1. What is the Classification?
To prove existence of classification:
1. Exists on its face of the law
2. Demonstrate that a facially neutral law has a discriminatory impact and discriminatory purpose (only to race)
Immutable characteristic, based on race, national origin, or another 'discrete and insular minority'
-All restrictions which curtail the civil rights of a single racial group are immediately suspect subject to the most rigid scrutiny.
-Temporary exclusion upheld b/c national secruity, wartime and hardships are part of war
Loving- Miscengenation statutes rely solely on distinctions drawn according to race. Based on assumptions of inferiority of blacks to whites.
Feeney- Veterans preference for civil jobs over non-verterans: Law not passed w/ intention to keeping women from jobs: Purpose- in spite of the effects on women not b/c of the effects
Rokseter v. Goldberg- draft for men only okay, defer to military judgments;
Romer v. Evans (repealed all gay protection laws)
Obergefell -Relies on fundamental right to marry
Cleburne- law reflects an irrational prejudice against them; justifications city put forth were either not legitimate purposes or the ordinance was not a reasonable way of accomplishing those goals
Not suspect, lack of immutability b/c person chooses to commit crimes (but is it truly voluntary or necessary/positive law limits ex-cons cannot vote to help themselves)
-Laws classifying them are often upheld, not a classically protected group
Undocumented immigrant children
Plyer v. Doe
Murgia No history of unequal treatment of elderly, thus rational basis
Rodriguez- Not a suspect classification. There is no actionable equal protection issue based on low-income status.
De Jure violates 14th amdt-
Brown- Explict segregation
Keyes- Inferrable from numerous racially targeted actions by school officials
See below (Voluntary desegregation measures)
Right to Marry
*Zablocki v. Redhail (child support): Even if state has substantial state interst , the law must be sufficiently related to that end to not violate EP.
Discrete and Insular Minorities
Carolene Products fn. 4- Discrete and insular minorites require additional protection from the courts.
Dandridge v. WIlliams- Wealth distinctions are decided on a rational basis only
Laws that are facially neutral as to race and national origin will receive more than rational basis review only if there is proof of discriminatory intent or purpose
Washington v. Davis (black cops): Refused to raise scrutiny b/c discriminatory impact is not enough, must show explicit evidence of discriminatory intent.
-Argument that prior discriminatorion disadvantaging race fails b/c its a slippery slope calling into Q other too many other statutes
Arlington Heights (racial permit denial)- Proof of discriminatory intent could be shown through:
1. History of discrimination
2. Evidence that the creators of the law intended that it be implemented in a discriminatory way
3. Discriminatory Implementation
Yick Wo (chinese laundry)- Not about the purpose of the policy itself but rather about whether the facts of the implementation are as troubling and extreme enough in comparison to Yick Wo to be unconstitutional
Gomillion/Yick Wo: very rare but court can Infer intent from implementation
McCleskey v. Kemp (death row): Even with statistics, def must prove that the decisionmakers (prosecutor/jury bias) in his case acted with discriminatory purpose, or else no EP violation. (Each jury is a sep. decisionmaker, unlike same Yick Wo where same body decides all of the cases)
Disparate Impact + Discriminatory Intent
Evidence of Discriminatory Purpose Burden Shifts:Hunter v. Underwood (vote/crime MT)
-If a law is racially netural, a challenger must show a discriminatory purpose and a discriminatory effect.
-If such proof is provided, the govt has the oppty to demonstrate that it would have taken the same action regardless of race. If Court accepts govt's justification, then rational basis review.
-If Ct. believes that there is a discr. purporse, the law is treated as a race classification, and will be invalidated
-Strict scrutiny is unneccessary b/c persuading the Ct. that purpose behind law is discriminatroy forecloses the govt's ability to show a compelling purpose for it.
2. What is the appropriate level of scrutiny
Once classification is id'd, the next step is to id the level of scrutiny to be applied. SC has made clear that the differing levels of scrutiny will be applied depending on discrimination.
The law is upheld if it is proved necesary to achieve a compelling government purpose.
-The govt must have a truly sigfiicant reason for discriminating, and it must show that it cannot achieve its objective through any less discriminatory alternative.
