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FEDERAL JUDICIAL POWER


Art. III courts

Article III courts are those established by Congress pursuant to the provisions
of Article III, Section 1. Congress has power to delineate the jurisdictional
limits, both original and appellate, of these courts, although it is bound by
the standards of judicial power set forth in Article III as to subject matter,
parties, and the requirement of case or controversy. Thus, Congress cannot
require these courts to render advisory opinions or perform administrative or
nonjudicial functions

A. The Authority for Judicial Review


Marbury v Madison (1803)

Original (Trial) Jurisdiction


Under Article III, Section 2, the Supreme Court has original jurisdiction in all
cases
affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be a Party. This provision is self-executing: Congress may
neither restrict nor enlarge the Supreme Courts original jurisdiction, but
Congress may give concurrent jurisdiction to lower federal courts and has
done so regarding all cases except those between states

B. Limits on the Federal Judicial Power


1. Constitutional limits - Justifiability cases and controversies
1. Standing

(i) Injury in fact, concrete and particulized and actual


or imminent, not conjectural or hypothetical
a. Injury in fact economic, non-economic
environmental ; Some specific injury
must be alleged, and it must be more
than the merely theoretical injury that all
persons suffer by seeing their
government engage in unconstitutional
actions.
b. Plaintiff has personally suffered an injury or will
suffer an injury.
c. equitable relief (declaratory or injunctive), - injury
is imminent and not speculative (Lyons)=factually
sufficient likelihood that the injury will occur
(ii) CausationPlaintiffs injury must be fairly traceable to
the Defendant
(ii) RedressabilityCourt win will alleviate at least some
of the harm to Plaintiff
Lyons plaintiff sought damages and injunctive relief after being choked by city police officers.
He alleged that the city permitted the police department to use unnecessary choke holds
indiscriminately. The Court conceded that Lyons had standing to sue for damages./103/
However, the Court held that he lacked standing to seek injunctive relief.
Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive
relief . . . if unaccompanied by any continuing, present adverse effects
. If chokeholds were authorized only to counter resistance to an arrest by a suspect, or to thwart an effort
to escape, any future threat to respondent from petitioner's policy or from the conduct of police officers
would be no more real than the possibility that he would again have an encounter with the police and that
he would either illegally resist arrest or the officers would disobey their instructions and again render him
unconscious without any provocation - See more at: http://caselaw.findlaw.com/us-supreme-
court/461/95.html#sthash.cFI1OsHr.dpuf

2. Ripeness, - not before statute is enforced or there is immanent


threat of being harmed
1. Mootness, - if controversy has been resolved prior to adjudication
(exceptions: wrong capable of repetition but evading review;
continuing harm Roe; pregnancy, elections,divorce
actions
2. Interpretive limits
3. Political Question Doctrines const, committed to another branch; no
justicially discoverable standsrds; need exist for deference to another
branch; need to speak with voice
4. Prohibition of Advisory Opinions

STATE ACTION DCTRINE

Constitution applies to Government actors, not private parties, unless there is a state action
when

Public function traditionally and exclusively reserved for the government

To date, only running a town and running an election for public


office have been found to be such exclusive public functions.

Entanglement if government affirmatively authorizes and facilitates or encourages a


private conduct

there must be some sort of affirmative act by the state approving


the private action; it is not enough that the state permits the
conduct to occur
Jackson v. Metropolitian (1974)

1. State Must Be Significantly Involved in Private Entity


The state must be significantly involved in the private entity. Merely
granting a license or providing essential services is insufficient.
2. No Constitutional Mandate to Outlaw Discrimination
States are not constitutionally required to outlaw discrimination. The
Constitution forbids only their encouraging or authorizing it

The Civil Rights Cases - Civil Rights Act of 1875 prohibited private discrimination in
hotel, inns, etc unconstitutional - The Fourteenth Amendment restrains only state
action. And the fifth section of the Amendment empowers Congress only to enforce the
prohibition on state action. Private acts of racial discrimination were simply private
wrongs that the national government was powerless to correct

; Marsh v. Alabama; - company town public function broad reading of the exception -
there was no significant difference between the relationship between Chickasaw and
private citizens and the relationship between any other town and its citizens. As such, it
employed a balancing test, weighing private property rights against an individual's right
to free speech

Jackson v. Metropolitan Edison electricity company and due process

Public function traditionally and exclusively reserved for the government here no

Entanglement if government affirmatively authorizes and facilitates or encourages a


private conduct here although heavily regulated, monopoly, state commission involved
not enough; policy reasons slippery slope)

II. FEDERAL LEGISLATIVE POWER

(a) Commerce Clause Power Congress can regulate:

(i) channels of interstate commerce; (rivers, airspace over the US, the internet;
railroads)

(ii) instrumentalities (vehicles of interstate commerce, facilitating interstate


commerce - airplanes, internet, cellphones and activities, like destruction or theft,
that affect those instrumentalities), persons or things in interstate commerce
(moved in jurisdictional hub);

(iii) economic (not non-economic, Lopez & Morrison; economic includes any commodity
-Raich) activity (not inactivity, NFIB v. Sebelius) that
1) has substantial effects on interstate commerce (Wickard); - aggregate some small
local activity

OR (b) that is necessary to effectuate a larger interstate regulatory scheme


(Raich, Necessary & Proper Clause + aggregation).

o Rational Basis review still alive (?) - congresss conclusion that economic
activity affects subst. interstate commerce need only be reasonable

o The Court reviews congressional findings under a deferential standard. But at


the same time the Court in its most recent cases has critically examined
Congress's methodology in arriving at findings. Morrison

o Congresss power to regulate is plenary over intrastate commerce may condition or


prohibit goods, as long as does not violate other const. provisions

Policy considerations for federalism states as laboratiris, S of P; more democratic closer to


people when local
History of CC

1) 19th c. 1890 Gibbons expansive interpretaions of CC; Restrctive 10th A.

