04.10.05-ConLaw-Meyler zucklin 2

04.10.05-ConLaw-Meyler zucklin 2 - CONSTITUTIONAL LAW...

Info iconThis preview shows page 1. Sign up to view the full content.

View Full Document Right Arrow Icon
This is the end of the preview. Sign up to access the rest of the document.

Unformatted text preview: CONSTITUTIONAL LAW PROFESSOR MEYLER FALL 2004 I. Judicial Review A. Origins of Judicial Review 1. Marbury v. Madison p. 1 Facts: Jefferson defeated Adams for president. Before Jefferson was inaugurated, Federalist Congress passed the Circuit Court Act (doubled number of federal judges) and the Organic Act (42 justices of the peace). Adams commissioned judges and SecState Marshall sealed them, but Jefferson came into power the next day and had his SecState Madison not deliver them. Marbury was one of the appointed justices of the peace who wanted his job. Sought a writ of mandamus to compel Madison to deliver the appointment. These writs were allowed under Judiciary Act of 1789. Issue: Is Supreme Court able to review Acts of Congress and void those it thinks violates the Constitution? Held: Yes. Marshall decides in favor of Madison. Says Court does not have the power to issue writs of mandamus in this case. Writs of mandamus are allowed under the Judiciary Act, but Supreme Court declares it does not have the power because the Judiciary Act gave it original jurisdiction in an area where the Constitution gave it appellate jurisdiction. Therefore, Judiciary Act`s grant of original mandamus jurisdiction is void under the Constitution. a. Court as Final Arbiter 1. Jefferson: the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislative and executive also in their spheres, would make the judiciary a despotic branch. 2. Jackson: the opinion of the judges has no more authority over congress than the opinion of congress has over the judges, and on that point the president is independent of both. 1 3. Lincoln: the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the supreme court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. b. Political Question Doctrine 1. Not established here, but alluded to. 2. Two times listed here when Court should not interfere: a. Departmental discretion of a branch (veto, pardon, etc.) b. Political Question Doctrine 2. United States v. Carolene Products p. 298 Court held that Congress may prohibit the interstate shipment of food products that it deems injurious to the public health. Rationality Review Footnote 4 of the opinion sets forth principles regarding this varying presumption of constitutionality. It noted that the scope of the presumption may be narrower when: (1) Legislation appears on its face to be within a specific prohibition of the Constitution, such as those in the Bill of Rights/14th Amendment. (2) Legislation may restrict the political process that could lead to repeal of undesirable legislation. (3) Legislation directed at particular discrete and insular and minorities. Balkin (p.299): certain groups are shut out of the democratic process. They are insider-outsiders persons subject to the power of the political community yet excluded from participation within it. Goal of Carolene Products is to restore them to their rightful place within the polity through judicial supervision of the results of the democratic process. Ackerman (300): The Carolene solution is to seize the high ground of democratic theory and establish that the challenged legislation was produced by a profoundly defective process. By demonstrating that the legislative solution itself resulted from an undemocratic procedure, a Carolene court hopes to reverse the spin of the ocuntermajoritarian difficulty. Ackerman (301): What about anonymous and diffuse minorities? Ely Democracy and Distrust (p. 77): I have suggested that both Carolene Products themes are concerned with participation: they ask us to focus no ton 2 whether this or that substantive value is unusually important or fundamental, but rather on whether the opportunity to participate either in the political processes by which values are appropriately identified and accommodated, or in the accommodation those process have reached, has been unduly constricted. 3. Cooper v. Aaron p.15 Facts: After Brown v. Board of Education, Governor of Arkansas contends that state does not need to follow Supreme Court`s ruling because it is not bound by the decision, and continues to segregate schools. Issue: Is everyone bound by the decisions of the Supreme Court, or just the original litigants in the case decided? Held: Everyone is bound by the decisions of the Court (to further show this, all justices signed the opinion, something very rare). The federal judiciary is supreme in the exposition of the law of the constitution, and that principle has been ever since been respected by this court and the country as a permanent and indispensable feature of our constitutional system. Court here announces a general norm of wide applicability. a. Binding of Judicial Decisions 1. Tribe: But the Court need not be understood to say anything more than that Brown and its progency, including the case at hand, are binding in the same way that nay other judicial decision is binding, so that state officials who interfere with enforcement of a judgment, or act to undermine its goals, are acting unlawfully. 2. Tribe: On this view, Brown need not be seen as itself part` of the Constitution, but as a constitutional judgment, an exercise in judicial power entitled to respect under the Supremacy Clause not because it is the Constitution but because it is an exercise of power under the Constitution just as the Court`s interpretation of a federal statute, is binding. 3. Paulsen: Just as Marbury instructs that an Act of Congress contrary to the Constitution should not be given effect by courts when exercising their power to decide cases, so a judicial decree contrary to the Constitution arguably should not be given effect by 3 the executive when exercising the power to take care that the laws be faithfully executed. 4. Bush v. Gore Facts: Bush and Gore election had to be decided in the state Court of Florida, and then taken up by the Supreme Court. Issue: Should the Court be involved in such politically sensitive matters? Dis: Breyer. Despite the reminders that this case involves an election for the President of the United States, no preeminent legal concern, or practical concern related to legal questions, required this Court to hear this case. In this highly politicized matter, the appearance of a split decision runs the risk of undermining the public`s confidence in the Court itself. The most important thing we do is not doing. a. How hurts the Court 1. Split decisions undermine confidence in the Court 2. Party line votes undermine confidence in the Court 3. Not precedental, applied only to this case. II. Foreign Sources of Law III. Limitations on Judicial Review A. Political Question Doctrine 1. Reasons for Political Question Doctrine a. Textual demonstrable constitutional commitment of the issue to a coordinate branch. b. Lack of judicially discoverable and manageable standards for resolving the issue c. Impossibility of deciding without an initial policy determination or a kind clearly not for judicial discretion d. Impossibility of a Court`s undertaking independent resolution without expressing a lack of the respect due to coordinate branches of the government e. An unusual need for unquestioning adherence to a political decision already made 4 f. The potential of embarrassment from pronouncements of various departments on one question 2. Nixon v. United States p. 25 Facts: Nixon was a federal judge sentenced to prison, but refused to resign from his judicial office. Congress impeached him, and Senate held a trial, but appointed a committee to hold evidentiary hearings. Nixon sued on grounds that the Senate`s failure to participate in the evidentiary hearings as a full body violated the Senate`s constitutional authority to try impeachments May the Court review the Congress`s impeachment procedures? No. There is a textually demonstrable Constitutional commitment to the legislature. Constitution clearly gives Senate exclusive authority over impeachments -- Senate shall have the sole Power to try all impeachments. Judicial review of the Senate`s procedures would be inconsistent with our system of checks and balances. Need for finality and the difficulty in fashioning relief also demonstrate why judicial review is inappropriate. Con: Souter: Judicial review would be appropriate if the Senate were to act so as to seriously threaten the integrity of the results, such as by convicting based on a coin toss. Issue: Held: 3. Pacific States Telephone v. Oregon p. 35 Guarantee Clause: Republican Form of Government Facts: Oregon enacted tax through an initiative. Plaintiff says initiative violated Art IV Sec. 4 US shall guarantee to every state a Republican Form of Government. Plaintiff says the initiative process made in a democratic government, not a republican one. Does the Court have the power to decide what government is the established one of a state? No. It rests with Congress to decide what government is the established on in a State. Issue: Held: 5 a. The Guarantee Clause is not primarily about guaranteeing a particular structure of government instates or even about protecting state governments from federal encroachments. Instead, it is meant to protect the basic individual right of political participation, most notably the right to vote and the right to choose public officeholders. 4. Goldwater v. Carter p. 38 Facts: Plaintiff brings claim against President for terminating a treaty with Taiwan without congressional approval. Does the Court have the power to adjudicate a dispute between Congress and the President. No. Matter is to be solved by political standards. A dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority. Brennan: The issue of decision-making authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts. Issue: Held: Diss: B. Case or Controversy Requirement -- Standing 1. Allen v. Wright p. 1507 Lack of Direct Personal Injury Facts: Parents of black children brought claim against the IRS for not adopting sufficient standards and procedures to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools. Does a private party have standing to force government to comply with the law when that person can show no direct person injury resulting from the failure of the government? No. Must have some direct personal injury. Art. III requires litigant to have standing to invoke power of court. Standing doctrine embraces several judicially self-imposed limits. Constitutional Component: Issue: Held: 6 a. Distinct and palpable injury and not abstract or conjectural or hypothetical b. Injury must be fairly traceable to the challenged action c. Relief from injury must be likely to follow favorable decision Prudential Component: a. Can not raise another person`s legal rights b. Cannot adjudicate generalized grievances more appropriately addressed in the representative branches c. Plaintiff`s complaint must fall within the one of interests protected by the law invoked Dissent: (Brennan) Plaintiff`s injury is clear and the causal connection is sufficient. (Stevens) Standing requirement measures the plaintiff's stake in the outcome, not whether or not the Court is authorized to adjudicate the matter. Dissent: 1. United States v. Students Challenging Regulatory Agency Procedures (SCRAP) p. 1514 Facts: Students challenged failure of ICC to prepare an environmental impact statement before declining to suspend a surcharge on railroad freight rates. Do non-economic injuries satisfy the Constitutional requirement? Yes, provided they are specific enough. In SCRAP, students alleged that higher rail rates would increase the cost of recycled products and thus occasion the need to use more natural resources to produces such goods, some of which resources might e taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area Footnote: SCRAP`s expansive expression of what would suffice for standing has never since been emulated by this Court. 2. Friends of the Earth, Inc. v. Laidlaw Environmental Services p.1515 Issue: Held: 7 Facts: Citizen suit provisions of the Clean Water Act were questioned because the defendant`s illegal actions had not been proved to result in any health risk or environmental harm. What kind of non-economic injuries must be shown? Citizen suit had standing because the relevant injury is not injury to the environment but injury to the plaintiff` and that the plaintiffs suffered injury from their reasonable concerns` that pollution had damaged land. Issue: Held: 3. Heckler v. Mathews p. 1515 Injury and Equal Protection Clause Facts: Plaintiff was denied social security benefits because of his gender. Is discrimination itself a non-economic injury, regardless of the benefit being withheld from the discriminated party? Yes. Discrimination itself can cause serious non-economic injuries. The appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class. [RELIEF ISSUE] 4. Warth V. Seldin p. 1515 Causation Facts: Plaintiffs alleged town zoning ordinances violated the Constitution zoning laws prevented construction of low-income housing. Is the chance that a change in the laws will result in relief for the plaintiffs enough to give standing to the plaintiffs? No. It is too uncertain that absent the defendants` restrictive zoning practices, there is a substantial probability that plaintiffs would have been able to purchase or lease homes. Issue: Held: Issue: Held: 5. Simon v. Eastern Kentucky Welfare Rights p. 1516 8 Facts: Plaintiffs challenged IRS Revenue Ruling eliminating a requirement that non-profit hospital provide some care for indigents. Is the chance that a change in the laws will result in relief for the plaintiffs enough to give standing the plaintiffs? No. Purely speculative whether or not the denial of access to hospitals results from IRS Ruling, or that a return to the old ruling would result in a return of hospital access. Issue: Held: 6. Regents of the University of California v. Bakke p. 1516 Facts: Plaintiff was denied admission to medical school because of special admissions program for minority students. Does standing require that the plaintiff show that an invalidation of the disputed rule would have resulted in relief? No. Injury consists in the deprivation, on the grounds of race, of the change to compete for every place in the entering class. Injury was not whether or not he actually would have been admitted. The challenger to an affirmative action set-aside program need not show that, but for the program, the challenger would have received a concrete benefit. The injury in fact in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of [a barrier that makes it more difficult for members of a group to obtain a benefit], not the ultimate inability to obtain the benefit`. 7. Los Angeles v. Lyons p. 1517 Redressability Facts: Plaintiff had been chocked to unconsciousness by the LAPD. Sued for injunctive relief. Can an injury in the past give standing against an injunction against future conduct? No. It is too speculative whether or not Lyons would be subject to a choke hold in the future. Although Lyons had 9 Issue: Held: Issue: Held: suffered an injury in the past, that injury could not be redressed by an injunction against future police conduct. 