-The govt has the burden of proof under strict scrutiny, and the law will be upheld only if hte govt pershuades the ct that it is necessary to achieve a compelling purpose.
-Strict scrutiny is virtually always fatal to the challenged law
1. Discrimination based on race or national origin
2. Discrimination against aliens (several exceptions exist)
Law is upheld if it is substantially related (important, need not be necessary) to an important govt purpose.
-Govt has the burden of proof
1. Discrimination based on gender
2. Discrimiantion against nonmarital children
Law will be upheld if it is rationally related to a legitimate govt purpose.
Need not be compelling, important or necessary. The means chosen only need be a rational way to accomplish the end.
-Challenger has the burden of proof under rational basis review
-Minimum level of scrutiny that all laws challenged under EP must meet.
Doesn't pass rational basis
Moreno, Romer v. Evans- Law motivated by animus against a particular identifiable group in unconstitutional.
Romer v. Evans
-Rpealed all gay protection laws
Voluntary desegregation measures are a form of affirmative action
Current case law supports the notion that the board may freely revoke such measures.
Crawford-CA const amendment overriding CA ct. demanding districts with de jure segregation take reasonable steps, was permissible b/c law was not a racial classification and states could say they would do no more than the 14th amdt. requires (only limited if school board when actions were greater than those required to comply w/ 14th amdt).
Hunter v. Washington-limited the powers of the school board in all instances from using race unless ct. ordered.
Achieving racial diversity as a compelling interest in the context of elementary and high schools.
-Kennedy Concurrence: race could be taken into account as a means of ensuring equal opportunity or combatting racial isolation. If high degree of de facto segregation, achieving racial diversity should be regarded as a compelling interest.
-Social and educational benefits that accrue from a diverse student body.
-1. Strategic site selection
2. Drawing attendance zones with general recognition of teh demographics of neighborhoods;
3. Allocating resources for special programs;
4. Recruiting students and faculty in a targeted fashion;
5. Tracking enrollments, performance, and other statistics by race
1. Divresity is a compelling interst in education and universities may use race as a factor to ensure diversity
2. But quotas or numerical quantification of benefits is impermissible. (Set aside quota of 16 students)
-Colleges have a compelling interst in creating a diverse student body, and they may use Race, as one factor, among many to benfit minorities and enhance diversity, strict scrutiny.
Gave GC's on govt projects a financial incentive to hire minority businesses, strict scrutiny should apply
1. Strict scrutiny of affirmative action admissions processes,
2. Judicial deference to reasoned explanations of the decision to pursue student body diversity, and
3. No judicial deference for the determination of whether the use of race in admissions processes is narrowly tailored. It then noted that the University of Texas' combined Top Ten Percent-holistic admission policy is unique and data on resulting diversity was limited; however, it noted that the university should regularly evaluate available data and "tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest."
-University has an ongoing obligation to use available data "to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary."
No workable/less restrictive race-neutral alternatives would produce the educational beneifts of diversity.
What if affirmative action measures are revoked?
Can violate the 14th amendment if new meausures
1. Resulted in some De Facto racial segregation
2. Revocation is unconstituional if that action shows itself to be motivated by discriminatory intent
Keyes: absent laws requiring school segregation, pliantiffs must prove intentional segregative acts affecting a substantial part of the school system.
Restricts Affirmative Action
Schuette: Upheld St. law that prohibited state action from discriminating or giving preferences based on race or gender in education, contracting, or employment.
Hunter v. Erickson-Ordinance is unconstitutional b/c it req'd laws regulating real estate transactions "on the basis of race, color, religion, national origin, or ancestry must first be approved by a majority of the electors voting on the question at a regular election before ordinance shall be effective
- upheld Amdt barred preferential treatment by ordinary legislative action to certain suspect classes
-Gov't attempts to make it more difficult to enact legislation or policies that would benefit racial minorities.
-The political process docrtine has little left after Schuette.
Poltical Process Doctrine
Narrowed by Schuette
Manner in which statute was adopted was financed, injury or animus toward a particular group, can cause the statute to be invalid because of the way in which it was promulgated.
Right to Contract
Economic Substantive Due Process
-Deprive one of right to pursue trade/contract w/ others
-Court has made it clear that economic regulations, laws regulating business and employment practices, will be upheld when challenged under DP clause so long as they are rationally related to serve a legit gov't purpose.