Gibbons v. Ogden (1831) commerce broad interpretation; among means intermingled


with;

2) 1890 1937 Lochnr Era Conservative court narrow CC and broad 10th A.
Interpretation

Formalism, striking down min wage laws, only direct effect

3) 1937 1990 Broad CC, narrow 10th A

Wickard v. Filburn (1942) Filbirn ordered to pay a penalty for producing wheat in
excess of quata, purely local activity
Rejects distinction between direct and indirect
Substantial economic effect on interstate commerce
Maybe commutative
Rational basis

; Heart of Atlanta Motel (1964) Civil Rights Act, hotel geographically near interstate highway
Affects interstate travel affects interstate C - As 75% of the Heart of Atlanta Motel's clientele came
from out of state, and it was strategically located near Interstates 75 and 85 as well as two major U.S.
highways, the Court found that the business clearly affected interstate commerce
Motivation for law does not matter
Rational basis review for means

Katzenbach v. McClung (1964)truly local restaurant gets portion of food from interstate
commerce
Economic activity with a substantial effect on interstate commerce
Congress can regulate and prohibit racial discrimination

4) 1990 - ?? Limiting CC

U.S. v. Lopez (1990) federal gun -free zone Act exceeded Congresss CC powers

1. channels of interstate commerce railways, highways, navigation

2. instrumentalities (hotels, restaurants) or persons or things in interstate commerce (moved


in jurisdictional hub) in interstate commerce

3. economic activity substantially affecting interstate commerce

crime not an ecomonic activity Act unconstitutional


U.S. v. Morrison(2000) Violence against Women act proving for cause if action for civil
damages; numerous congressional findings (unlike in Lopez) about effect on intrsate commerce
Crime not an economic activity Act is unconstitutional
Truly local
No deference to congressional findings

Gonzales v. Raich (2005) controlled substance act Can Congress ban locally grown
marijuana for permitted medicinal use in CA
Ct:-Yes, local economic activity that substantially affects the nationwide interstate market for
marihuana fungible commodity
Unlike Lopez economic activity necessary to regulate for larger scheme
Scalia concurrence use the Necessary and Proper Clause for regulation of the larger scheme

Natl Fed. Independent Bus. v. Sebelius (2012) individual mandate and the Medicaid expansion
of the 2010 Patient Protection and Affordable care Act
Issue 1: Does Congress have the authority to pass the individual mandate under the CC or the
CC+the N&P C?
Passed because of the free-rider problem if you do not purchase a insurance pay a penalty with
our taxes

o Not a valid regulation under the CC Congress can regulate only economic activity not
inactivity; cannot create activity by regulating inactivity
o Not valid under the CC + N&P C has to be derivative from and in service to a granted
power

o Valid under the Taxing Power functionally like a Tax

the shared responsibility payment may for constitutional purposes be considered a tax, not a
penalty: First, for most Americans the amount due will be far less than the [485] price of
insurance, and, by statute, [71] it can never be more. It may often be a reasonable financial
decision to make the payment rather than purchase insurance, unlike the prohibitory financial
punishment in Drexel Furniture. 259 U.S., at 37, 42 S. Ct. 449, 66 L. Ed. 817.

Second, the individual mandate contains no scienter requirement.

Third, the payment is collected solely by the IRS through the normal means of taxation--except
that the Service is not allowed to use those means most suggestive of a punitive sanction, such as
criminal prosecution.

Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2595-96 (2012)

Issue 2: Is the Medic Aid expansion valid under the Spending and Taxing Power?
No, dramatic expansion ; crossed the line from encouragement to coercion
Fed funding to be withdrawn for non-complainace was 50 -80% of State MedicAid and 20% of
all state budget state did not have a meaningful choice

(2) Tenth Amendment Limits on the Commerce Power - No Commandeering


Tenth Amendment currently interpreted as an additional, judicially enforceable
limit on how Congress can regulate the States.

1. If Congress using the Commerce Clause Power, Congress cannot impose


affirmative duties compelling state officials to enforce a federal regulatory
program (no commandeering principle, Printz v. US);

2. Congress cannot require state to pass legislation

3. - Congress can impose negative prohibitions on State conduct, particularly if


the prohibition is generally applicable, i.e., applies to private actors as well
(Reno v. Condon)

Prinz v US (1997) Gun Control Act of 1986 requiring state officers to perform
background checks on prospective gun purchasers
Ct guns are things in interstate commerce so authority to pass act under the CC
But violate the 10th A Congress cannot commander state and local officers to administer a
federal program and congress cannot commandeer state legislation

Reno v Gordon (2000) Drivers Privacy Protection Act- regulates disclosure of


private info contained in state DMV records
Ct: Yes. Information is a thing in interstate commerce used by insures, marketers and others
in interstate commerce;
Yes state is not commandeered to regulate won citizens but exacting states to comply with a
general rule applicable to private actors as well; no affirmative duty

B: Congress Taxing & Spending Powers - Congress has the power to lay and
collect taxes, imposts, and excises, but they must be uniform throughout the
United States. [Art. I, 8]

Congress may spend to provide for the common defense and general
welfare. [Art. I, 8] This spending may be for any public purposenot
merely the accomplishment of other enumerated powers.

Congress can Tax and Spend for the general welfare (US v. Butler)

Congress can place conditions on spending grants if (SD v. Dole):

(i) spending is for the general welfare;


(ii) express statement of the condition; AND
(iii) condition is reasonably related to the federal interest in the spending
program nexus test)
AND
(iv) Tenth AmendmentNo Impermissible Coercioncondition is coercive if (NFIB v.
Sebelius):
(1) new program
(2) unforeseeable change
(3) so costly that State has no real choice in turning down the federal grant

South Dakota v. Dole (1987) IS the federal withholding of a small percentage of highway funds
to states allowing public possession or purchase of alcohol by individuals under 21 years is
constitutional? yes

Natl Fed. Independent Bus. v. Sebelius)

C: Congress Power Under the Post-Civil War Amendments section 5 power


(i) regulate state & local government conduct, not private actors - (Civil Rights Cases;
Morrison); only under 13th Congress can regulate both private and state actors
(ii) prevent or remedy violations of the XIV Amendment (but not make substantive changes
to meaning of XIV Amendment); legislation must be congruent and proportional to the
violation addressed (City of Boerne; Hibbs)
(iii) more leeway to Congress for rights whose restrictions Court reviews under heightened
scrutiny
To adopt a valid law, Congress must point to a history or pattern of state
violation of such rights and adopt legislation that is congruent and
proportional (i.e., narrowly tailored) to solving the identified violation.
When Congress is dealing with a type of discrimination that the Supreme
Court reviews using heightened scrutiny (i.e., race, national origin, or gender
Congress will generally have more power to act.