8. Powers v. Ohio p. 1517 Prohibition against asserting third parties rights Facts: Prosecutor used solely race in eliminating jurors for a murder trial. Plaintiff brought action against for this behavior on behalf of the jurors who could no longer be found/not interested in the case/etc. One of the Prudential Limits on the Exercise of Federal Jurisdiction Litigant must have suffered an injury in fact` thus giving him or her a sufficiently concrete interest` in the outcome of the issue in dispute 2. Litigant must have a close relation to the third party 3. There must exist some hindrance to the third party`s ability to protect his or her own interests 1. C. Taxpayer Standing and other Status-based Standing Issues 1. Frothingham v. Mellon p. 1518 Facts: Plaintiff said that federal statute providing funds to states undertaking programs to reduce maternal and infant mortality exceeded Congress` power, and that the effect of the appropriations complained of will be to increase the burden of future taxation and thereby take her property without due process of law. Is standing as a taxpayer enough to challenge a Congressional appropriation on the ground that it is illegal? No. Plaintiff`s interest as a federal taxpayer is comparatively minute (unlike a municipal taxpayer). Effect the Act will have on future taxation is too remote to afford a basis for exercise of equitable powers. To permit one taxpayer to litigate a challenge to a law would be to permit any taxpayer to challenge any or all appropriation acts. 2. Flast v. Cohen p. 1518 -- Dual Nexus Standard Issue: Held: 10 Facts: Plaintiff sought to stop federal government from spending money to finance instruction and buy books for religious schools. May a taxpayer challenge congressional appropriations when it violates constitutional provisions which seek to restrict the exercise of congressional appropriations? Yes. Dual nexus standard. First nexus: Link between being a taxpayer and the legislation being enacted [must be an appropriation of money] Second nexus: Link between status of a taxpayer and the nature of the infringement [Constitutional Clause set to limit spending only one so far is the Establishment Clause] In light of its historic purposes, the Establishment Clause operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending powers` Issue: Held: Dissent: (Harlan) A plaintiff`s interest in the outcome of a suit in which he challenges the constitutionality of a federal expenditure is not made greater or smaller by the nature of the program being attacked or the constitutional provision under which the attack is mounted 3. Valley Forge Christian College v. Americans United For Separation of Church and State, Inc. p. 1520 Facts: Plaintiffs sought to challenge, as a violation of the establishment clause, the giving of surplus federal property a church college. Is the fact of citizenship sufficient to give standing to a governmental action that allegedly violates the Constitution? No. Plaintiff cannot acquire standing by merely asserting a right to particular kind of government conduct that the government allegedly violated. Plaintiff has not alleged any injury. To grant standing in this case would be to remove the case or controversy requirement from the Constitution. 11 Issue: Held: 4. United States vs. Richardson p. 1521 Facts: Plaintiff challenges legislation which allowed the CIA to withhold from the public detailed information about its expenditures on the grounds that it violates the Accounts Clause of the Constitution. Is taxpayer standing enough to challenge a government action? No. Challenge did not address the taxing and spending power of Congress, but statutes regulating the CIA. The regulations don`t cost any money, so they don`t come under the taxing and spending power of Congress. Does not meet first nexus. 5. Schlesinger v. Reservists Committee to Stop the War p. 1521 Facts: Plaintiff challenges executive branch practice in allowing Members of Congress to maintain status in the Reserves (military) under the Incompatibility Clause of Article 1. Is taxpayer standing enough to challenge a governmental action? No. The proposition that all constitutional provisions are enforceable by any citizen simply because citizens are the ultimate beneficiaries of those provisions has no boundaries. Although they claim that the Constitution ahs been violated, they fail to identify any personal injury suffered by the plaintiffs as a consequence presumably produced by observation of conduct with which one disagrees. 6. FEC v. Atkins p. 1523 Facts: Plaintiff challenges determination of Federal Elections Commission that AIPAC was not a political committee and was thus not required to make disclosures. FEC responds saying that the lawsuit offers only a generalized grievance and so is inadequate for standing? Issue: Held: Issue: Held: 12 Issue: Held: Is a widely shared injury adequate grounds for standing? Yes. Despite being widely shared, injury was concrete and substantial. Scalia: If the effect is undifferentiated and common to all members of the public, the plaintiff has a generalized grievance that must be pursued b political rather than judicial means. Diss: a. Although the interest in acquiring information was not protected at common law, and although prudential considerations might have precluded recognition of standing to sue based on so widespread an injury in the absence of a statute, Congress had specifically authorized suit under the FEC Act. Judicially imposed prudential limitations on standing therefore had to give way; the failure to obtain relevant information is a concrete enough injury to satisfy the requirements of Article III. D. Congressional Power to Create Standing 1. Lugan v. Defenders of Wildlife p. 1526 Facts: Congress authorized any person may commence a civil suit on his behalf to enjoin a government agency who is alleged to be in violation of the Endangered Species Act. Plaintiff brought suit against Secretary of the Interior Lugan using this authorization. Issue: May Congress give all citizens standing to sue in an issue of public administration? No. Only federal court may decide the rights of individuals; Congress and President vindicate the public interest. If Congress could convert the undifferentiated public interest in an executive branch that complies with the law into an individual right to be vindicated by the Courts, then Congress has effectively transferred from the President to the Courts the Constitutional duty to take care that the laws will be faithfully executed. The fact that Congress may not eliminate the requirement of a concrete personal injury does not Held: 13 preclude Congress from creating legal rights, the invasion of which creates standing. Diss: Blackmun: Moving enforcement to Courts takes power away from Congress, not from Executive. Congress can decide how it wants a procedure to take place. a. In cases involving actual injuries that have not previously been viewed as adequate to support standing perhaps because they are too widely shared Congress` power to confer standing remains. b. In cases in which there was, previously, no actual injury, Congress cannot confer standing. IV. Congress, Constraints of Federalism, and Limitations on the States A. Necessary and Proper Clause Art. 1 8 Clause 18 To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. 1. McCulloch v. Maryland p. 58 Facts: Maryland made tax on any banks who were not chartered in the state. Sued National Bank to collect tax. Issue: Even though the Constitution does not explicitly grant Congress the authority to charter a bank, can it do so under the doctrine of implied powers? Yes. Under Necessary and Proper Clause, any appropriate means that Congresses uses to attain legitimate ends that are within the scope of Congress and not prohibited by it are constitutional. The word necessary does not limit Congress to indispensable means, but rather enlarges the powers vested in the federal government. McCulloch is important because it demonstrates the supremacy of the federal government. 1. US Term Limits, Inc. v. Thorton p. 62 Facts: States sought to add qualifications for members of Congress that come from their state. 14 Held: Issue: Held: Do states have power to add qualifications? No. The power to add qualifications is not within the original powers` of the States, and thus is not reserved to the States by the Tenth Amendment. No. The right to choose representatives belongs not the States, but to the people. V. Commerce Clause Art 1 8 Clause 3 To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes At first, Commerce Clause involved challenges against state action that allegedly discriminated against or burdened interstate commerce. 1. Gibbons v. Ogden p. 65 Facts: NY granted exclusive right to waterways to Ogden. Gibbons operated under Ogden`s route but was licensed under federal statute. Issue: Is state regulation of commercial navigation that excludes federally licensed operators constitutional? No. Navigation is a part of commerce, not separate to it. Commerce power must be exercised within the borders of the states, even though it cannot reach solely intrastate commerce. Powers of Congress do not stop at boundary lines of a state. Marshall, C.J.: only limits on congressional power to regulate interstate commerce are political, not judicial. 2. Paul v. Virginia p. 68 Issue: Do states have a right to regulate interstate insurance business? Held: Yes. States have a right to regulate interstate insurance because issuing a policy of insurance is not a transaction of commerce. Held: 3. Kidd v. Pearson Facts: Iowa banned liquor production. Iowa distillery which sold entire output to other states sued. 15 Issue: Held: Is manufacturing a part of commerce? No. No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufacturing and commerce. If it be held that the term includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. 4. The Daniel Ball p. 68 Facts: Federal regulation applied to small ships in shallow water. Issue: Does Congress have power to regulate intrastate navigation when the products are interstate? Yes. So far as ship was transporting goods destined for other States, could be held to federal statutes. Held: LIMITATIONS ON COMMERCE POWER THROUGH 1936 5. Hammer v. Dagenhart p. 74 Facts: Congress passed Child Labor Act, which prohibited shipment in interstate commerce of any product that was produced or mined by child labor. Issue: May Congress use its commerce power to promote social values? No. Congress does not have police power. The goods themselves are harmless. Manufacturing is a purely local activity, not subject to the Commerce Clause. Diss: (Holmes): If there were no Constitution and no Congress, states would be able to prohibit goods from entering from another state for any reason they wanted. Held: NEW DEAL LIMITATIONS 6. Schechter Poultry Corp v. United States p. 77 Facts: National Industrial Recovery act sought to regulate trade practices in a NY poultry wholesale slaughtering market where 96% of poultry came from other states. 16 Issue: May Congress make legislation regarding completely intrastate commerce activity? No. There is no direct effect between activity which the act was regulating and interstate commerce. Held: 7. United States v. Sullivan p. 84 Facts: Congress tries to regulate warning labels on pill boxes. Issue: May Congress regulate commerce even after it is done with interstate part of journey? Yes. Affirm constitutional power of Congress under the commerce clause to regulate the branding of articles that have completed an interstate shipment and are being for future sales in purely local or intrastate commerce. Held: 8. Wickard v. Filburn p. 85 Facts: Agricultural Adjustment Act of 1938. Penalty imposed upon Filburn for raising more bushels of wheat, for his own use, then allowed in his market allotment. Issue: May Congress regulate activity even when that activity does not have a direct effect on interstate commerce? Yes. Even if appellee`s activity be local and through it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as direct` or indirect`. This gets rid of direct-effect test and replaces it with substantial effect test. Held: 9. Maryland v. Wirtz Facts: Congress sought to expand coverage of Fair Labor act to hospital and schools. Issue: May Congress regulate, by the Commerce Clause, non-commercial institutions? Yes. These institutions are major users of goods imported from other states, and work stoppages involving their employees would interrupt this flow of goods across state lines. 17 Held: 10. Perez v. United States Facts: Congress sought to regulate extortionate credit transactions and racketeering. Issue: May Congress regulate classes of activities, even if the activity itself is a local activity? Yes. Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances` of the class. (Stewart): It is not enough to say that some loan sharking has interstate characteristics, for any crime may have some interstate setting. Definition and prosecution of local, intrastate crimes are reserved to the States under the 9th and 10th Amendments NEW LIMITATIONS AT THE END OF THE 20th CENTURY 11. United States v. Morrison Facts: Man rapes woman and is charged under federal Violence Against Women Act. Issue: May Congress regulate gender-motivated violent crime on the ground that the aggregate effect of such crimes substantially affects interstate commerce? No. Congress has authority to regulate interstate commerce, but it must show a substantial impact on interstate commerce of the actions it seeks to regulate or proscribe. No legislative history which expresses congressional findings on this matter. Simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so. Ultimately for the Court to decide what affects interstate commerce. Morrison sets forth 3 Channels of Interstate Commerce which Congress may regulate under the Commerce Clause: 1. Regulate the use of the channels of interstate commerce Held: Diss: Held: 18 2. Regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce 3. Regulate those activities having a substantial relation to interstate commerce VI. State Sovereign Immunity STATE IMMUNITY FROM FEDERAL TAXES 1. Early cases exempted most state functions and activities from federal taxation based on reciprocity (since states could not tax the federal government), immunity has since been restricted in most cases. a. General Principles A federal tax levied on all states would be valid as long as it does not discriminate against the states, does not unduly interfere with or substantially burden traditional state functions, and does not apply to revenue uniquely capable of being earned only by a state. 2. New York v. United States p. 126 Facts: Federal excise tax on New York`s sale of mineral waters bottled and sold by the state to provide funds for a state health resort. Issue: May the federal government tax state activities that are not uniquely state activities? Held: Yes. State revenue may be taxed by the federal government if the revenue from the state activity is not uniquely capable of being earned by a state. Diss: (Douglas) Many state activities are in marginal enterprises where private capital refuses to venture. Add to the cost of these projects a federal tax and the social program may be destroyed before it can be launched. 3. Massachusetts v. United States p. 127 Facts: Federal registration tax on all civil aircraft was applied to state police planes. Issue: May the federal government impose a fee on states that benefit from a federal program? Held: Yes. A nondiscriminatory taxing measure that operates to defray the cost of a federal program by recovering a fair approximation of each beneficiary`s share of the cost is surely no more offensive to the constitutional scheme than is either a tax on the income earned by state employees or a tax on a State`s sale of bottled water 4. User fees 19 Federal government may impose a fee on states that benefits from a federal program, as long as the fee is (i) nondiscriminatory, (ii) based on a fair approximation of use, and (iii) not structured to produce revenue exceeding the total cost of the benefits conferred. STATE IMMUNITY FROM FEDERAL REGULATION 5. Maryland v. Wirtz p. 128 Facts: Fair Labor Standards Act was applied to state schools and hospitals. Issue: May the federal government use the Commerce clause to require states to operate under the same standards as private companies? Held: Yes. In exercising a delegated power the federal government may override the countervailing state interests whether these be described as governmental or proprietary in character. Diss: (Douglas) It is one thing to force a State to purchase safety equipment for its railroad and another to force it either to spend several million dollars more on hospitals and schools or substantially reduce services in those areas. In this case the State as a sovereign power is being seriously tampered with, potentially crippled. 