in voicing consideration that strict scrutiny is
too strong to apply to this case. He argues for using content discrimination to determine
appropriateness of strict scrutiny applications.
Concurring opinion by Justice Alito, joined by Justices Kennedy and Sotomayor:
Justice Alitos concurring opinion serves to give examples of sign regulation that is not
content-based and therefore only subject to a lower level of time/place/manner intermediate
scrutiny.
IMPLICATIONS:
Freedom of Speech cases are always interesting because they represent one of the most
fundamental and respected rights in the nation. I disagree with the dissents of this case that say
this decision will have a detrimental effect on governments ability to regulate normal things like
signs. Instead, I believe some laws will just need to be rewritten to be more inclusive to reflect a
content-neutral solution. However, I agree that intermediate scrutiny could have easily been
applied here considering the regulation was time/manner/place related and not in direct
consideration of the content of the signs. I do think that strict scrutiny should be reserved for more
powerful cases. In the end, the rights violation only arose because a church left signs out a few
hours longer than the town wanted.

McBride 9

Holt, aka Muhammad v. Hobbs, Director, Arkansas Department of Corrections, et al.

574 U.S. ___ (2015)
FACTS:
The petitioner, Gregory Holt, also known as Abdul Maalik Muhammad, is a prisoner
serving his sentence within the Arkansas correctional system, which is overseen by the respondent,
Ray Hobbs, in his capacity as Director of the Arkansas Department of Corrections. Holt is a devout
Muslim and sincerely holds the belief that men should grow beards as a part of his religion. The
correctional system has a policy of disallowing beards, except in cases of medical allowance of a
-inch beard for skin conditions. In an attempt to compromise with prison policy, Holt offered to
maintain his beard at -inch. In addition, he suggested including two photos of him on his ID
badge, one with and one without a beard.
The petitioner first filed a pro se complaint in Federal District Court that was granted a
preliminary injunction and heard by a Magistrate Judge. The Court deferred to the Departments
arguments, as the experts on prison security, that this would pose a safety threat because a prisoner
could use the beard to change his appearance and evade detection or to conceal contraband. The
Court held that the systems allowance of other means of practicing Holts faith was sufficient.
The District Court accepted this judgement and the 8th Circuit Court of Appeals affirmed with a
per curiam opinion. The Court of Appeals held that the Department showed that the no beard
policy was the least restrictive means to further its compelling security interests. The Supreme
Court granted an injunction, then granted the petition for writ of certiorari.
ISSUES:
Does the Arkansas Department of Corrections no beard policy impose a burden on the
petitioners religious exercise in violation of the Religious Land Use and Institutionalized Persons
Act of 2000?
HOLDING:
The Supreme Court held that the Departments policy violated Section 3 of the Religious
Land Use and Institutionalized Persons Act of 2000 (RLUIPA) in that despite having a compelling
security interest, the policy placed a substantial burden on the petitioners religious beliefs without
employing the least restrictive means. The 8th Circuit Court of Appeals decision was reversed and
the case remanded. This was a 9-0 unanimous decision with Justices Ginsburg and Sotomayor
filing concurring opinions.
REASONING:
Majority opinion by Justice Alito, joined by Justices Kennedy, Ginsburg, Sotomayor, Scalia,
Breyer, Kagan, Thomas, and Roberts:
Section 3 of RLUIPA states that no government entity can impose a substantial burden on
religious exercise of an institutionalized person without employing the least restrictive means to
further a compelling interest of the State. This effectively elevates the case to strict scrutiny
evaluation. Alito places emphasis on the clear indication of strict scrutiny evaluation indicated by
this act of Congress, affording additional protection of religious freedom than precedent would
afford. He makes direct point that the legislation recognizes that government might have to incur
expenses in order to remove burdens on religion.

McBride 10

According to the opinion, the District Court erred in relying on precedent and not applying
the additional protections afforded by RLUIPA by determining that alternative means of exercising
faith properly mitigated the burden. The Court also determined that RLUIPA does not allow for
complete deference to officials, instead placing a burden of explanation and proof on the State. In
the Courts opinion, the Department could not prove that a -inch beard could be used to hide
contraband or that a second ID picture could not solve the identity issue. Alito also mentions that
other states allow -inch beards and the Department did not provide ample evidence to
demonstrate that a similar policy could not work in Arkansas, meaning the Department failed to
show that the no beard policy actually enhances prison security. In fact, the Federal Magistrate
mentioned that he felt it unlikely contraband could be concealed within a -inch beard. With these
main points, the majority determined that a no beard policy was not the least restrictive means to
further the compelling interest of prison security. Instead, it places a burden on religious exercise
that is protected by RLUIPA.
Concurring opinion by Justice Ginsburg, joined by Justice Sotomayor:
Justice Ginsburg includes the clarification that this opinion is different than the Courts
decision in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2015), in that accommodation by
the Department does not detrimentally affect others who do not share the same religious beliefs.
Concurring opinion by Justice Sotomayor:
Justice Sotomayor opines that deference in these types of cases must still be afforded. She
argues that the Department did not lose because the Court made its own evaluation of the
petitioners proposed alternatives, but because the experts (meaning the Department) failed to
properly respond and provide proof that they were not plausible. She stresses the continued
importance of deference.
IMPLICATIONS:
This decision is important in that it forces the government to incur a cost in
accommodation. As a result, the prison system will need to improve its identification systems and
contraband search procedures. It is important that the court decided that every manner of religious
exercise is important in its own right and religious freedom does not mean some, but not all
opportunities to exercise. The case helps afford additional rights to inmates, but will probably not
have a direct impact on greater society.