U.S. v. Morrison (2000) civil remedy for violence against women- No, congress cannot reach
private conduct under section 5 of the 14th A.
Katzenbach v. Morgan (1966); Voting rights Act- prohibits restriction on English literacy test
where applicant had studies in Spanish in Puerto Rico
Analyze under the necessary and proper clause is it plainly adapted to the goal of enforcing EP
and is it consistent with the letter and spirit of the constitution - Yes
City of Boerne v. Flores- REFRA
Congressional act to prevent or remedy a violation of the 14th A must be congruent and
proportionate, cannot redefine the scope of protection this is for the judiciary; so as applied to
the states it is unconstitutional; Ok as applied to the federal government
Nevada v. Hibbs (2003) - May an individual sue a State for money damages in federal court for
violation of the Family and Medical Leave Act of 1993?
Ct. Yes, Congress both clearly stated its intention to abrogate the States' 11th A. immunity from
suit in federal court under the FMLA and acted within its authority under section 5 of the 14th
A. by enacting prophylactic, rather than substantively redefining, legislation. "In sum, the States'
record of unconstitutional participation in, and fostering of, gender-based discrimination in the
administration of leave benefits is weighty enough to justify the enactment of prophylactic
[section] 5 legislation,"
congruent and proportional to its remedial object, and could be understood as
responsive to, or designed to prevent, unconstitutional behavior

LIMITS ON STATE REGULATORY & TAXING POWER


A. Preemption of State and Local Laws, - when conflict between fed and state law,
federal law prevail because of the Supremacy Clause
1. Implicit preemption if
1. Congress regulates subject matter pervasively, or
2. Congress enacts a law that directly conflicts with a state law
3. Where state law impedes the achievement of a federal objective

B. Dormant Commerce Clause judicially imposed limits on states regulation on


interstate commerce state and local laws are unconstitutional if they place an undue burden on
interstate commerce- state should not discriminate against out-of-staters particularly in economic
activities
1.
C. Privileges & Immunities Clause of Art. IV discrimination against citizens of
different states (aliens and corporation cannot sue; congressional approval does not excuse a
law violating the Privileges and Immunities Clause; no market exception allowing state to favor
citizens in government owned business as exists under the dormant Commerce Clause)

III. FEDERAL EXECUTIVE POWER


A. Presidential PowerFour Models (Youngstown)
Model 1: President may only act of there is express constitutional or statutory
authority no inherent powers.
Model 2: President has inherent authority and so may act without express
constitutional or statutory authority unless it usurps the powers of another branch of
government. Court determines whether there is a usurpation Court is the check on
Presidential usurpation of power (e.g., US v. Nixon)
Model 3: President may act with inherent authority unless Congress has disapproved.
Congress is the check on Presidential power (Justice Jacksons three zones) (e.g.,
Hamdi)
Model 4: President has broad inherent powers; neither Court nor Congress can
check inherent power only applied in context of certain foreign policy issues
(Curtiss-Wright).

A. Inherent Presidential Power
Youngstown Sheet & Tube Co. v. Sawyer (1952) President Truman seizes the steel mills to
prevent a strike. Is it within his power to do based on his inherent powers and in is capacity as
commander in chief? NO
Ct. Black No express power, president cannot exercise legislative power
Jackson Congress as a check Pres. Power at its greatest when upon congressional
implied or express authority=pres. Own constitutional power + authorization from Congress; at
ist minimum when contravening Congress =Pres. Own const. power that of Congress; middle
twilight zone congress silent depends on the facts
Douglas inherent powers as long as does not violate SP- court as a check
U.S. v. Nixon(1974) executive privege is an inherent power but it is not absolute and is subject
to judicial oversight - Model 2, court protecting from usurpation by president of judicial power)

B. Separation of Powers, Foreign Policy and the War on Terrorism


U.S. v. Curtiss-Wright Export Co.(1936) joint resolution from Congress authorizing president
to impose arms embargo it is unconstitutional delegation of power? No
Ct foreign affairs President has broad inherent powers

Hamdi v. Rumsfeld (2004) habeus petition from designation and detention as an enemy
combatant
Does Pres. Have power to detain? Ct. yes, statutory power -

Does Hamdi have the right to due process? Ct-H. Fifth Amendment due process guarantees
give a citizen held in the United States as an enemy combatant the right to contest that detention
before a neutral decisionmaker. The plurality rejected the government's argument that the
separation-of-powers prevents the judiciary from hearing Hamdi's challenge
Boumediene v. Bush Military Commissions Act does not satisfy Suspension Clause

Privileges and immunities

Presidential documents and conversations are presumptively


privileged, but the privilege must yield to the need for such materials as
evidence in a criminal case to which they are relevant and otherwise
admissible. This determination must be made by the trial judge after
hearing the evidence

C. Checks on the President: Civil Lawsuits

(i) Actions taken while in Office (official acts) President has absolute immunity in
perpetuity (Nixon v. Fitzgerald)

Nixon v. Fitzgerald (1982) civil suit for damages against a sitting President for Actions while
in office absolute immunity unique role of the president

(ii) Actions taken prior to Office (unofficial acts) President has no immunity, not even
temporary immunity while in office (Clinton v. Jones - no worry about decisions while in
ofiice no chilling effect

VI. EQUAL PROTECTION

1. Is it state action?

2. What is the classification? Suspect or not suspect?

3. Level of scrutiny

4. Goal

5. Fit

14th A applies to the states reverse incorporation through the 5th A. and applicable to the federal
government

US v. Carolene Products higher scrutiny for fundamental rights and for discreet and insular

A. Rational Basis Test burden on the challenger


1. Legitimate purpose any conceivable purpose need not be actual one, a
but bare animus does not suffuse
2. Rationally related not arbitrary, very deferential to legislature; under and
over inclusive is fine
3. Burden on challenger

Rational Basis Test (Standard Approach)


Railway Express Agency Inc. v. New York (1949)- advertising regulation that allows ads only on
vehicles engaged in owners usual work? Does it violate EP?
Ct. No. Government may eradicate evils one step at a time!
New York City Transit Authority v. Beazer (1979) policy of excluding methadone users from
employment
Ct; Constitutional and does violate EP
Over and under inclusive survives under rational basis

Rational Basis Test (Exceptional Cases with Bite) when? Severely under or
overinclusive - nature of the burden & bare animus
U.S. Department of Agriculture v. Moreno (1973) fed law denying food stamps to households
containing unrelated individual unconst
Ct. legislative history revealed acct motivated by desire to exclude hippie communities Bare
congressional desire to harm a politically unpopular group cannot constitute a legitimate
purpose
City of Cleburne v. Cleburne Living Center, Inc. special permit required by city for building a
home for the mentally retarded violates EP
CT rational basis for clarification based on mental disability, but cannot be based on irrational
prejudice and cannot give effect to private biases through law
Why RB?-amourphous group, not politically powerless, slippery slope

Romer v. Evans(1996) amendment 2 denying gays inclusion in any anti-discrimination laws


Ct; so broad denies protection overboard on so narrow a characteristic bare animus

U.S. v. Windsor (2013) Does the Defense of Marriage Act, which defines the term "marriage" under
federal law as a "legal union between one man and one woman" deprive same-sex couples who are legally
married under state laws of their Fifth Amendment rights to equal protection under federal law?
Yes: the purpose and effect of DOMA is to impose a "disadvantage, a separate status, and so a stigma" on
same-sex couples in violation of the Fifth Amendment's guarantee of equal protection. the majority opinion
did not address the issue of whether or not the Equal Protection Clause required laws restricting the
definition of marriage to be reviewed under a rational basis or strict scrutiny standard so rational basis with
bite