6. National League of Cities v. Usery p. 129 Facts: Fair Labor standards Act extends minimum wage and maximum hour protections to state employees. Issue: May the federal government, under the Commerce Clause, interfere with integral governmental functions of a state? Held: No. There are limits to the power of Congress to override state sovereignty when exercising its otherwise plenary powers to tax or to regulate commerce. Con: (Blackmun) Take into account the importance of the statute. Balancing test. OVERRULES MARYLAND V. WIRTZ Under NLC v. Usery, the federal government cannot impose regulations on states which would substantially restructure the way in which state and local governments discharge their dual function of administering the public law and furnishing public services. Specifically talking about regulating state-actors; not issue of Commerce, but issue of state sovereignty. 20 Three requirements for governmental immunity: 1. Must regulate states as states. 2. Cannot apply to things which are matters of state sovereignty. 3. Compliance with federal obligation must directly impair states` ability to structure integral operation in areas of traditional government functions. [The requirements, although made in Usery, are explicitly stated in Garcia] 7. Garcia v. San Antonio Metropolitan Transit Authority p. 130 Facts: Fair Labor Standards Act was applied to a municipally-owned and operated mass transit system. Issue: May Congress enforce wages and overtime against a government`s mass-transit authority? Held: Yes. Political process ensures that laws which unduly burden the States will not be promulgated. Diss: Today`s decision effectively reduces the Tenth Amendment to meaningless rhetoric when Congress acts pursuant to the Commerce Clause. Senate and Electoral College no longer protect the States. OVERRULES NLC v. USERY. Opinion details difficulty in creating a workable standard to be used to distinguish between protected and unprotected governmental functions. Historical Approach: Prevents court from accommodating changes in the historical functions of States, changes that have resulted in a number of once-private functions like education being assumed by the States. A priori Approach: Impossible to determine what a uniquely governmental function is. States must be free to engage in any activity that their citizens choose for the common weal, no matter how unorthodox or unnecessary anyone else including the judiciary deems state involvement to be. Need to look at structure of Constitution. It is no novelty to observe that the composition of the Federal Government was designed in large part to protect the stats from overreaching by Congress. 21 Federalism safeguards by process, not by ensuing result. We are convinced that the fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the States as States is one of process rather than one of result. 8. Printz v. United States p. 136 Facts: Brady Handgun Act required local law enforcement officers (CLEO) to conduct background checks while a federal system was put in place. Issue: May Congress compel state officers directly enforce a federal regulatory program? Held: No. Congress may not compel state officers directly. Constitution gives Congress power to regulate individuals, not states. Con: (O`Connor) Does not preclude Congress from imposing purely ministerial reporting requirements. (Stevens) 10th Amendment does not restrict power, just reserves power. Diss: Footnote 17: Congress may require individuals to do things, but the Brady Act is not imposing requirements on individuals qua individuals. Requirements are for individuals qua official capacity. After Printz, Congress can still achieve same goals through: (1) Spending Clause (2) State Officials Could Voluntarily Comply VII. 14th Amendment (Congress` Enforcement Powers) 1. Katzenbach v. Morgan p. 1479 Facts: Election law in New York requires ability to read and write English to vote. Voting Rights Act allows that no person who has finished 6 th grade accredited by Puerto Rico shall be denied right to vote. Issue: May Congress prohibit enforcement of a state English-literacy voting requirement by legislating under Section 5 of the 14th Amendment? Held: Yes. 14th Amendment gives Congress power to legislate. Court will use rationality review. Let the end be legitimate, and all means which are appropriate should be constitutional. 22 Diss: (Harlan) Court has given Congress the power to define the substantive scope of 14th Amendment. Court needs to do more than weighing whether Congress believes a state law to be unconstitutional against a State believing a state law to be constitutional. Such a simple weighing of presumptions is hardly a satisfying way of resolving a matter that touches the distribution of state and federal power in an area so sensitive as that of the regulation of the franchise. [But dissent is wrong here Congress cannot define rights downward; Congress may increase what constitute a right, but cannot make a substantive right less than what the Court says Court creates a floor] Bickel p. 48 idea of dilution of rights. "The Framers of the Fourteenth Amendment explicitly rejected the option of an open-ended grant of power to Congress freely to meddle with conditions within the states, so as to render them equal in accordance with Congress's own notions. Rather, federal power, legislative as well as judicial, was to be limited by the terms of the Amendment. The Court's distortion of the history of the matter became transparent in a footnote in which the Court added that 5 was to be as enabling Congress to enlarge on the terms of the Fourteenth Amendment, but not "to exercise discretion in the other direction" by diluting or restricting them. It was precisely because they feared both enlargement and dilution, and because they saw legislative power to do either as necessarily importing power to do the other, that the Framers builded as they built, and not as the Court said they built." Congress does not need to wait for a judicial determination of unconstitutionality before prohibiting the enforcement of a state law. Congress may enact any legislation that is appropriate. Court denies argument that it must decide first whether something is unconstitutional before Congress can act. 5 gives Congress a necessary and proper like ability. Brennan gives two reasons why 4 of the Voting Rights Act can be used (under rationality review): (1) Enabling more members of the Puerto Rican community to vote gives them ability to preserve other rights. (2) Congress could have decided that NY violated equal protection clause by requiring English literacy. 23 Means did not equal end, even if end was worthy (getting people to read was not worth denying people the vote). Proportionality question even though Puerto Ricans are represented at the federal level, they weren`t represented in the local level. Bickle p. 61 Argument against (2) Congress could not have decided that NY violated equal protection clause by requiring English literacy. "Therefore, the Court argued, if Congress thought the Puerto Ricans might otherwise be discriminated against by law or administrative action in New York, it hadd the power to enfranchise them as a means of preventing such other discrimination, on the theory that the vote would enable them to better protect themselves. Instead of directly attacking the official discrimination practiced against Puerto Ricans, this is to say, as it plainly could have done under the Fourteenth Amendment, Congress decided to reach it indirectly, by securing the vote for Puerto Ricans. The vote is thus seen as a means of enforcing the Fourteenth Amendment, not as itself the end of the Congressional action, and the problem of whether Congress has plenary power to set qualifications for voting is avoided." 2. Boerne v. Flores p. 1485 Facts: City of Boerne denied a building permit to enlarge a church, based on ordinance governing historic preservation. Denial challenge under Religious Freedom Restoratoin Act (RFRA). Issue: May Congress impose a rule of constitutional interpretation on the Supreme Court through its enforcement of the 14th Amendment? Congress has power to enforce constitutional right to free exercise of religion. However, does not have power to change what the meaning of free exercise of religion is. Held: Preventive rules may sometimes be appropriate remedial measures, but the means must be appropriate to the ends to be achieved. But in this case, there is no record of past religious bigotry. 3. Rome v. United States p. 1491 Facts: Attorney General refused to approve voting districts changes in Rome, GA, even though there had no been any discriminatory barriers in the past 17 years and the changes were not racially motivated. 24 Issue: Does Congress have the power under the 14th Amendment to enforce nondiscrimination in voting even when there is no intentional discrimination? Yes. Congress may ban electoral changes that are discriminatory in effect (de facto discrimination) even if 1 of 14th Amendment prohibits only intentional discrimination in voting. Held: 4. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank p. 1497 Facts: Congress creates Patent Remedy Act to subject states to federal court actions for patent infringement. Issue: May Congress create preventative laws under 14 5 when there is no evidentiary support that rights were being violated? No. Legislative history does not respond to a history of widespread and persisting deprivation of constitutional rights of the sort Congress has faced in enacting proper preventative 14 5 legislation. Because of this lack, the provisions of the Patent Remedy Act are so out of proportion to a supposed remedial or preventative object that they cannot be understood as responsive to unconstitutional behavior. Diss: (Stevens) Court has never mandated that Congress must find widespread and persisting deprivation of constitutional rights` in order to employ 14 5 authority. Held: 5. United States v. Morrison p. 1499 Facts: Virginia Tech football player raped Morrison. Football player was brought under Violence Against Women Act (Commerce Clause). Issue: May Congress provide a federal civil remedy for a gender motivated crime under the Commerce Clause on the ground that the aggregate effect of such crimes substantially affected interstate commerce? No. Congress has no 14 5 power to grant a civil remedy to victims of gender motivated violence despite Congress` findings. State-sponsored gender discrimination violates equal protection unless it serves important governmental objects and the discriminatory means employed are substantially related to the achievement of those objectives Held: 25 Congress has authority to regulate interstate commerce, but it must show a substantial impact on interstate commerce of the actions it seeks to regulate or proscribe. The Violence Against Women Act used a but-for causal chain to show an impact on interstate commerce, a kind of reasoning that has been rejected by Court in the past. Congress has no authority to regulate noneconomic, violent criminal conduct based solely on the conduct`s aggregate effect in interstate commerce. VIII. Spending Clause 1. United States v. Butler p. 111 Facts: Agricultural Adjustment Act of 1933 authorized government to contract with farmers to reduce their acreage in exchange for benefit payments. Issue: May Congress use its taxing and spending powers to operate a self-contained program regulating agricultural production? No. While Congress has the power to tax that is not limited to the enumerated powers of Congress in Article 1 8, this act has an independent bar in the 10th Amendment. Power to regulate agricultural production is for the states; is a matter beyond the powers delegated to the federal government. The power to confer or withhold unlimited benefits is the power to coerce or destroy. If the cotton grower elects not to accept the benefits, he will receive less for his crops; those who receive payments will be able to undersell him. The result may well be financial ruin. This is coercion by economic pressure. Diss: (Stone) Constitution requires public funds to be spent for the promotion of the general welfare. The depressed state of agriculture at this time is such that spending money to aid farmers is within this promotion of the general welfare. It is a contradiction in terms to say that there is power to spend for the national welfare, while rejecting any power to impose conditions reasonably adapted to the attainment of the ends which alone would justify the expenditure. THIS WAS THE LAST OF THE SERIES OF CASES STRIKING DOWN THE NEW DEAL. 26 Held: 2. Steward Machine Co. v. Davis p. 114 Facts: Social Security Act taxed employers. If employer contributed to a state plan, he got 90% credit toward the contribution of his federal responsibility. All state plans had to be approved by SecTreas. Issue: May Congress reduce employers` taxes by crediting payments made only to federally approved state plans in order to induce states to create these plans? Yes. Because of depression, spending here was clearly for general welfare. States`s interest, while sufficient to justify regulation in the absence of federal regulation, is too transitory to preempt national regulation, especially when the national action arises from exercise of the treaty power. Four ways in which Steward is not like Butler: (1) Proceeds of the tax are not earmarked for a special group. (2) Unemployment compensation law has had the approval of the state and could not be a law without it (3) Condition is not linked to an irrevocable agreement, for the state may repeal the law and terminate the credit (4) Condition is not directed at an unlawful end, but to an end, the relief of unemployment, for which nation and state may lawfully cooperate. 3. South Dakota v. Dole p. 117 Facts: Congress enacts law which withholds 5% of federal highway funds to states which do not increase drinking age to 21 years old. Issue: May Congress refuse to provide funds to stats that do not adopt certain standards? Yes. Congress may condition its funds so long as it does so unambiguously, so that States may make their choice knowingly and cognizant of the consequences. Conditions must relate to the federal interest in particular project. However, other constitutional provisions may provide an independent bar to the conditional grant of funds. Drinking is directly related to the safety of the highway, so is allowed. 