McBride 11

James Obergefell, et al. v. Richard Hodges, Director, Ohio Department of Health, et al.
Valeria Tanco, et al v. Bill Haslam, Governor of Tennessee, et al
April DeBoer, et al v. Rick Snyder, Governor of Michigan, et al
Gregory Bourke, et al v. Steve Beshear, Governor of Kentucky
576 U.S. ___ (2015)
FACTS:
The petitioners in these cases are from the states of Michigan, Kentucky, Ohio, and
Tennessee. There are 14 couples and 2 petitioners whose partners have since deceased. Petitioners
filed suit in their respective home states challenging marriage bans that meant their states would
not issue them a marriage license or recognize a marriage licensed out of state. Each District Court
ruled in favor of the petitioners, legalizing same sex marriage. The 6th Circuit Court of Appeals
combined the cases upon its review and reversed the decisions, holding that there was no
constitutional protection of same sex marriage. The Supreme Court granted the request for writ of
certiorari.
ISSUES:
Does the 14th Amendment require a state to license same sex marriages and/or does the
th
14 Amendment require States to recognize same sex marriages performed and licensed in other
States?
HOLDING:
This decision held that the right to marry, either opposite or same sex, is an inherent liberty
protected by the Due Process and Equal Protection Clauses of the 14th Amendment. The 6th Circuit
Court of Appeals decision was reversed and remanded. The decision overturns Baker v. Nelson,
409 U.S. 810 (1972). This was a 5-4 decision with Justices Kennedy, Ginsburg, Breyer,
Sotomayor, and Kagan representing the majority. Justices Roberts, Scalia, Thomas, and Alito
dissented.
REASONING:
Majority opinion by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan:
In the majority opinion, Justice Kennedy frames the case for same sex marriage within the
history of marriage as an institution. He points out that it has grown and changed throughout time
in step with society, highlighting the shift from arranged marriages and then again as coverture fell
away. He answers the dissent that marriage, as an institution, would be detrimentally affected by
same sex allowance. However, the majority makes the argument that the petitioners to not seek to
defame marriage, only access its numerous and unique benefits and responsibilities. They discuss
the motivations of some of the petitioners, most notably Obergefell, who was unable to be listed
on his partners death certificate because the State refused to recognize a marriage certificate from
Maryland, and DeBoer, who along with her partner have adopted several special needs children,
but cannot both be listed as legal parents.
The opinion also points to a foundation of the constitutional protection of the right to marry
with precedent from Loving v. VA, 388 U.S. 1 (1967) and Turner v. Safley, 482 U.S. 78 (1987),
which gave couples the right to marry interracially and while imprisoned, respectively. Both of
these cases found the right to marry within the 14th Amendment Due Process and Equal Protection
Clauses, in a similar way the majority does here. The Court maintains that marriage is one of the

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personal choices protected by the Due Process Clause considering the decision is central to
individual dignity and autonomy. In another attempt to answer the main dissents, the Court reasons
that these questions are appropriately answered by judicial review. They cite the growing
recognition of same sex rights in other areas as well as the healthy discussion across the nation. In
addition, they opine that the petitioners demonstrate harm, which creates an urgency that results
in the protection of fundamental rights by judicial action rather than awaiting legislative relief.
Justice Kennedy adds a final element to the majoritys justification for legalizing same sex
marriage, the children. He writes that the children of same sex couples, without proper recognition
of the marriage, would unfairly suffer from a stigma. Additionally, the legal uncertainty
surrounding their parents unions would contribute to a less stable home life. The Courts decision
heavily relies on Due Process liberty justification, but also mentions the connection between
liberties and rights protected by Equal Protection. In striking down laws imposing inequality in
same sex marriages, the majority leans on Equal Protection.
Dissenting opinion by Justice Roberts, joined by Justices Scalia and Thomas:
Justice Roberts claims that the Court is overstepping its role with this decision and that the
question of same sex marriage should be left to state legislatures, where debate is allowed to
determine action. Essentially, his dissent opines that democratic processes must determine what
marriage is defined as, then the Court can interpret accordingly.
Dissenting opinion by Justice Scalia, joined by Justice Thomas:
In Justice Scalias dissent, he follows Justice Robertss logic, but desires to bring additional
focus on how the majority opinion serves as a threat to democracy. He questions whether a right
like same sex marriage can be read into the 14th Amendment because that would mean that the
entire nation was in violation since inception.
Dissenting opinion by Justice Thomas, joined by Justice Scalia:
This dissent warns against using the Due Process Clause to create a class of substantive
rights, leading judges away from the text and original intent of the Constitution. Justice Thomas
focuses on the meaning of liberty being requiring protection from the government, not a right to
something and the idea that the political process serves as a protection of liberty.
Dissenting opinion by Justice Alito, joined by Justices Scalia and Thomas:
Justice Alito uses his dissent to argue that the questions posed in this case must be answered
through political processes.
IMPLICATIONS:
This case, in my opinion, is the right decision. It is clear that a social change was taking
place in the U.S. and that the legislative process was proving too slow. As a result, people like the
petitioners were feeling adverse effects. In particular, I believe the Court had a strong justification
in answering the question of states honoring other states licenses because that directly speaks to
equality in treatment throughout the nation. The decision, as we are seeing now, will face a lot of
backlash and it will be interesting to see if it is able to bring about real and immediate change,
unlike the landmark Brown cases that were unable to spark integration directly. This is a powerful
invoking of judicial review by the Supreme Court and its reputation and prestige will be damaged
if states successfully circumnavigate the clear intent of the decision.

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