B. Classifications Based on Race and National Origin Strict Scrutiny Test


Facial Classifications
Korematsu v. U.S.(1994) WWII internment of Japanese Americans const.
SS for racial classification; goal is national security, fit - deference to the military

Loving v. Virginia (1976) Virginia law baring interracial marriages - -unconstitutional SS


and aim to protect white supremacy not a legitimate aim
Palmore v. Sidoti (1984) trial court divested Palmre of custody if her child due to marriage to a
man of different race unconst.
Plessy v. Ferguson (1896) separate railroad carriages for blacks and white held constitutional
Separate but equal; not a badge of inferiority
Harlans dissent: No caste here. The Constitution is color blind neither knows nor
tolerates castes among citizens

Brown v. Board of Education- segregation in schools is inherently unequal


SS imposes inferiority and cannot benefit from education reliance on social data
Brown II remedies issue - with all deliberate speed

Affirmative Action & School Integration, - SS Why? (1) never benign;(2) badge of
inferiority on benefitting minority; (3)color blind principle; (4) racial classification
prolongs civil strife; (5) smoke out invidious discrimination
Grutter v. Bollinger (2003) - Grutter, a white resident of Michigan, applied for admission to the University
of Michigan Law School. Grutter applied with a 3.8 undergraduate GPA and an LSAT score of 161. She was
denied admission. The Law School admits that it uses race as a factor in making admissions decisions because
it serves a "compelling interest in achieving diversity among its student body. critical mass upheld
Ct. Const. SS!!!!
Diversity in higher education is compelling goal!
Fit narrowly tailored 5 factors

1) no quotas; critical mass is OK

2) race as a plus factor is ok, individualized assessment

3) no separate tracks for a group based on race

4) limited in time 25 years

5) good faith consideration of alternatives

Gratz v. Bollinger (2003) undergraduate admission policy giving 20 points automatically to


racial minorities
Ct. Unconst. SS compelling goal is educational diversity
Fit no individualized assessment automatic 20 points based on race
not narrowly tailored

Parents Involved (2007) - School District allowed students to apply to any high school in the District. Since
certain schools often became oversubscribed when too many students chose them as their first choice, the
District used a system of tiebreakers to decide which students would be admitted to the popular schools. The
second most important tiebreaker was a racial factor intended to maintain racial diversity. At a particular
school either whites or non-whites could be favored for admission depending on which race would bring the
racial balance closer to the goal.
Ct. Uncost.
The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
racial diversity can be a compelling government interest in university admissions, but it ruled that "[t]he
present cases are not governed by Grutter."
no individualized consideration of students, and it employed a very limited notion of diversity ("white" and
"non-white").
"Racial balancing is not transformed from 'patently unconstitutional' to a compelling state interest simply by
relabeling it 'racial diversity.'"
. The District also failed to show that its objectives could not have been met with non-race-conscious means.
Kennedy concurrence - District's use of race - unconstitutional but stressed that public schools may
sometimes consider race to ensure equal educational opportunity.
Compelling inetret diversity; integration
Fit considere race-neutral alternatives

1) site selection

2) attendance zone

3) resources for special programs

4) recruitment

5) track data

Grutter race as a plus factor is ok higher education


Parents involves only race neutral k-12

Fisher v Texas I (2013)-


Grutter did not hold that good faith would forgive an impermissible consideration of race. Strict scrutiny did
not permit a court to accept a schools assertion that its admissions process used race in a permissible way
without a court giving close analysis to the evidence of how the process worked in practice. The higher
education dynamic did not change the narrow tailoring analysis of strict scrutiny applicable in other
contexts. The district court and court of appeals confined the strict scrutiny inquiry in too narrow a way by
deferring to the universitys good faith in its use of racial classifications. The court of appeals did not apply
the correct standard of strict scrutiny.
No deference s to means must be narrowly tailored
The reviewing court must - no workable race-neutral alternatives would produce
the educational benefits of diversity. If a nonracial approach could promote the
substantial interest about as well and at tolerable administrative expense, then
the university may not consider race.

Facially Neutral Laws: Disparate Impact and Discriminatory Purpose

Washington v. Davis (1976) literacy tests for policy officers disparate impact on blacks does
it violate the EP?
Ct. No - in order to violate EP both disparate impact + discriminatory purpose

Palmer v. Thompson (1971) desegregating city closed down 5 public swimming pools does it
violate EP?
Ct. No only discriminatory purpose but has to have discriminatory impact no right affected,
city could choose not to have swimming polls at all and all were equally affected
Personnel Administrator of Massachusetts v. Feeney (1979) preference for hiring veterans in
civil service jobs is facially neutral but has a desperate impact on women, does it violate EP?
Ct. No.
Even if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional
under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose
Discriminatory purpose implies more than intent as volition or intent as
awareness of consequences. It implies that the decisionmaker - 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

Village of Arlington Heights v. Metropolitan Housing Devlt Corp.(1977) denial of rezoning


for multiple family housing
What evidence to prove discriminatory intent?

1) Stark, clear pattern of discriminatory purposes (Yick Yo v Hopkins (1886) gave


everyone else permits for laundry but not to Chinese applicants)

2) Historical background context departure from normal procedures or rules

3) Legislative history documents, statements, public record


EQUAL PROTECTION: FACIALLY NEUTRAL LAWS

1. What is the classification? For a facially neutral law, plaintiff must show that the law nevertheless is a
racial classification (or gender or other category of heightened scrutiny) because it is a pretext for discrimination by
proving:

DISCRIMINATORY IMPACT AND DISCRIMINATORY PURPOSE


(Palmer) (Washington v. Davis)
Purpose = intent (Feeney)
Plaintiff must prove discriminatory purpose was a
motivating factor with (i) statistical proof of
clear pattern; (ii) history/sequence of events; (iii)
legislative record. Government can rebut with
evidence that discriminatory purpose was not a
motivating factor for the govt action, e.g., a race
neutral reason (Arlington Heights).

YES for BOTH IMPACT & PURPOSE= NO for Either IMPACT or PURPOSE=
Law classifies based on race (or gender, etc.) Law does not classify based on race (or gender, etc.)

2. What is the level of scrutiny?


Race = Strict Scrutiny Other classification=Rational Basis
(or gender=Intermediate Scrutiny, etc.)