27 Held: Held: 21st Amendment does not act here as an independent Constitutional bar. Diss: (O`Connor) When Congress appropriates money to build a highway, it is entitled to insist that the highway be a safe one. But it is not entitled to insist as a condition of the use of highway funds that the State impose or change regulations in other areas of the State`s social and economic life because of an attenuated or tangential relationship to highway use or safety. IX. Separation of Powers Montisquieu, Federalist 47 and 51 Executive Power During Emergencies 1. Youngstown Sheet & Tube Co. v. Sawyer [Steel Seizure Case] p. 146 Facts: Steelworkers go on strike. President orders Commerce Secretary to seize steel mills and keep them running. Legislative history had rejected giving President power to permit government seizures. Issue: May the President, acting under his independent powers, but without any powers delegated by Congress, exercise a lawmaking power in order to protect serious national interests? No. President does not have independent powers under the Constitute to seize property. President`s order did not direct a policy be executed in a manner prescribed by Congress, but rather a policy executed by the President. Seizure cannot be sustained on the grounds that President is the Commander in Chief of the Armed Forces. Con: (Douglas) President might seize first and have Congress authorize later. Only the branch that has the power to pay compensation for the seizure may authorize a seizure. (Jackson) Branches are separate but interdependent. When the President acts pursuant to an express or implied authorization of Congress, his authority is at is maximum, for it includes all that he possess in his own right plus all that Congress can delegate. X. Held: Con: i. ii.When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have 28 concurrent authority, or win which its distribution is uncertain. Therefore, congressional inertia, indifferent or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. iii. When the President takes measures incompatible with the expressed or implied will on Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. 3. Dames & Moore v. Regan p. 152 Facts: President made presidential executive order to implement an executive agreement between Iran and the United States. Executive orders were taken pursuant to congressional authorization under the International Emergency Economic Powers Act. Issue: Held: May President suspend outstanding claims in American courts? Yes. Congress has implicitly approved the practice of claim settlement by executive agreement. Congress cannot anticipate and legislate with regard to every possible action that might be needed. Part of the executive order sets up a Claims Tribunal, which allows an alternative forum for persons to get relief. XI. Foreign Affairs and War Powers 1. United States v. Curtiss-Wright Export Corp. p. 184 Facts: Congress through a joint resolution, permitted the President to prohibit arms sales to those countries involved in conflict in Chaco, if he found a prohibition would contribute to the peace. Issue: Can the Congress delegate legislative-type powers to the President to conduct foreign affairs? Yes. Congress can delegate legislative-type powers in foreign affairs. (1) Power of federal government in regard to external affairs is not delegated by the Constitution, but derives a necessary concomitant of sovereignty. These powers are as broad as the powers held by any other nation. [a prior powers of executive] Sovereignty passed from the King of the United Kingdom to collective powers of the United States, not to the colonies individually. Held: 29 (2) Federal power is exclusive in this realm; states have no concurrent power. Congress may delegate broader powers to executive for conducting foreign affairs than it can for handling domestic affairs. 2. Campbell v. Clinton Facts: President began a NATO attack on Yugoslav targets. War Powers Resolution allows President to continue operations for 60 days, but this last 79 days. Congressman bring suit. Issue: May members of Congress bring suit against the President for a violation of the War Powers Resolution? No. Violation of the War Powers Resolution and the War Powers Clause are not justiciable. No constitutional test for what is war. President may repel aggressive acts by third parties without specific authorization from Congress, and courts may not review the level of force selected. If President can respond to war initiated by another, a plaintiff who challenges the action would have to answer who started it, and the courts have no judicial standards to resolve such an issue. XII. Substantive Due Process 1. Fourteenth Amendment The concept of due process under the Fifth Amendment merely assured fair legal procedures, an applied only to the federal government. The Fourteenth Amendment Due Process Clause specifically prevents any state from depriving any person of life, liberty, or property without due process of law. Of course, the Fourteenth Amendment was adopted to prevent racial discrimination. However, the broad language used encouraged lawyers to try using it as a restriction on state regulation of business, not merely to attack the procedures used, but also to attack the substantive fairness of the regulations. 2. Test of Due Process a. Ends or purposes: Court examined the purposes of the legislation, asking whether the object was legitimate, appropriate, and/or necessary. b. Means: Court also determined whether the means used to accomplish the legislation`s purpose were reasonable and appropriate. c. Effect: Court inquired into the effect of the law on the liberty and property of the parties involved. If the effect was too drastic, then the law violated due process. 3. could work. 30 Lochner v. New York p.287 Facts: State law limited number of hours bakers Held: Issue: May a state prohibit private agreements to work more than a specified number of hours? No. Persons have a right to contract under the 14 th Amendment. The regulation does not fall under the state`s policing powers. Strict Scrutiny Standard (Holmes) Constitution does not embody a particular economic vision but was rather framed to permit expression of dominant opinions. I think that the word liberty,` in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. Held: Diss: 4. Muller v. Oregon p. 292 Facts: State law which limited work hours for women. Issue: Can a state regulate private agreements to work when the state has a special interest in the health of women? Yes. A women`s physical structure put her at a disadvantage in the struggle for subsistence and that since healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest. Ends are justified here under a strict scrutiny standard, so its alright. [This does not overrule Lochner] 5. Coppage v, Kansas p. 293 Facts: State law prohibited employers from requiring employees to agree not to join a labor union. Issue: Does a state regulation which prohibits employers from making this requirement violate due process because it interferes with a right to make contracts? Yes. Employer has a right to be able to set whatever terms he wants for employment, just as employee has right not to accept the terms. (Holmes) A workman not unnaturally may believe that only by belong to a union can he secure a contract that shall be fair to him. If that belief, whether right or wrong, may be held by a reasonable man, it 31 Held: Held: Diss: seems to me that it may be enforced by law in order to establish the equality of position between the parties in which liberty of contract begins. 6. Decline of Substantive Due Process After Lochner, Court begins to apply less strict scrutiny to economic regulation. 7. Nebbia v. New York p. 295 Facts: State law to regulate milk prices because milk prices were lower than cost of production. Issue: Can a state strictly control retail prices when that control inhibits the making of contracts? Yes. As long as Court finds the law to have a reasonable relationship to a proper legislative purpose, and is not arbitrary or discriminatory, and to have means chosen that are reasonably related to the ends sought, there is no violation of due process. Rationality Review Standard Creates a deference to legislative determinations (see Carolene Products). Establishes a very deferential standard for challenging economic regulations. After Nebbia, Substantive Due Process shifts to other areas (ie: interest in privacy). Diss: (McReynolds): Consumers are deprived of their liberty to buy a necessity in an open market. Milk industry is not affected with a public interest. Held: 9. Test for Substantive Due Process a. What is the right being asserted? b. What is the basis for this right? c. What is the government interest being asserted? d. What is the fit between the means employed by the government and the ends? 10. West Coast Hotel Co. v. Parrish p. 297 Facts: State minimum wage law for women. Issue: Held: May a state control minimum wages for women? Yes. Legislature can use its fact-finding powers to find that women are in the class receiving the least pay and that their bargaining power 32 is relatively weak; even if the wisdom of the policy is bad, the Legislature may still invoke its judgment. What these workers lose in wages the taxpayers are called upon to pay The community is not bound to provide, what is in effect a subsidy for unconscionable employers Liberty under the constitution is necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. XIII. Right of Privacy 1. Current substantive due process has an all-or-nothing feel to it. If a right is a general right lacking textual support in the Constitution, it is held under a rational review scrutiny. If the right is considered fundamental` or preferred`, Constitution permits the right to be abridged only if state can demonstrate an extraordinary justification. Strict scrutiny. Because the review standard for ordinary liberties is so deferential, and the standard for preferred liberties so rigid, outcomes are ordained by the designation of preferred` or not. 2. Penumbra a surrounding area or periphery of uncertain extent. Supreme Court has ruled that specific guarantees in the Bill of Rights have penumbras containing implied rights, especially the right of privacy. 3. Griswold v. Connecticut p. 360 Facts: State law prohibited use of contraceptives. Issue: Does a constitutional right of privacy exist which prohibits states from making use of contraceptives by a married couple a crime? Yes. Penumbras in the Bill of Rights create zones of privacy. First Amendment right of association and the related privacy. Third Amendment privacy of the home Fourth/Fifth sanctity of the home Even though a penumbra is not mentioned in the Constitution, not protecting the right would make the enumerated rights less secure. Diss: (Stewart). The law is stupid, but there is no general right of privacy found in the Constitution, so we cannot hold that it violates the Constitution. 33 Held: Third Amendment Penumbra p.62 of Amar 4. Eisenstadt v. Baird p. 370 Facts: State law making it a felony to distribute contraceptive materials except in case of registered physicians to married people. Issue: Held: May state regulate use of contraceptives to single people? No. If goal is for health reasons, the statute is overbroad and discriminatory. Viewed as a prohibition on contraception per se, the statute violates the rights of single person sunder the Equal Protection Clause. For, whatever the rights of the individual to access to contraceptives may be, the rights must be the same for unmarried and married alike. Diss: (Burger) seeing nothing in the Fourteenth Amendment or any other part of the Constitution that even vaguely suggests that these medicinal forms of contraceptives must be available in the open market. 5. Roe v. Wade p. 374 Facts: Roe sought declaratory and injunctive relief against Wade, a county district attorney, to prevent enforcement of Texas criminal abortion statutes. Roe already had abortion before case even gets to district court. Issue: May a state constitutionally make it a crime to procure an abortion except to save the mother`s life? (Blackmun) No. STRICT SCRUTINY STANDARD Three reasons for making abortions illegal: 1) Victorian Social Concern for Illicit Sex But this isn`t being argued/not serious argument 2) Concern for safety of women. But this was back when procedure was dangerous for women. Now, abortion early in pregnancy, though not without risk, is relatively safe. 3) State's interest in protecting prenatal life. Right of privacy relates to marriage, procreation, and contraception, but is not without restraint based on the state`s compelling interest. 34 Held: Recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. A state may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. Fetus is not a person under the 14th Amendment. Texas also argues that the state can define when life begins. State has two compelling interests: 1. Health of the pregnant woman 2. Protecting the Potentiality of Human Life These interests are distinct from one another. First Trimester: No restrictions. This is so because of the now established medical fact that until the end of the first trimester mortality in abortion is less than mortality in normal childbirth. For the period of the pregnancy prior to this compelling point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that in his medical judgment the patient`s pregnancy should be terminated It is doctor's decision, not woman's. Second Trimester: Health of the mother is the compelling point. After this point [First Trimester] a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Ex: regulate qualifications for people who can perform abortions, where they can be performed, etc. Third Trimester/Viability: Viability the fetus presumably has the capability of meaningful life outside of the mother`s womb. Usually occurs at 28 weeks but maybe as early as 24 weeks. State regulation of fetal life after viability thus has both logical and biological justifications. 35 If the State is interested in protecting fetal life after viability, it may go as far as to proscribe [forbid] abortion during that period except when it is necessary to preserve the life or health of the mother. Con: (Stewart) Court has generally recognized freedom of personal choice in matters of marriage and family life as a liberty protected by the 14 th Amendment. Texas statute directly infringes on that right and is correctly invalidated. 14th amendment thus requires particularly careful scrutiny the statute. Con: (Douglas) Freedom of choice in the basic decisions of one`s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children. These rights are subject to some control by the police power. However, statutes must be narrowly and precisely drawn and there must be a compelling state interest in support of the limitation. Dis: (White) Nothing in language or history of Constitution to support this. Dis: (Renquist) Privacy is a claim of liberty against unwanted state regulation of consensual transactions, protected by the 14 th Amendment. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. Traditional test is whether the law has a rational relationship, but Court ignores that. Court instead adopts a compelling state interest test. Case is not moot because it was capable of repetition yet evading review. Idea what that anyone could get pregnant in the future, not just Roe. Justices here don`t agree on where privacy right comes from. Use of History: Justices use broad time frame and contextualize abortion debate in this long history. Dissenters look at practice of United States over past hundred years. Dred Again: Originalism's Forgotten Past Article 6. Doe v. Bolton p. 381 Facts: Georgia abortion statute made abortion a crime except when health of mother, rape, or fetus would have severe birth defects. 36 Issue: Must state regulation of abortion be closely related to achievement of valid state objectives in order to withstand a 14th Amendment challenge? Doctor may use his professional judgment in deciding if abortion is necessary; should not be restricted by requirements of state statute. Statute had 3 restrictions. 