3. Apply the level of scrutiny:

Race=Apply S.S. LAW FAILS Other=APPLY R.B. LAW SURVIVES


(because already found discriminatory purpose/animus) (because already found no
discriminatory purpose/animus,
under standard R.B. govt prevails
C. Classifications Based on Gender Intermediate Scrutiny Test
Substantially related to an important govt objective

1. Law should not reflect gender based stereotypes

2. Look for gender neutral alternatives

3. Look at actual goal

4. Burden on govt

. For a gender-based classification to withstand such scrutiny, it must serve


important governmental objectives, and the discriminatory means employed
must be substantially related to the achievement of those objectives. The State's
justification for such a classification must not rely on overbroad generalizations
about the different talents, capacities, or preferences of males and females

Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 724 (2003)
state
Miss. Univ. v. Hogan(1982) nursing school only for females, males allowed to audit
Ct Unconst.
Goal state argues affirmative action; court looks at ACTUAL PURPOSE = gender stereotypes
Fit men are allowed to audit

United States v. Virginia (1996) VMI male only


Ct. Uncost.
Goal 1) benefits from single sex education not proven as the reason for setting up the collage

2) Too adversarial for women have to change the whole program not fit for all men
either, some women and some men would do it

3) Cost alone and administrative inconvenience generally do not suffice

Michael M.; - statutory rape law of CApunshes only male offenders


Ct. Const goal protect against teenage pregnancy; fit such pregnancy are a greater burden on
girls, so they are disincentivized anyoway; gender neutral alternatives will not work according to
the court
Rostker v. Goldberg (1981) registration for draft applied only to men. Challenge on EP?
Ct. Const.
Goal facilities conscription; careful legislative consideration given
Fit; registration necessary for quick deployment of combat troops and women not eligible for
combat

Geduldig v. Aiello (1974) pregnancy related disability not include


Ct classification is facially neutral classifies between pregnant and non-pregnant persons
not a gender based classification

Nguyen v. INS (2001) different rules for citizenship depending on mother or father citizen
Goal actual parent prevent fraud; opportunity for a relationship; facial discrimiantion on
gender
Ct. based not on stereotype but on biological differences

D. Classifications Based on Citizenship Status (Alienage)


Legal Aliens strict scrutiny
Except

(1) Govt. function related RB

(2) Action by Congress or the President, ( but not federal administrative agencies) RB

Illegal Aliens RB

Except Plyer children, is it RB?

Foley v. Connelie; (1987) non-citizens cannot apply for police officers?


Ct. self-government, does not violate EP, RB

Ambach v. Norwick (1979) teachers who ca acquire citizenship but do not\


Ct Does not violate EP; self-government values and role models
Plyler v. Doe (children of illegal aliens) A revision to the Texas education laws in 1975 allowed the state
to withhold from local school districts state funds for educating children of illegal aliens
Rational basis wth bite
Texas' statutory classification cannot be sustained as furthering its interest
in the "preservation of the state's limited resources for the education of its
lawful residents." While the State might have an interest in mitigating
potentially harsh economic effects from an influx of illegal immigrants, the
Texas statute does not offer an effective method of dealing with the problem.
Even assuming that the net impact of illegal aliens on the economy is
negative, charging tuition to undocumented children constitutes an
ineffectual attempt to stem the tide of illegal immigration, at least when
compared with the alternative of prohibiting employment of illegal aliens. Nor
is there any merit to the suggestion that undocumented children are
appropriately singled out for exclusion because of the special burdens they
impose on the State's ability to provide high-quality public education. The
record does not show that exclusion of undocumented children is likely to
improve the overall quality of education in the State. Neither is there any
merit to the claim that undocumented children are appropriately singled out
because their unlawful presence within the United States renders them less
likely than other children to remain within the State's boundaries and to put
their education to productive social or political use within the State

VII. FUNDAMENTAL RIGHTS UNDER DUE PROCESS & EQUAL


PROTECTION
Path
1. Is there fundamental right?
If yes strict scrutiny
If no rational basis
2. Is the constitutional right infringed?
Direct and substantial interference? If not RB, if yes SS

3. Is there sufficient justification?


SS- compelling interest
RB- legitimate goal
4. Fit is the means sufficiently related to the purpose
SS least restrictive alternative; over and under exclusive
RB-rationally related

May use both EP and/or Due Process


EP --------s SS ------- DP

Banning contraceptives for under 18; age under EP does not get SS, but contraception is
fundamental right so SS
A. Incorporation the Application of the Bill of Rights to the States Due
Process Clause of the 14th amendment the liberty interest protected substantive
Due Process. The privileges and immunities Clause if the 14th A. not used for
incorporation and not used at all until 1999.

No automatic incorporation those rooted in the conscience and tradition 4


provisions of the Bill of Right remain unincorporated (Third A. right not to
have soldiers quartered in persons home never came to the Supreme Court;
Fifth A. right to a grand jury indictment in criminal cases, Seventh . right to
jury trial in civil cases; Eighth A. prohibition against excessive fine has not
come to the Supreme Court.

Whenever a provision of the Bill of Rights applies to the states it is through


the 14th. A. Due Process Clause!!!!

Fundamental rights rights protected under the constitution both enumerated


(Bill of Rights) and unremunerated

B. Economic Substantive Due Process


Lochner v. New York (1905) law capping hours on working in bakery infringes
Freedom of Contract. Heightened Scrutiny
Laissez-faire philosophy.
Holmess dissent.

West Coast Hotel v. Parrish (1937) validity of min. wage law in Wshington for
women and minors.
Ct. upheld. Rational basis review for economic legislation reasonably related
to legitimate purpose No fundamental right to freedom of contract!! Death of Lochner Era.
Defer to legislature to fix markets.

U.S. v. Carolene Products (1938) prohibiting shipment in intrastate commerce


of milk with compounds other than milk fat. Upheld!
Rational basis goal protection of public health and rational basis.

Ft4 heightened scrutiny for fundamental rights should not be trampled upon
by political process - Bill of Rights and some other rights (important for political
process)

Williamson v. Lee Optical of Oklahoma, Inc (1955) law prohibiting opticians


from fitting lenses without prescriptions (benefitting the ophthalmologists).
Upheld!
Rational basis may be hugely overinclusive, and abusive, but to correct this go
to the polls, not the courts

C. Privacy: Reproductive Rights right to procreate; right to purchase and use


contraceptives; right to abortion
1. right to procreate;
Skinner v. Oklahoma (1942) Law providing for sterilization of habitual criminal
convicted of 3 or more crime of moral turpitude violating the EP clause
procreation is a fundamental right and line drawn between embezzlement and
larceny is arbitrary

2. right to purchase and use contraceptives;

Griswold v. Connecticut (1965) criminalizes use drugs, instruments for the


purpose of contraception
Douglas the penumbra of the Bill of rights zone of privacy, the privacy of the
marital bedroom
Goldberg 9th A. rights retained by the people which ones tradition and
consciousness; how general of specific you describe the relevant traditions
determines the whether the right falls in or out
Harlan Substantive Due Process (even though we hassve rejected Lochner)
Eisenstadt v. Baird (1970) ban on contraceptives for use by unmarried people
Court the marital couple is an association of two individuals the individuals
right whether to beget a child is protected

3. Right to abortion scope of right, importance of stare deciise

Roe v. Wade (1973) Texas abortion law

Fundamental right Due Process Clause SS

Right to decide + bodily integritys

Ct. trimester framework

1. First trimester state my not regulate, no state interest in fetal life before
viability; no interest in maternal health abortion safer than childbirth

2. Second trimester health and safety of mother

3. Third trimester post-violability, state has compelling interest in potential


life my ban abortion unless health and life of mother

Viability - the line drawn


Rehnquists dissent originalist argument Text and History do not support the protection of
fundamental right to abortion
Planned Parenthood v Casey (1992)
Pennsylvania law 1) biased informed consent; 2) waiting period; 3) spousal notice; 4) reporting
requirements; 5) parental consent for minors
Ct. Only spousal notice was struck down;

1. When will precedents be overturned?

A. Is the rule unworkable?

B. Will there be serious damage to those who rely on the rule?

C. Is it doctrinal anachronism discounted by society

D. Did factual premises radically change?

No trimester framework
Line is viability post viability state can regulate and ban, with exceptions for liwf and
health of mother
Before viability state can regulate for health of mother and life of fetus as long as no undue
burden when regulation has purpose or effect of placing substantial obstacle in the path of
the womans choice small obstacles,
incidental increase of expense is not;
court is actually looking at effects
promotion of childbirth and promotion of womens helth- - permitted
7thc circuit heightened scrutiny balancing test govt. burden to how promotion of goal,
plaintiff burden to show obstacle
2nd Circuit rational basis, only complete ban I uncost.

Health exception medical uncertainty defer to legislature

Gonzales v. Garhart (2007)


Federal ban on partial birth abortion under the Commerce Clause
Ct: upheld
Distinguish from Stenberg findings it is not medical necessitated; statutory languge is not
vague
Goal respect for human life, moral principles
Medical uncertainty about health exception leave it legislature; leave it as applied

C. Privacy: Medical Care Decisions


Cruzan v. Director, Missouri Department of Health (1990) prents wih to discontinue life
support system. State trial authorized termination, agreed she wanted that, but State Supreme
Court reversed, because as a matter of law clear and convincing evidence that Nancy would
have wished to terminate treatment. Is the standard constitutional under the Due Process Clause?
Ct. Majority assume there is right to refuse medical treatment by competent adults
(OConner - concurrence and the dissent yes, there is such right)

Why? Grounded in Bodily integrity and decisional autonomy

Level of Scrutiny? left open


When incompetent and family members assert the right it is a constitutional standard to require
clear and convincing evidence abuse concerns, money, error; clear and convincing evidence
standard is a high standard

Vaco v. Quill (1997)


RB for ban on assisted suicide equal protection challenge
Causation is different natural cause vs killing
Intent is different

Glucksberg (1997) no right to assisted suicide


Physician assisted suicide ban - upheld
Ct. right to assisted suicide? No
Goals protecting vulnerable groups, slippery slope to involuntary euthanasia, preserve life
FR is it?
1. Carefully described define very specifically rather than generally nd
then ask

2. Is it Rooted in history and tradition and

3. implicit in the concept of ordered liberty

Concurrence fatal palliative care should not be prohibited


Dissent: Right to die with dignity

D. Right to Marriage
Loving v. Virginia (1967) Virginia interracial marriage ban
Marriage I fundamental rights Skinner procreation
Ban is uncontitutional

Zblocki v. Redhail (1978) statute - if a person has minor child and you owe child support you
have to have proof that you paid and evidence child will not be burden on the state; did not
provide for an exception for the truly indigent
FR to marry; significantly infringed direct and substantial interference, (not every regulation
amounts to a significant infringement, if not rational basis) ; SS should be applied: goal
substantial, but mean not narrowly tailored, there are other less restrictive ways like garnering
wages

Lawrance v. Texas (2003) Texas ban on homosexual sodomy uncont. Under the Due Process
Clause
Majority, Kennedy
Overrule Bowers v. Chadwick Bowers wrongly framed it as right to engage in homosexual
sodomy and held no such FR
Kennedy - FR to intimate association or consensual private adult sex (not clearly framed)
History and tradition - history and tradition are the starting point, but not in all cases the
ending point in substantive Due Process
Morality Our Obligation is to define the liberty for all, not to mandate our own moral code
(How I then this different from Gonzlez v Berhrard, where it was moral outrage tht motivated the
law)

OConner want to use EP moral disapproval of group, bare animus against politically weak
groups

Obergefell v. Hodges (2015)


Kennedy majority: the reason why we have FR right to marry support them, not the
traditional definition of marriage

Robertss dissent: this I changing the definition of marriage, leave it to the states; judicial
overreach; what about multiple marriages? How can state ban polygaamy
E. Right to Bear Arms

DC v. Heller (2008)

Enumerated right
RB with bite? cannot survive under any scrutiny
Narrow reading - It is in your home, cant have an outright ban, but all kinds of other
regulation are OK

Text
Scalia prefatory clause, does not limit or expand the operative clause
Srevens dissent about state militias, militia men in the several states

History
Scalia self-defense of home
Stevens

Precedent
200 years of precedent with no such right
Scalia it w not on point the precedent

Not clear on standard of review may be rational basis

McDonald v. City in Chicaago (2010)


Second A . applied to the states via the Due Process Clauses
F. Right to Vote
Federal Const. right to vote for certain federal offices, but when the state does provide for
voting, everybody has to right to access vote equally always through the lenses of EP, and
snice it is a FR we apply SS

Harper v. Virginia State Board of Elections (1969) poll taxes ($1.50 as a prerequisite to vote)
violate the EP Clause
Right to vote - FR, therefore any classification that burdens it is subject to Strict Scrutiny
Wealth, like color and race irrelevant to ones ability to participate intelligently in the electoral
process
Invidious discrimination there are less restrictive alternatives

Literacy test constitutional ability to read and write relevant to exercise of franchise, although
subsequently outlawed by federal statutes. Court upheld the federal statutes in Katzenbach v.
Morgan, (1966) valid exercise of section 5 of the 14th A. power

Voter ID state has a compelling interest in preventing voter fraud

Reynolds v Sims (1964) malapportionment in state elections rural areas dramatically more
voting power than urban areas violates the EP clause
Legislators represent people, not trees or acres.
One person, one vote! And democratic process will not resolve the problem, because political
incumbents have a vested interest in the system as it is.
Federal analogy with the Senate does apply the state were sovereigns, political compromise,
not the same with cities and counties they were never sovereign and were created by the state

One person, one vote applies to the state elections and the House of Representatives, but
not to the Senate

Bush v. Gore (2000) Does the Florida State Supreme Court order standard intent of the
voter for the manual recount violate EP? Yes

Request for injunction was granted to Bush and stopped the hand recount 5-4 decision on
Heard the case on the merits
Ct. Majority no standard, because different counties different standards; arbitrary;
Remedy Ct reverse the Florida S. C

Dissent remand for a clearer standard

VIII. FIRST AMENDMENT FREEDOM OF EXPRESSION


A. Freedom of Speech

Why protect?