1. Abortions had to take place in specially accredited hospitals 2. Advance approval by Abortion Committee of hospital 3. Two-doctor concurrence All fail: 1. Invalid because it fails to exclude the first trimester of pregnancy as required by Roe 2. No constitutionally justifiable reason for the need for advance approval. Statute`s emphasis is on the attending physician`s best clinical judgment that an abortion is necessary`. That should be sufficient. No other voluntary medical or surgical procedure for which Georgia requires confirmation by two other physicians has been cited. Judgment infringes on physician`s right to practice, without being rationally connected to the patient`s need. Held: 3. 7. Commentary on Abortion Cases p.382 A. Integrity of an individual`s person p.383 Pregnancy is rough on the body and is a more profound intrusion into bodily integrity than the stomach pumping the Court had previously invalidated. B. Posner Abortion as a Net-Gain p.385 If there were no abortions, and if as a result population grew faster as almost certainly it would if abortions were effectively repressed society would reach a condition of perceived overpopulation sooner; the birth rate would fall; and children would not be born who would have been born had abortions been permitted in the earlier period. Abortion also enables parents to invest more in their children, thereby increasing the quality of the children as the expense of their quantity. C. MacKinnon Feminine Perspective p.385 37 The only point of recognizing fetal personhood, or a separate fetal entity, is to assert the interests of the fetus against the pregnant woman. The existence of sex inequality in society requires that completed live birth mark the personhood line. If sex equality existed socially if women were recognized as person, sexual aggression were truly deviant, and childrearing were shared and consistent with a full life rather than at odds with it the fetus still might not be considered a person but the question of its political status would be a very different one D. McDonagh Abortion as Self-defense p. 391 A woman`s right to an abortion should be understood as a right to defend herself against the nonconsensual invasion, appropriation, and use of her physical body by an unwelcome fetus. 8. Maher v. Roe p. 398 Facts: State withheld Medicaid funding for elective abortions during first trimester but reimbursed women for medically necessary abortions. Issue: Does a State place an undue burden on a women`s right to an abortion by not funding it? No. In Roe, Court held that there was a right protecting the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy, but not an unqualified right to an abortion. State may have made childbirth a more attractive alternative, thereby influencing a woman`s decision, but it has not imposed a restriction on access to abortions that was not already there. There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative consonant with legislative policy. RATIONALITY REVIEW STANDARD Diss: (Brennan) Disparity in funding clearly operates to coerce indigent pregnant women to bear children they would not otherwise choose to have; this coercion can only operate on the poor. (Marshall) Imposes a moral viewpoint that no State may constitutionally enforce. 38 Held: Dis: Dis: (Blackmun) Court concedes existence of a constitutional right but denies the realization and enjoyment of that right on the ground that existence and realization are separate and distinct. Let them eat cake. 9. Harris v. McRae p. 401 Facts: Hyde Amendment to Medicaid Act denied public funding for medically necessary abortions. Issue: May Congress, deny public funding for certain medically necessary abortions while funding substantially all other medical costs, including costs of carrying pregnancy to term? Yes. Although government may not place obstacles in the path of a woman`s exercise of her freedom of choice, it need not remove those not of its own creation. Diss: (Stevens) Individuals who satisfy the two neutral criteria financial need and medical need under Medicaid are entitled to equal access. If a woman has a constitutional right to place a higher value on avoiding either serious harm to her own health or perhaps an abnormal childbirth than on protecting potential life, the exercise of that right cannot provide the basis for the denial of a benefit to which she would otherwise be entitled. Diss: (Brennan) What the Court fails to appreciate is that it is not simply the woman`s indigency that interferes with her freedom of choice, but the combination of her own poverty and the government`s unequal subsidization of abortion and childbirth. Held: 11. Akron v. Akron Center For Reproductive Health p. 403 Facts: Akron City Council adopted ordinance to regulate abortion which required a) Mandatory 24 hour waiting period b) Informed Parental Consent provision c) Abortions had to be performed in hospitals Issue: Must state regulation of abortion comply with prevailing medical practice and not diminish the availability of abortions without promoting important health benefits? Yes 39 Held: a) 24 hour waiting period is arbitrary and does not reasonably serve any legitimate state concern that the women`s decision be informed. b) Informed Parental Consent is unconstitutional because it does not provide for an alternative procedure whereby a pregnant minor may demonstrate that she is sufficiently mature to make the abortion herself, or that, despite her immaturity, an abortion would be in her best interests. c) Hospital requirement is unconstitutional because it introduces a significant obstacle for those seeking abortions but does not reasonably promote health benefits. 12. Thornburgh v. American College p. 404 Facts: Reporting requirements of post-viability abortions. Held: Invalidates reporting requirements and various other restrictions on post-viability abortions. (White) When Court has found a fundamental liberty in the penumbras of other specifically enumerated rights, it must act with more caution, lest it be accused of imposing its own value choices on citizens. Abortion must be recognized as sui generis (Latin of its own kind) different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy. Abortion should be left up to the will of the people through legislation or through the general principles they have already incorporated in the Constitution. Con: (Stevens) (Arguing against White`s Dissent). If decision to have an abortion commands the respect that is traditionally associated with sensitive areas of liberty protected by the Constitution, no individual should be compelled to surrender the freedom to make that decision for herself simply because her value preferences` are not shared by the majority. There is a fundamental and well-recognized difference between a fetus and a human being; indeed, if there is not such a difference, the permissibility of terminating the life of a fetus could scarcely be left to the will of state legislatures. Diss: 40 We cannot let fundamental rights go through the political system. 13. Webster v. Reproductive Health Services p. 406 Facts: Missouri statute a) prohibits the use of public employees and facilities to perform or assist abortions not necessary to save the mother`s life, b) prohibits public resources to encourage or counsel women to have abortion c) requires a physician who believes woman is more than 20 weeks pregnant to determine whether fetus is viable. Issue: Held: May a state disregard Roe trimester approach in regulating abortion? Yes. Restriction on use of public resources to perform an abortion is permissible. Same logic as in McRae. Viability test is permissible. It promotes state`s interest in protecting human life; it creates a presumption of viability at 20 weeks that must be rebutted by the physician before performing an abortion. Trimester approach is no longer binding. Testing requirement is designed to ensure that abortions are not performed when the fetus is viable. Because this end is legitimate, the requirement is constitutional. Renquist: state cannot justify the violation of the terms of Roe by stating when life begins, but it can define when life begins for other purposes (Preamble of the statute in question). 14. Hodgson v. Minnesota p. 410 Facts: Minnesota law required both parents to be notified before a minor could have an abortion. Issue: May a state require a minor to notify their parents before having an abortion? Yes, with limitations. (Statute struck down) The two parent notification was too burdensome and was struck down. However, statute requiring parental notification with a judicial bypass is acceptable. Pregnant minor could get a court order permitting the 41 Held: abortion without notice because the (i) minor was mature and could give informed consent or (ii) he abortion without notification was in the best interests of the minor. 15. Planned Parenthood of Southeastern Pennsylvania v. Casey p. 412 Facts: Pennsylvania statute required women who wanted abortion a) 24 hour waiting period b) Give informed consent c) Minor receive consent of parents/judicial bypass d) Wife must inform husband e) Abortion facilities must make reports Issue: May a state impose notification and consent requirements as prerequisites for obtaining an abortion? Yes. Maintains three parts of essential Roe holding: (i) Women have right to have abortion before viability without undue state inference (ii) State has power to restrict abortions after viability, except to protect life of mother (iii) State`s legitimate interest in protecting health of woman and life of fetus Roe should be upheld on the principle of stare decisis because (i) It has not been proven unworkable (ii) People have relied on availability of abortion (iii) Under Roe women are better able to participate equally in economic and social life of country (iv) No evolution of legal doctrine has left Roe weak (v) No new factual understanding Trimester system replaced by viability Spousal notification is an undue burden and is not sustained. Diss: (Rehnquist) Stare decisis is not a reason to retain Roe. Held: Test for evaluating state restrictions on a woman`s right to have an abortion is the undue burden test if a law has an effect of imposing an undue burden on a woman`s ability to have an abortion before viability, the law is unconstitutional. Compelling interest of the state cannot override woman`s right to have an abortion before viability. 42 No undue burden Rationality Review Undue burden Unconstitutional 16. Steinberg v. Carhart p. 441 Facts: Nebraska statute bars partial birth abortion procedure D&X, but language broad enough to include other abortion procedure D&E. Issue: May a state regulate abortion by banning a specified procedure if the statute has no exception for the health of the woman and the statute encompasses other commonly performed abortion procedures? No. Statute lacks exception for the preservation of the health of the woman. D&X, in some cases, could be the safest procedure available, so state must provide a health exception. Statute imposes an undue burden if applied to the D&E procedure as well as the D&X. Statute could be taken to include D&E procedure even though State says its not intended for that. Because doctors who perform abortion using the D&E would fear prosecution for it, the statute imposes an undue burden on a woman`s right to make an abortion decision. Con: (O`Connor) Other states limit statute to D&X procedure and thus avoid a principle defect of the Nebraska statute. (Kennedy) State should be allowed to find that the D&X procedure is not morally equivalent to D&E because D&X is more like infanticide. Held: Dis: FAMILY LIVING ARRANGEMENTS 17. Whalen v. Roe p. 447 Facts: New York law required doctors to disclose names of persons obtaining certain drugs for storage in a central computer file. Issue: Does a statute which requires doctors to disclose this information create an invasion of a constitutionally protected zone of privacy? No. Legislation is a reasonable exercise of New York`s broad police powers because it does not, on its face, pose a sufficiently grievous threat to either (i) the privacy interest in avoiding disclosure of personal matters Held: 43 (ii) the privacy interest in independence in making certain kinds of important decisions. 18. Belle Terre v. Boraas p. 448 Facts: Village ordinance restricted land use to one-family dwellings, expressly excluding lodging, boarding, and fraternity houses. Issue: Held: Does a statute which restricts housing invade rights of privacy? No. Legislatures may draw lines which we respect if the law bears a rational relationship to a permissible state objective. Boarding houses, fraternity houses, and the like present urban problems. The police power is not confined to elimination of filth, stench, and unhealthy places. (Marshall) Law burdened fundamental rights of association and privacy. Right to establish a home is an essential part of the fourteenth amendment liberty. Diss: 19. Moore v. East Cleveland p.448 Facts: Town ordinance which allows certain types of relatives to live together but not others. Issue: Held: May local ordinances restrict types of family living arrangements? No. The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by due process. When the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. City goals of preventing school overcrowding and minimizing congestion were legitimate, but the ordinance served them marginally at best. Ours is by no means a tradition limited to respect for the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition. Diss: (White) This tradition is not deserving of a heightened protection under the Due Process Clause. The present claim is hardly one which it could be said that neither liberty nor justice would exist if it were sacrificed. 44 20. Quilloin v. Walcott p.452 Facts: Georgia law said that if natural father had not legitimated his offspring, only mother`s consent is required for the adoption of the child. Issue: May a statute limit father`s rights to child in cases where father has not legitimated child and has played no role in child`s life? Yes. Due Process Clause would take effect if State tried to force the breakup of a natural family, over the objection of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the child`s best interests. But in this case the adoption is to give full recognition of a family unit already in existence (stepfather was going to adopt child), a result desired by all except appellant. 