1. self-governance

2. discovering truth (Holmes and the marketplace of ideas; Mills)

3. promoting tolerance

4. advancing autonomy

Content neutral intermediate scrutiny advance interest unrelated to the suppression of


free speech and does not burden substantially more speech than necessary

Content-based (regulate on the basis of view-point or subject matter) strict scrutiny

Unconstitutional for vagueness or overbreadth statute is off the book

o Vague if a reasonable person cannot tell what speech is prohibited and what is
permitted (unduly vague law violated Due Process, whether or not speech I
regulated) powerful tool, because it allows even those whose speech could
lawfully be prohibited under the law to mount a challenge!!!
Fairness

Risk of selective enforcement

Chill constitutionally protected speech threat of sanction can deter


protected speech

o Overbroad unconstitutionally overbroad if it regulates substantially more


speech than the Constitution allows; overbreadth must be real and substantial
judged in relation to the statutes legitimate sweep; can be challenge even by
person to whom the law could constitutionally be applied, arguing that it would be
unconstitutionally be applied to others;

Statute may be given narrow construction to avoid a declaration of


unconstitutionality

Prior restraints are constitutionally suspect

Time, place end manner restrictions content neutral

o valid if justified without regard to the speech content,

o does not burden substantially more speech than necessary but does not have to
be the least restrictive alternative)

o and serve a significant govt. interest, and

o leave open ample alternative channel for communiction of the information

Less protected speech incitement, obscenity

Prior restraints are very suspect

Turner Broadcasting v. FCC (1994) constitutionality of the must-carry provisions requiring


operator to carry a number of local broadcast stations? Upheld
Ct. a content-neutral regulation. The inquiry is whether the regulation was adopted because of
the govt. Agreement or disagreement with the message? Actual purpose I required, when law
discriminates on content on it face; not necessary to how uch purpose in all cases; the content
the communicative impact
Dissent content based public affairs, diversity of view-point, education
Boos v. Harry (1988) prohibition of display of signs within 500 ft of a foreign embassy
tending to bring foreign government into public disrepute unconstitutional
Ct. content baed restriction in public forum SS compelling interest dignity of foreign
officials ?public officials in the US should tolerate offensive speech to provide breathing space
to First A. not persuaded that a different rules should apply to foreign officials
Hill v. Colorado (2000) Colorado statute prohibiting knowingly approaching unwilling
patient on the way to the health clinic to counsel, educate, hand pamphlets upheld
Ct. - Content neutral: place, time and manner regulation, not based on disagreement with the
message applies equally to all viewpoint, no reference to content ,goal to protect access and
privacy narrowly tailored; protection of offensive speech does not always embrace messages
that are so intrusive that the unwilling audience cannot avoid them
Dissent: it is content based directed at opponent of abortion
Public forum reasonable time, place, or manner restrictions serving an important
government objective and leaving open adequate alternative place for speech
Retracted public forum

Compelled speech

West Virginia State Board of education v. Barnette (1943)


Expulsion from school for refusing to say the Pledge of Allegiance and lute the flag uncont
Freedom of speech is related to freedom of thought - tolerance and autonomy
Fundamental rights may not be submitted to the vote
State cannot force private speaker to speak the government messages

Unconstitutional conditional doctrine govt. cannot condition the receipt of a benefit


or deny benefit on the condition that a person relinquish fundamental rights

Government as a speaker

o Is it government speech? Govt can speak anyhow. May be view point based

Is it private speech funded by government?

May be content based, but not view-point based

Rust v. Sullivan (1991) Title X Funds may not be used by the recipient doctors for abortion
related services such as counselling, information, etc upheld
Ct. govt may choose the type of subject matter subsidized; doctors are free to speak about
abortion outside of the title X project
Later in Velazquez characterized as govt. speech

Government funding private speech

o Can make subject matter distinction

o Must remain view-point neutral

National Endowment for the Arts v. Finley (1998)


Decency standard for funding of the NEA upheld
Ct. not mandatory requirement; content-based distinctions are inevitable in grant
distribution; facial challenges are posing great burden on the challenger left of open to an
as applied; govt may choose to fund one activity to the exclusion of the others
If subsidies are manipulated to achieve a coercive effect r drive certain viewpoints out of the
market place

Spending programs may not impose conditions that limit First Amendment
activities
of fund recipients outside of the scope of the spending program itself.
While the government could prohibit the use of federal funds to advocate for
or support
abortion [Rust v. Sullivan, supra], it could not require recipients of federal
funds
given to organizations to combat HIV/AIDS to agree in their funding
documents that
they oppose prostitution. [Agency for International Development v. Alliance
for Open Society International, Inc., 133 S. Ct. 2321 (2013)]

Legal Service corp. v. Velazquez (2001)


Distinguish from Rust Rust was the govt. speech
Govt may be view point based, accountable on elections
Here govt Is not speaking lawyer is suing the govt. arguing again the government, private
speech; govt distort judicial process

Symbolic Speech/expressive conduct


When is Conduct Communicative?

1) Intent to communicate a particularized message

2) Substantial likelihood that the message would be understood by those


receiving it

United States v OBrian (1968) draft card burning to protest the Vietnam war, convicted for
violating a federal statute prohibiting willful destruction and mutilation of a registration
certificate upheld, no violation of the 1st A.
Ct. Purpose unrelated to suppression of expression , Ct should not look after an illicit
motive by the legislature

Is it constitutional on its face and as applied?


Ct. speech and nonspeech elements are combined in the same course of conduct, a
sufficiently important governmental interest in regulating the nonspeech element can justify
incidental limitations on First Amendment freedoms.

government regulation is sufficiently justified ? intermediate scrutiny like the time-place-


and-manner test
1. if it is within the constitutional power of the Government;

2. if the governmental interest is unrelated to the suppression of free expression;

3. if it furthers an important or substantial governmental interest; and

4. if the incidental restriction on alleged First Amendment freedoms is no greater than is


essential to the furtherance of that interest.

Texas v Johnson (1989) flag burning


Pure speech speech and nonspeech mixed non-speech

1) Intent to communicate a particularized message subjective

2) Substantial likelihood that the message would be understood by those


receiving it - objective

Is it directed at the expressive element in the conduct?


If yes, Then content based SS
If not related to suppression of the expression, then regulation of conduct + then the OBrian test

Ct. directed at the message and does not survive strict scrutiny

Buckley v Valeo (1976) campaign financing


Spending money for a campaign is speech- regulation of campaign financing SS
Contributions vs expenditures
Govt. can limit contributions to a candidate prevent corruption or appearance of corruption
No limits on independent expenditures how much the candidate spends on her own campaign
led to PACs run separately from the campaign

Austin govt can restrict corporate expenditures, limit distortions on the market place
Citizens untied v. Federal election Commission (2010) read it!
Spending money as expression effects the quantity and depth of issues covered direct
regulation of political speech
Ct. Austin overruled corporations may spend as much as they want do not have to go trough
pacs?
Can limit direct contributions to an individual candidate only both individuals and corporations;

Less or unprotected speech

True threat - black

Incitement to illegal activity

Brandenburg v. Ohio (1969)


1)Intended to incite or produce 2) immanent lawless action and 3) likely to incite or produce
such action
Advocacy for illegal activity is protected, incitement is not
Very fact specific

Indecent speech profanity, sexually oriented speech


Cohen v. California (1971) fuck the draft jacket in courtroom
Unprotected speech
Obscenity
Fighting words such words that when addressed to an ordinary person are so offensive
as to provoke a violent reaction
Captive audience only when significant privacy interest invaded or one is powerless to
avoid the message

Ct none of the above, those offended could avert their eyes


Govt. May not excise the expletive from discourse consistently with the Constitution slippery
slope which words, cannot sanitize expression; banning words may b used to suppress ideas;
words can not only cognitive but emotive meaning as well

FCC v. Pacifica Foundation (1978) GCs filthy words show aired on the radio
Medium by medium approach
Low value speech, invasive; once harm is done - too late to turn off

Internet different more protected under First Amendment affirmative steps; filters by parents;
warnings protected

Students speech
Tinker v Des Moines students wearing black armed bands to school to protest Vietnam War and
get punished violation of the 1st A.
Ct. only when school meets the burden of proving substantial disruption of school
environment

Fraser the graphic sexual metaphor at student assembly


Ct vulgar or sexually explicit language may be limited

Kuhlmeier school-sponsored newspaper and student experiences with pregnancy


Ct this is school speech, so does not have to be view-point neutral

Morse v. Frederick (2007) Bong Hits 4 Jesus


School sponsored event, although outside the school, approved and supervised what are the
outer boundaries?
May suppress speech that can reasonably be interpreted to promote illegal drug use but cannot
suppress political speech about the wisdom of drug policy
B. Freedom of Association why protect? Free speech and freedom of assembly
and freedom to petition the government correlate with freedom of association

1. Govt may prohibit membership only if a person actively affiliated with a


group, knowing of its illegal activities with the intent to further those
activities

2. Govt may demand disclosure f membership, where disclosure will chill


association, only if it passes strict scrutiny

3. Govt may intrude into an association when it passes SS govt interest in


anti-discrimination vs freedom of association

Roberts v. United States Jaycees (1984) by laws od organization excluding women and men
above 35 as regular members, admitting them as associates with limited rights; mission to foster
young men civics organizations; two local chapters started including women as regular
members, central organization threatened to revoke their charters and local chapters argue that
this violated Minnesota HR Act, Court of Appeals held requiring the organization to admit
women violated their right to freedom of association, Supreme court reversed.
Ct: Intimate association vs expressive association
Intimate association enjoys utmost protection - SS for infringement; Govt cannot enforce anti-
discrimination laws
Family and friends associations
Factors closeness, selectivity, small numbers, seclusion from others (choices in family
and friends)
Expressive association enjoys protection together for some 1st A. purposes (not for purely
economic purposes- not protected by the 1st A
Compelling state interest
Unrelated to suppression of ideas!!!!
Cannot be achieved through means significantly less restrictive Strict Scrutiny
If core purpose is discriminative govt cannot force it to change its core message

Business Association govt may regulate and enforce anti-discrimination law

Ct. not an intimate association indiscriminate admission except for older men and women,
large group; ; HRA burdens expressive association but interest is compelling and burden is
very small on the expressive purposes (the records, the by laws allowing women as associates)

Boys Scouts v. Dale (2000) openly gay scouts leader, Boy Scouts revoke his membership

1. Does the group engage in expressive association?

2. Does govt. significantly affect the ability to advocate public or private viewpoints?

3. Does it violate the 1st A.? SS


Ct yes, disapproval of the message is impermissible under the 1st A.
Will forcing the Boy Scouts to accept gay member would impede their message? clean and
morally straight Ct - deferential to the Boy Scouts
Dissent says should not be so differential, look at the materials

Rumsfeld v. FAIR (2006) Solomon Amendment if law schools do not give equal access to
military recruiters they would loose certain federal funds

Issues: Can Congress pass this law yes, spending power; but Congress could have used the
power for raise and support money and regulate directly

Issues: Unconstitutional conditions? No, because they Congress can regulate directly because
there is no violation if free speech or freedom of association

Issues: Compelled speech? No

Issues; Expressive Conduct? No

Issues; Expressive Association? No. This is not about membership

No that deferential. Back to Jacees the court will enquiry into the message and how it is
burdened, but Dale is still alive so use on exam

Will the regulation impede the groups message? Defer or not to the group?

Jacees not deferential to the groups, lets examine what the message is; only groups openly
discriminative are outside the applicability of anti-discrimination law
Dale court derefs to the message stated in litigation; big hole into anti-discrimiantionlaw
FAIR seems to return to Jacees, and limit Dale to its facts?

IX. FIRST AMENDMENT FREEDOM OF RELIGION


A. Free Exercise Clause

What is religion? - Courts look into the sincerity of the belief


Religiously motivated conduct

Employment Division v. Smith (1990)


Ct. the right of free exercise does not relieve an individual of the obligation to comply with a
valid and neutral law of general applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or proscribes). rational basis for such a law
(groups should use political process for exemptions)

Hybrid claim

Intentional targeting of religion not neutral and of general applicability - SS


Text
Adverse impact
Fit-over/under inclusive
Lukumi Babalu Aye v. City of Hialeah (1993) law preventing ritual animal sacrifice, clear that
it was aimed at the Santeria religion text, adverse impact, fit between the purpose and the
means targeting a specific religion- SS

RFRA - City of Bouerne beyond Congress authority as to the states, but valid as to federal
acts the Sherbet test has been revived for the federal government

B. Establishment Clause
Theories
Wall of Separation
Neutrality netral b/n rel and b/n rel and atheism
Accommodation - no coercion and establishment of official church

The Lemon Test


Lemon v. Kurzam (1971)

1. Secular purpose

2. Primary effect not to advance religion

3. No excessive gov. entanglement with religion

McCreary County v. ACLU of Kentucky (2005)


10 Commandments Court House display violates the Establishment Clause
Secular purpose has to be genuine and not a sham

Van Orden v. Perry (2005) monument on Texas Capitol Hill, been then for 40 years, among other
monuments in a large physical setting
Ct. distinguishable from Mc Creary Breyer if its not divisive, and not overtly religious
purpose ineed not purge public s[ace from all religion this would be more divisive and hostile
to religion

Incorporation
Reverse incorporation

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