21. Troxel v. Granville p. 452 Facts: Washington statute allowed any person to petition at any time for visitation rights to see a child. Issue: May a state interfere with the rights of parents to rear their children even when there is no showing of harm by the parents? No. Statute fails because it recognizes no threshold showing of harm. Allowing any person to petition for forced visitation with the only requirement being that that the visitation serve the best interest of the child the statute sweeps too broadly. Once the matter is placed before a judge, a parent`s decision that visitation would not be in the child`s best interest is accorded no deference. The statute places the best-interest determination solely in the hands on the judge. The Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a better` decision could be made STRICT SCRUTINY; (Thomas) State lacks even a legitimate governmental interest to say nothing of a compelling one. In Troxel, there is a departure from an exact application of strict scrutiny in the fundamental rights context. Instead, more of a balancing test. 45 Held: Held: 22. Zablocki v. Redhail p. 455 Facts: Wisconsin statute required an applicant who has a support obligation for a child not in his custody prove that the child is a) not a public charge and b) that the applicant has complied with his support obligations. Issue: May a state protect the welfare of children by denying marriage licenses to persons not fulfilling their support obligations or having children who are public charges? No. Marriage is a fundamental right. Statutes which interfere with it may be held to a STRICT SCRUTINY STANDARD. Falls within the Fundamental Rights Strand of Equal Protection. Under this, classification normally under rationality review are subject to strict scrutiny. Elevates classification because fundamental rights are at issue. However, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationships may legitimately be imposed. This statute clearly does interfere directly and substantially with the right to marry. Is both overinclusive and underinclusive. Underinclusive one rationale is that it limits financial commitments of those who already have financial commitments. But this is not true doesn`t forbid people from taking on other financial commitments (buying a car), nor having children out of wedlock. More over, may be cases where by marrying, applicant`s financial situation improves. More over, since it does not allow people who have children who are public charges to marry, it prevents people who have fulfilled their obligations but children still are public charges from getting married. It thus treats rich and poor people differently. Con: (Stewart) Problem is not discriminatory classifications but unwarranted encroachment on liberty protected by Due Process Clause. (Powell) Court`s rationale intrudes too broadly into state`s traditional power to regulate the marriage relation. Statute is improper only 46 Held: Con: because it fails to provide for those without means to comply with child-support obligations. 23. Do Means Meet Ends? Three Questions to ask: a. What alternative means are available? b. Under-inclusive? c. Over-inclusive? 23. Michael H. v. Gerald D. p.459 Facts: California statute presumes a child born to a married woman living with her husband, who is neither impotent nor sterile, is child of the husband, a presumption that may be rebutted only in very limited circumstances. Issue: May a state deny an adulterer`s claim of paternity by applying a presumption that a child born to married woman is the child of the husband? Yes. Plaintiff argues that as a matter of substantive due process that because he has established a parental relationship with child, protection of the marriage is insufficient state interest to support termination of his parent-child relationship. But Due Process Clause affords only those protections so rooted in the traditions and conscience of our people as to be ranked as fundamental. Our traditions in fact protect the martial family against the claims of the plaintiff. Thus no basis for finding a fundamental right protected by substantive due process. Diss: Opinion limits concept of liberty protected by the Due Process Clause to tradition. Tradition should be one of many factors considered. Several previous cases such as Eisenstadt and Griswold recognized liberty interests that were not traditionally protected. Held: Important part of this case is Scalia`s Footnote 6, which states that Court should refer to the most specific level at which a relevant tradition protecting or denying protection to the asserted right can be identified. 24. Tradition p.463 47 What is most troubling about Justice Scalia`s call for respecting the most specific tradition available is that our most specific historical traditions may often be opposed to our more general commitments to liberty or equality. Traditions do not exist as integrated wholes. They are a motley collection of principles and counterprinciples, standing for one thing when viewed narrowly and standing for another when viewed more generally. Tradition never speaks with one voice, although, to be sure, persons of particular predelictions may hear only one. 25. Lawrence v. Texas p. 39 Supp Facts: Texas statute prohibited persons of same sex from engaging in deviate sexual intercourse. Issue: Are adults free to engage in the private conduct in the exercise of their liberty under Due Process? (Kennedy) Yes. More than a right to have homosexual sex. To say that the issue in Bowers [case overruled here] was simply the right to engage in certain sexual conduct demeans the claim the individual put forward. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons History: No longstanding history of laws against homosexual conduct. Sodomy laws were not directed against homosexuals but against all nonprocreative sexual activity. Foreign Laws: European Court of Human Frights invalidated laws proscribing consensual homosexual conduct. UK Parliament repealed laws punishing homosexual conduct. Not an Equal Protection Issue: Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants Dignity Interest: When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discriminate both in the public and in the private spheres. Held: 48 Stare Decisis: No individual or societal reliance on precedent in Bowers. Rationale of Bowers does not stand. Fact that majority has historically viewed practice as immoral is not sufficient reason for upholding a law. Individual decisions about intimate choices are a form of liberty protected by Due Process. Texas Statute has no legitimate state interest. 14th Amendment: Framers of 14th didn`t intend to include gay rights. However, they knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. Con: (O`Connor) Moral disapproval of a group cannot be a legitimate government interest. (Scalia) Nowhere does the Court`s opinion declare that homosexual sodomy is a fundamental right under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a fundamental right. Argument of stare decisis to overturn Bowers seems to be exact opposite used in stare decisis to keep Roe. Societal reliance on the principles in Bowers have been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority`s belief that certain sexual behavior is immoral and unacceptable` constitutes a rational basis for regulation. Due Process Clause expressly allows State to deprive their citizens of liberty, so long as due process of law is provided. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above mentioned laws can survive a rational-basis review. Court is no longer a neutral observer in the culture war. Homosexual agenda. Diss: 49 Diss: (Thomas) Law is uncommonly silly. But there is no right of privacy in the Constitution to strike this law down from. XIV. Equal Protection (14th Amendment) 1. Dred Scott v. Sandford p. 1155 Facts: Plaintiff was a slave who went to free state of Illinois, then returned with owner to Missouri. Plaintiff sued defendant for trespass, claiming he had attained his freedom under Illinois law. Issue: May a slave be deemed a citizen of the United States capable of invoking federal jurisdiction based on diversity of citizenship? No. Constitution is clear that slaves were not to be regarded as citizens. Even if public opinion has changed, not for Court to change original meaning. If you want change, change the Constitution. Congress does not have power under Constitution to deprive a citizen of his liberty or property merely because he brings that property into a particular territory. Although plaintiff was taken to Illinois, his current status is governed by Missouri law, not Illinois law. Under Missouri law, is still a slave. Suit is based on federal diversity jurisdiction. Court says Dred Scott was not a citizen of a state, so he wasn`t eligible to sue under federal diversity jurisdiction. Should have ended case right there, as it fails threshold test. 14th Amendment undoes holding of Dred Scott regarding citizenship. Scalia considers this to be first case of substantive due process. See Dred Again: Originalism's Forgotten Past 2. Strauder v. West Virginia p. 1158 Facts: Blacks were not allowed to serve on juries. Issue: May a state, after the Civil War Amendments, restrict the right to serve on juries based on race? No. The purpose of the new amendments is to securing to a race recently emancipated the enjoyment of all the civil rights that under the law are enjoyed by whites. Held: Held: 50 Still can limit jury pool based on sex, age, freeholders, citizens, etc. 14th Amendment not intended to apply to such categories. 3. Plessy v. Ferguson p. 1158 Facts: Louisiana law required railway passenger cars to have equal but separate accommodations for whites and blacks. Issue: Held: May a state require separate but equal facilities for blacks and whites? Yes. 13th Amendment argument fails. 13th only forbids slavery, not laws imposing onerous disabilities and burdens. 14th Amendment was intended to enforce absolute equality of the two races before the law, but it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. The state is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Badge of inferiority exists only because the colored race chooses to put that construction upon it. If two races are to meet upon terms of social equality, it must be the result of voluntary consent of individuals. RATIONALITY REVIEW Animus Standard every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. Diss: (Harlan) Purpose of law is to exclude blacks from white cars, not to exclude whites from black cars. Constitution must be color blind, even if white race continues to be the dominant race in the country. 3. Korematsu v. United States p. 1162 51 Facts: Plaintiff was convicted of remaining in a military area after Army in World War II had made all Japanese and Japanese-Americans leave West Coast and go to detention centers. May race be used as a criterion for curtailing civil rights in a time of grave threats to national security? Yes. Legal restrictions which curtail civil rights of a single racial group are subject to most rigid judicial scrutiny, but the are not per se unconstitutional. Army determined in time of war that nothing less than exclusion of the entire group would solve the problem. Power to protect must be commensurate with the threatened danger. Issue: Held: Con: (Frankfurter) Court does not approve of the action, but defers to other branches because the action is not prohibited by Constitution. (Murphy) Exclusion exceeds Constitutional power. Situation was not so bad as to preclude loyalty hearings, etc. (Jackson) Court permits an inference of inheritable guilt contrary to the fundamental assumption of our system. Diss: Diss: This is the last case in which Court upheld over racial discrimination. Strict Scrutiny Standard. Times of war made government interest compelling. However, seems as if less restrictive options were out there. 4. Brown v. Board of Education p. 1167 (Brown I) Facts: Plaintiffs were black school children denied admission to schools attended by white children under laws requiring or permitting segregation based on race. Plaintiff challenged the law but was denied relief on the separate but equal doctrine. Issue: May children be segregated by race even though the public schools are equal? No. Granting that black and white schools are substantially equal in tangible factors, there still exists an invidious effect when black and white children are segregated. Segregation creates a feeling of inferiority that may significantly affect a child`s motivation to learn. Separate educational facilities are therefore inherently unequal, and Held: 52 their maintenance by government authority denies equal protection o of the law. Facts have changed since Plessy v. Ferguson now is understood that separate but equal doesn`t work in education that badge of inferiority is real. Court cites psychological authorities to show that separate but equal doesn`t work for kids in minority groups going to separate schools. Brown talks about education as a right which enables people to exercise their other rights. See Katzenbach v. Morgan After the Supreme Court had heard the initial arguments in Brown, and had decided to set a re-argument, Chief Justice Fred M. Vinson who was generally unsympathetic to the plaintiff`s` case died, to be replaced by Earl Warren. Upon learning of Vinson`s death, Justice Frankfurter is said to have remarked, This is the first indication I have ever had that there is a God. Dworkin (p.1172): courts should give a moral reading to provisions, such as the equal protection clause, that are drafted in exceedingly abstract language [and embody] abstract moral principles. The job of judges is to find the best conception of constitutional moral principles the best understanding of what equal moral status for men and women really requires, for example that fits the broad story of America`s historical record, including evolving social and moral understandings and relevant judicial precedents. Neutral Principles (p.1173): Where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail? 5. Bolling v. Sharpe p. 1174 In view of our decision that the Constitution prohibits the states form maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. 6. Brown v. Board of Education p. 1175 (Brown II) Facts: Court initially permitted gradual integration of public schools in recognition of the difficulties inherent in school desegregation. Issue: Held: In what matter is relief to be accorded? The full implementation of the constitutional principles requires solution of various local school problems, to be solved by school 53 authorities and reviewed by the courts to assure good faith compliance. Case is remanded to the lower courts, who are to act as courts of equity. The competing interests involve plaintiff`s rights to admission at the earliest date and the need for systematic, effective, and orderly removal of obstacles to full integration. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them. At time of the decision, one of the fears was that violence may erupt in some of the areas being desegregated. Local courts would be more able to decide of violence was likely to occur. 7. Loving v. Virginia p. 1176 Facts: Lovings were an interracial married couple. Virginia had an anti-miscegenation statute. Lovings were convicted. Issue: May a state prevent marriages between persons solely because they are of different races? No. Mere equal application of a statute containing racial classifications is not enough to remove the classification from the 14 th Amendment`s proscription of all invidious racial discriminations. STRICT SCRUTINY. Courts must consider whether statutory classifications constitute arbitrary and invidious discrimination. Racial classification, especially in criminal statutes, are subject to the most rigid scrutiny and must be essential to the accomplishment of some permissible state objective to be permitted. Stated has failed to show any legitimate purposes. State court had said that the State`s legitimate purposes were to preserve the racial integrity of its citizens, and to prevent the corruption of blood, a mongrel breed of citizens, and the obliteration of racial pride, obviously an endorsement of the doctrine of White Supremacy. CJ Warren says if a law on its face makes a racial classification, the Court is going to exercise strict scrutiny. See Intimacy and Racial Equality Article Held: 54 8. De jure discrimination may exist even though the law in question is racially neutral on its face: the law may be deliberately administered in a discriminatory way; or the law, although neutral in its language and applied in accordance with its terms, may have been enacted with a purpose (or motive) to disadvantage a suspect class. 9. Yick Wo v. Hopkins p.1180 Facts: City had ordinance which made in unlawful to operate a laundry without the consent of the board of supervisors unless if it was in a brick or stone building. Plaintiff was refused consent by board. While he and 200 other Chinese laundrymen were denied permits, virtually all non-Chinese who made applications received permits. Issue: Does discriminatory application of a statute that is fair and impartial on its face constitute a denial of equal protection under the 14 th amendment? Yes. 14th amendment equal protection provisions apply to all persons, whether or not they are citizens of the United States. Statute appears fair and impartial on its face, but its administration makes illegal and unjust discrimination of a material character among people in similar circumstances. Discriminatory application such as this denies plaintiff equal protection of the law and cannot be sanctioned. Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. Two possible interpretations: (1) Extremely unequal administration of the law/extremely unequal effects of the law (2) One can assume discriminatory intent of law 10. Washington v. Davis p. 1180 Facts: Black applicants to be police officers in the District of Columbia challenged qualification test that allegedly discriminated against blacks in violation of the Fifth Amendment Due Process Clause. Issue: Does a qualification test that has not been established as a reliable measure of job performance and fails a higher percentage of blacks than whites violate the Fifth Amendment Due Process Clause? 55 Held: Held: No. Disproportionate impact on different races resulting from a general qualification test does not, by itself and independent of any discriminatory purpose, establish a constitutional violation. Government action is not unconstitutional solely because it has a racially disproportionate impact; there must be a racially discriminatory purpose to justify invalidation. The purpose need not be express, but it must exist, whether on the fact of the statute or its application. When a disproportionate racial impact is proven, the government must show that the law is neutral on its face and serves proper governmental ends, but the burden is not high. Test here rational review reasonable relation to the need for competent police officers. The essential element differentiating between de jure segregation and so called de facto segregation is purpose or intent to segregate. With a prima facie case made out, the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result. Title VII [of the Civil Rights Act of 1964] sets a higher standard of judicial review. Supreme Court does not apply this level of review under the Constitution. p. 1182 Two requirements to trigger strict scrutiny: 1) Explicit classification by race 2) Purpose and impact/effects Subjective intent of decision-makers or objective intent: Stevens: Sometimes not a good idea to look at subjective intent because there might be one bad apple but that is not the reason the legislature passed it. A law conscripting clerics should not be invalidated because an atheist voted for it. Look at the history of the area: Departures from previous process Departures from sequence of administration or legislative practice Historic factors which seem to have effected the legislature 11. Lawrence Tribe, The goal of the equal protection clause is not to stamp out impure thoughts, but to guarantee a full measure of human dignity for all .Strict judicial scrutiny [should be used] for those government acts that, 56 given their history, context, source, and effect, seem most likely not only to perpetuate subordination but also to reflect a tradition of hostility toward an historically subjugated group, or a pattern of blindness or indifference to the interests of that group. 12. David Crump, Evidence, Race, Intent, and Evil On the question of whether racial discrimination is tied to intent, or whether it can be unconscious and accidental, blacks and whites are sharply divided. African-Americans, in polls, tend to see racism as an ongoing and pervasive condition of American life, while whites tend to think of it as individual actions or attitudes of bigotry that are the exception rather than the rule. Thus, whites tend to use the word racism` to refer to explicit and conscious belief in racial superiority. African-Americans mean something different by racism: a set of practices and institutions that result in the oppression of black people. 13. Memphis v. Greene p.1187 Facts: Citizens of Hein Park, a white residential district, had city close West Drive, a street mainly used by blacks who lived in an adjacent area. Impact was greater on blacks than on whites. Issue: Is closing down of the street, which affects blacks more than whites, a violation of the 13th amendment? No violation. (1) Decision motivated by protecting safety and tranquility of residential neighborhood. (2) Procedures for making the decision were fair and were not affected by any racial or other impermissible factors. (3) City had conferred a benefit on white property but no indication that it would refuse to confer a similar benefit on black property owners. (Marshall): I do not believe that the city has discharged that burden in this case, and for that reason I would hold that the erection of the barrier at the end of West Drive amounts to a badge or incident of slavery forbidden by the Thirteenth Amendment. Held: Diss: 14. Personnel Administrator v. Feeney p.1187 Facts: Massachusetts statute gave veterans an absolute lifetime preference for consideration for state civil service positions. Issue: Does a veteran`s preference program that does not specifically favor males, but in reality benefits males almost exclusively, deny equal protection to women? No. 57 Held: Statute is neutral on its face. Many men are nonveterans and excluded from this preference; many women are veterans and are not excluded. Distinction is between veterans and nonveterans, not men and women. Discriminatory purpose implies more than intent as awareness of consequences. It implies action taken because of, not merely in spite of, its effect. Nothing indicates that the legislature acted in order to prevent women from getting these jobs. Instead, record shows a valid interest in assisting veterans. Con: (Stevens) Numbers of males disadvantaged is 1,867,000 and is sufficiently close to number disadvantaged females 2,954,000 to refute claim that the rule was intended to benefit men as a class. (Marshall) That a legislature seeks to advantage one group does not, as a matter of logic or of common sense, exclude the possibility that it also intends to disadvantage another. Diss: Because of the disproportionate impact, defendant should have the burden to affirmatively prove that sex-base considerations played no part in the adopt of this scheme. 15. Arlington Heights v. Metropolitan Housing Development Corp. p.1190 Facts: Housing Development Corp applied to the village of Arlington Heights for rezoning in order to build units for low-income tenants, many of whom would be racial minorities. Issue: Does the Constitution prohibit a denial of a zoning change request when the denial impacts disproportionately a certain racial group but was made pursuant to standard procedure? Inquiry into the intent of the action is necessary here. Arlington Heights zoning plan and policies existed long before P`s application, and other proposals, not involving racial minorities, have been rejected in the same manner. Without proof of improper intent, mere showing of disproportionate impact on a racial minority is inadequate to the constitutional question. Things to look for: (1) Departures from normal procedural sequence (2) Legislative or administrative history Held: 58 Ely Democracy and Distrust p. 138: Looking at motivation isn`t always way to go, because its usually not the main motivation, and even if it is, can be hidden under other motivations. 16. Castaneda v. Partida p. 1191 Facts: 79% of county had Spanish surnames, but only 39% of grand jury makeup had Spanish surnames. 52.5% on the grand jury list had Spanish surnames as did 50% on the respondent`s grand jury list. Issue: Is there a prima facie case of discrimination against Mexican-Americans? (Blackmun) Yes. substantial underrepresentation of the group constitutes a constitutional violation as well, if it results from purposeful discrimination. If a disparity is sufficiently large, then it is unlikely that it is due solely to chance or accident, and, in the absence of evidence to the contrary, one must conclude that racial or other class-related factors entered into the selection process. Once defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discrimination, and the burden then shifts to the State to rebut that case. 17. United States v. Armstrong p.1193 Facts: All 24 defendants in crack cocaine cases closed by Federal Public Defender in previous year were black. Drug treatment centers find equal number of white crack users as black crack users. Issue: Did US Attorney`s Office abuse its discretion in only having cases against black users? No. Claimant must show that similarly situated individuals of different race were not prosecuted. (Stevens) I am persuaded that the District Judge did not abuse her discretion when she concluded that the factual showing was sufficiently disturbing to require some response from the US Attorney`s Office. Held: Held: Diss: 18. Mayor of Philadelphia v. Educational Equality League p. 1194 Facts: Mayors nominating panel was 11 whites and 2 blacks, but city`s population was 34% black and 60% of students were black. Issue: Did the Mayor racially discriminate in appointments to the city`s Nominating Panel for school board members? 59 Held: No. Statistics were simplistic percentage comparisons in the context of this case; because of the designated qualifications for Panel members, it could not be assumed that all citizens are fungible for purposes of determining whether members of a particular class have been unlawfully excluded. 19. Batson v. Kentucky p. 1194 Facts: When picking jurors for a petit jury, prosecutor discriminated against black potential jurors. Issue: May a prosecutor use race as a means to challenge jurors on the intuitive judgment that the jurors will be partial to the defendant because of their shared race? No. After a prima facie case has been made out, burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Prosecution`s explanation need not rise to the level justifying exercise of a challenge for cause. But prosecutor may not rebut the defendant`s prima facie case of discrimination by stating merely that he challenged jurors of the defendant`s race on the assumption or his intuitive judgment that they would be partial be partial to the defendant, because of their shared race. Diss: (Renquist) Nothing unequal about this as long as State uses peremptory challenges to strike whites in white defendant cases, Hispanics in Hispanic defendant cases, etc. Held: 20. Richmond v. J.A. Croson Co. p. 1241 Facts: City of Richmond requires prime contractors on city projects to set aide at least 30% of its subcontracts to minority business enterprises (MBEs). Blacks made up 50% of population of city, and five of nine seats on City Council are held by blacks. Only 0.67% of percentage of contracts go to minorities. However, no discrimination on city`s part or any of the prime contractors. Issue: May a city adopt a set-aside program favoring minority owned contractors on city projects when there is no evidence of direct discrimination on the part of the city or its prime contractors? No. STRICT SCRUTINY While Congress could require such set-aside programs under Fullilove without making specific findings of discrimination, they are 60 Held: given that power under the 14th amendment. Cities do not have the mandate of the 14th amendment. City under the Equal Protection Clause could eradicate the effects of private discrimination within its own legislative jurisdiction, but this requires that the discrimination be identified with the particularity required by 14th amendment. Equal Protection Clause protects individual persons; P`s plan denies certain citizens opportunity to compete for a fixed percentage of public contracts based solely on their race, and thereby implicates the personal rights of the excluded persons. No difference in level of scrutiny between remedial and nonremedial programs. STRICT SCRUTINY. Strict scrutiny is applied to all classifications so you can determine what kind of classification it is (remedial v. non-remedial) Not important to look at number of people in town, but need to look at those with the proper qualifications. Plan covers other races (Spanish speaking, Oriental, etc), but there is no evidence of discrimination against them. Not narrowly tailored enough less restrictive means available. 21. Adarand Construction, Inc. v. Pena p.1252 Facts: P submitted a low bid on a federal road project, but contractor chose another bid owned by a Hispanic owned company, because contractor would get more money for hiring a Hispanic business. Issue: Is the federal government`s use of race-based classifications subject to strict scrutiny even for affirmative action? Yes. Three general propositions with respect to government racial classifications: (1) Skepticism (2) Consistency (3) Congruence Taken together, these three propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny. Held: 61 This does not preclude the government from acting in response to the lingering effects of racial discrimination. When race-based action is necessary to further a compelling interest, it is permitted as long as it satisfies the narrow tailoring test of strict scrutiny. Con: (Thomas) Affirmative action programs undermine the moral basis of the equal protection principle and arouse resentment by those not benefited. The targeted minorities are stamped with a badge of inferiority and are prompted to develop dependences or an attitude that they are entitled to preferences. (Stevens) There is a clear distinction between policies designed to oppress minorities and policies designed to eradicate racial subordination. Diss: 22. Grutter v. Bollinger p.166 Supplement Facts: University of Michigan Law School case. Con: (O`Connor) 23. Gratz v. Bollinger p. 180 Supplement Facts: University of Michigan Law School case. XV. Gender Discrimination 1. Reed v. Reed p. 1261 Facts: State statute which preferred males to females when two persons were otherwise equally entitled to be the administrator of an estate. Issue: Held: May a state prefer men to women just to reduce the court workload? No. A classification, must be reasonable, not arbitrary and must rest upon some ground of difference having a fair and substantial relation to the object of the law. The question is whether the classification bears a rational relationship to a state objective that is sought to be advanced by the law. Rationality Review To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by equal protection. 2. MacKinnon, Sexual Harassment of Working Women It would have been considerably more rational, factually based, not arbitrary, and substantially related to the statutory purpose to presume that men would 62 be better administrators if most women were illiterate and wholly excluded from business affairs. Yet this reasoning would reveal a society in severe need of prohibitions on sex discrimination. 3. Frontiero v. Richardson p. 1262 Facts: Federal statute permitted males in the armed services an automatic dependency allowance for their wives but required servicewomen to prove that their husbands were dependent. Issue: May the military require that servicewomen but not servicemen make a showing that their spouses are actually dependent before claiming them as dependents? No. Classifications based upon sex are included among those that are inherently suspect and therefore subject to close judicial scrutiny. Intermediate Scrutiny Sole justification lies in administrative convenience, which is hardly a significant governmental interest. Statutes involve arbitrary discrimination and deny due process. Case moves gender discrimination from rationality review to intermediate scrutiny. Interestingly, Frontiero was argued during the time when Congress was strongly considering (and eventually passing) the ERA. This seems to have affected some Justices. Justice White wrote in a note to his colleagues "I would think that sex is a suspect classification, if for no other reason than the fact that Congress has submitted a constitutional amendment making sex discrimination unconstitutional". On other hand, Justice Powell was concerned that "democratic insituttions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes". "Politically, though, intermediate scrutiny was also a compromise between Justice Brennan's effective embrace of legal feminism's dual strategy, and the position of justices who, like Justice Powell, believed that the ERA's pendency counseled restraint". -Serena Mayeri, Constitutional Choices: Legal Feminism and Historical Dynamics of Change 4. John Ely, Democracy and Distrust Held: 63 Most laws classifying by sex [probably pre-date women`s suffrage]: they should be invalidated. To put on the group affect the burden of using its recently unblocked access to get the offending laws repealed would be to place in their path an additional hurdle that the rest of us do not have to contend with in order to protect ourselves -- hardly an appropriate response to the realization that they have been unfairly blocked in the past. If, however, women don`t protect themselves from sex discrimination in the future, it will be because for one reason or another substantive disagreement or more likely that assignment of a low priority to the issue they don`t chose to. 5. Craig v. Boren p. 1265 Facts: Oklahoma statute that denied beer sales to males under age 21 and females under age 18. Issue: May a state properly impose gender-based differentials in regulating sales of alcoholic drinks? To withstand constitutional challenge, classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives. Here, the state objective traffic safety is important but the relationship is not close. Diss: (Renquist) Men challenging a gender-based statute unfavorable to themselves should not be able to invoke a more stringent standard of review than normally pertains to most other types of classifications, since men, as a group, have no suffered the type of prior discrimination that has always supported a standard of special scrutiny. Nor is the interest involved here beer purchasing fundamental in the constitutional sense of invoking strict scrutiny. Should use here the rational basis test rather that strict scrutiny. Held: 6. United States v. Virginia (VMI Case) p. 1269 Facts: VMI wont let women in. Uses an adversative method in teaching/physical activities. VMI proposed a separate but parallel program for women, called Virginia Women`s Institute for Leadership (VMIL), but would not have adversative method. Issue: If a state-sponsored single-sex school denies equal protection, may the state offer a parallel program for the opposite sex, while retaining the single-sex status of the school? No. Held: 64 Those who defend state-sponsored gender discrimination must show an exceedingly persuasive justification for that action. VMI has not shown any exceedingly persuasive justification for its exclusion of women, not that the discriminatory means used are substantially related to the achievement of important governmental objectives. While most women may not choose VMI`s adversative method, most men would also not choose it. The state simply cannot constitutionally deny entrance to women who have the will and capacity to attend VMI. Skeptical Scrutiny stronger form of Intermediate Scrutiny 7. Valid Justifications for Same-Sex Discrimination Remedial Purpose Schools could justify through diversity of opportunities Public v. Private 8. Geduldig v. Aiello p. 1275 Facts: California`s disability insurance system did not provide health care for pregnancies. Issue: Held: May a state exclude pregnancy from its disability insurance program? Yes. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is sex based. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition. 9. Dothard v. Rawlinson p. 1276 Facts: Women prison guards could not serve in contact positions in all-male prisons. Issue: Held: May the state exclude women from certain roles in prisons? Yes. In this environment of violence and disorganization, it would be an oversimplification to characterize the exclusion of women as an exercise in romantic paternalism`. 65 A woman`s relative ability to maintain order in a male, maximum-security, unclassified penitentiary could be directly reduced by her womanhood. There is a basis in fact for expecting that sex offenders who have criminally assaulted women in the past would be moved to do so again if access to women were established within the prison. 10. Michael M. v. Superior Court p.1276 Facts: California statutory rape law makes men alone criminally liable for the act of sexual intercourse. Issue: May a state`s statutory rape law permit prosecution only against members of one sex? A legislature may not make overbroad generalizations based on sex that are entirely unrelated to any differences between men and women or that demean the ability or social status of the affected class. However, legislation may realistically reflect the fact that the sexes are not similarly situated in certain circumstances. Statute is sufficiently related to the state`s objectives. Diss: (Brennan) While the desirability of achieving the state`s asserted statutory goal is unquestionable, this statute is not substantially related to success. California has failed to prove that its gender-based law is more successful than would be a gender-neutral law. A gender-neutral statutory rape law is potentially a greater deter=rent of sexual activity than a gender-based law, for the simple reason that a gender-neutral law subjects both men and women to the criminal sanctions and thus arguably has a deterrent effect on twice as many potential violators. 11. Rostker v. Goldberg p.1281 Facts: Military Selective Service Act (MSSA) provision authorizes the President to require the registration of males and not females. Issue: Held: May Congress restrict draft registration to males? Yes. Congress determined that the purpose of registration was to prepare for a draft of combat troops. Women are not eligible for combat. Thus, the exemption of women from registration is not only 66 Held: sufficiently but also closely related to Congress`s purpose in authorizing registration. Since men and women are not similarly situated with respect to combat, the classification challenged does not violate the United States Constitution. Diss: This is not a conscription statute, as the majority seems to believe, but merely a registration statute. D has failed to carry its burden of showing that completely excluding women advances important governmental objectives. 12. J.E.B. v. Alabama p.1284 Facts: In paternity suit, one party uses peremptory strikes to remove potential male jurors. Issue: Held: Are gender-based peremptory challenges unconstitutional? No. When state actors exercise peremptory challenges in reliance on gender stereotypes, they ratify and reinforce prejudicial views of the relative abilities of men and women. Con: Diss: (O`Connor) Problem will be in things like rape cases, where women are more likely to convict rapists then men. (Scalia) The hasty reader will be surprised to learn, for example, that this lawsuit involves a complaint about the use of peremptory challenges to exclude men from a petit jury. 13. Califano v. Webster p.1286 Facts: Social Security Act allowed higher old-age benefits to female wage earners than to similarly situated male wage earners. Issue: May Congress discriminate between men and women in order to compensate women for adverse past discrimination? Yes. Reduction of the disparity in economic condition between men and women caused by the long history of discrimination against women has been recognized as an important governmental objective. This scheme is substantially related to achievement of that proper objective. The level of benefits is directly related to the level of past earnings. If women`s past earnings were comparatively low because of discrimination, it is proper to correspondingly increase their benefits. 67 Held: 14. Orr v. Orr p. 1288 Facts: Alabama statute that provided that only husbands may be required to pay alimony. Issue: May a state discriminate on who may be required to pay alimony based on sex? No. Two legislative objectives of statute. (1) to provide help for need spouses, using sex as a proxy for need, and (2) to compensate women for past discrimination during marriage, which assertedly has left them unprepared to fend for themselves. Under the statute, individualized hearings at which the parties` relative financial circumstances are considered already occur. There is no reason, therefore, to use sex as a proxy for need. Needy males could be helped along with needy females with little if any additional burden of the state. 15. Mississippi University for Women v. Hogan p.1288 Facts: MUW excluded males from its nursing school. Denied admission to Hogan, a male. Issue: May a state exclude males from enrolling in a state-supported professional nursing school? Held: No. Because MUW`s policy discriminates on the basis of gender, it is subject to strict equal protection scrutiny. STRICT SCRUTINY. MUW must show that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. MUW claims that its policy compensates for discrimination against women and is educational affirmative action. While a compensatory purpose may justify an otherwise discriminatory classification in some situations, this argument is unpersuasive with respect to the nursing school. Women have earned the large majority of nursing degrees in the state, and in the nation as a whole. The actual effect of D`s policy is to perpetuate the stereotypical view of nursing as a women`s job. Held: 68 Diss: (Powell) Majority errs by assuming the equal protection standard is appropriate here, where the intent was to expand women`s choices. Hogan`s only real claim is that the colleges open to him are located at inconvenient distances and that he has a right to attend a college in his home city. XVI. Sexual Orientation 1. Romer v. Evans p. 1312 Facts: Colorado voters adopted an amendment to the Colorado Constitution that prohibited all legislative, executive, and judicial action at any level of state or local government designed to confer a protect status upon, or to allow claims of discrimination by, any person based on homosexual, lesbian, or bisexual orientation. Issue: May a state prohibit government action that confers a protected status upon, or allows claims of discrimination by, any person based on homosexual, lesbian, or bisexual orientation? No. State claims that the amendment simply puts homosexuals in the same position as all other persons, that it does no more than deny homosexuals special rights. However, the actual effect of the amendment is to put homosexuals in a solitary class with respect to transactions and relations in both the private and governmental spheres. It imposes a special disability upon these persons by forbidding them to seek or enjoy the safeguards against discrimination that other groups can enjoy. The amendment is not at all continuous with its purported reasons that it cannot be explained by anything but animus toward homosexuals. As such, it lacks a rational relationship to legitimate state interests. Case only uses rationality review. 2. Lawrence v. Texas XVII. Free Exercise Clause (Religion) 1. Reynolds v. United States p.1092 Facts: Federal law made polygamy illegal as applied to a Mormon whose religious duty was to practice polygamy. Issue: May Congress deprive people of practicing polygamy when it is required by their religious beliefs? Held: 69 Held: Yes. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. Belief-Action Distinction 2. Cantwell v. Connecticut p. 1092 Emphasized the distinction between religious opinion or belief and action taken because of religion. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. Free exercise embraces two concepts, -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. The freedom to act must have appropriate definition to preserve the enforcement of that protection although the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. 14th Amendment makes the free exercise guarantee applicable to the states. 3. Hobbie v. Unemployment Appeals Commission p.1093 Facts: Hobbie was discharged when she refused to work on Saturday, which was the Sabbath day of the religion she converted to after she had begun working. The Unemployment Appeals Commission denied P`s application for unemployment compensation. Issue: May a state deny unemployment benefits to a person who is discharged for refusing to work on her Sabbath day? No. Disqualification for unemployment benefits of a person who refuses to work on the Sabbath forces the person to choose between following the precepts of her religion and abandoning those precepts to accept work. Government imposition of such a choice burdens free exercise of religion as much as would a fine imposed on Saturday worship. State may not burden religion by conditioning the receipt of an important benefit upon conduct proscribed by a religious faith, or by denying such a benefit because of conduct mandated by religious belief. Held: 70 4. Gillette v. United States p. 1097 Facts: Congress wants to conscript people who oppose a particular war on grounds of conscience or religion. Issue: Does the free exercise clause forbid Congress from conscripting persons who oppose a war based on conscience or religion? No. Conscription laws are not designed to interfere with any religious ritual or practice, and do not work a penalty against any theological position. The incidental burdens felt by persons in petitioners` position are strictly justified by substantial governmental interests that relate directly to the very impacts questioned. And more broadly, of course, there is the Government`s interest in procuring the manpower necessary for military purposes. 4. Sherbert v. Verner (not in book?) Any incidental burden of the free exercise of religion has to be justified by a compelling state interest in the regulation of a subject within the State`s constitutional power to regulate. Cases are Sherbert reiterate where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and violate his beliefs, a burden upon religion exists. Held: 5. Employment Division v. Smith p. 1099 Facts: Oregon made it a crime to use peyote. Smith dismissed from his job for using peyote and denied unemployment benefits because his dismissal was due to misconduct. Issue: May a state make criminal certain conduct that is part of a religious organization`s ritual? Yes. In Gilbert, the conduct which government could not ask person to forgo was legal. Here, however, the conduct is prohibited by law. States cannot ban acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief they display, because this would constitute a prohibition of the free exercise of religion. If prohibiting the exercise of religion is merely 71 Held: an incidental effect of a generally applicable and otherwise valid law, the First Amendment is not implicated. Governmental actions that substantially burden a religious practice must be justified by a compelling government interest. A number of States have made an exception to their drug laws for sacramental peyote use. But to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. 72 ...
View Full Document

This note was uploaded on 03/05/2008 for the course LAW conlaw taught by Professor Meyler during the Fall '05 term at Cornell University (Engineering School).

Ask a homework question - tutors are online