-State requirement that new prescriptions to fit lenses into new frames, but ready to wear sellers were exempt. If law had some rational purpose (law protected health and encouraged people to get eyes checked), the court would be extremely deferential.
- Upheld law prohibiting a person to engage in debt adjusting business, except incident to the practice of law even though effect put out debt adjusters who were not lawyers out of business. Lochner doctrine has been discarded. DP clause does not protect a right to practice trade/contract even if anticompetitive, gives deference to legislature.
Privileges and Immunities
No state "shall abridge the privileges or immunities of citizens of the US.
- Argued this is appropriate place for safeguarding substantive rights.
Slaughterhouse Cases- However, Ct gave the clause an extremely narrow interpretation that has prevented it from being used to safeguard individual liberties. Thus Ct turned to DP clause to protect substantive rights beyond navigating waters and traveling state to state.
-Thus, the Privileges and Immunities Clause of the Constitution protected only those rights guaranteed by the United States, not individual states.
-Ct has rarely invoked. Justifies the court's decisions for safeguarding unenumerated liberties.Griswold v. Connecticut- Goldberg's concurrence, relied upon to justify invalidating a law prohibiting use of contraceptives
Regulation go too far, it can look like a gov't taking.
Should extreme deference be overruled b/c it goes too far? Should there rational basis with bite (look to alternatives b/c overinclusive/underinclusive)?
If right is protected under EP, issue is whether the govt's discrimination as to who can exercise taht right is justified by a sufficient purpose
-If law denies the right to some, while allowing it to others, the discrimination can be challenged as offending ep or the violation can be objected to under due process
-Gov't distinguishes among peple based on specific characteristics, or exercising right to procreate, vote, access to judicial process, and interstate travel
If right is safeguarded under due process, the constitutional issue is whether the gov'ts interference is justified by a sufficient purpose.
-If law denies right to everyone, then due process would be best grounds for analysis.
Not a fundamental right
Right to Procreate
Skinner- Struck down criminal 3 strikes, sterilization law. (exception for white collar crime: EP violation)
Right to Marry
Loving v. Virginia (interracial):
Zablocki v. Redhail (child support): Decision to marry is "placed on the same level of importance as decisions relating to procreation, childbrith, child rearing, and family relationships"
No Right to Education
Rodriguez- education itself is not a fundamental right; (But see Plyer-EP argument quasi-suspect class)
Right to Vote (Participate in political process)
Harper- Poll tax;
Dunn- 1 yr residency
Davis v. Bandemer- political question upheld
City of Mobile v. Bolden- No right to gete your candidate elected (But See, Rogers/Gomillion)
Right to Privacy
Right of Privacy
Under SDP, there is a gen. right to privacy
Within this right to privacy is the right to decide matters that are very personal: reproduction, sexual orientation, how to raise a family, refusing medical treatment.
-If a court finds a fundamental right, the regulation is subject to strict scrutiny. Otherwise it is subject to rational basis.
Individual must be free from unwarranted gov'tl intrusion into matters fundamentally affecting his/her person.
-Marital Privacy (contraception): privacy in such a relationship was fundamental, state could not impose regulations to interfere with it.
-Sale of bc pills to unmarried people;
Individual's right, married or single, to control reproduction as a fundamental right,
EP- treats marrieds and unmarrieds differently: RB- no legit purpose, unreasoable to prescribe pregrancy and birth of unwanted child as punishment for sex; not valid health measure
Roe v. Wade
- Right to privacy also encompasses a woman's decision about what to do with her own body
Right to direct upbringing and education of children
Washington v. Glucksberg
No fundamental right to assisted suicide or right to self-destructive medical treatment b/c no history supporting such a right. Govt has a legit interest in preservation of life;
-No right to access assistance to medical treatment that the state forbids
Right to refuse medical treatment (but not fundamental.): legit seeking to safeguard the personal element of this choice through the imposition of heightenened evidentiary req't. (But smallpox, anti-psychotic inmates is okay)
One current running through many of the important abortion decision is how dependent the analysis is upon changes in medical technology.
Original trimester framework was tied to the fact that at earlier stages of the pregnancy-especially the 1st trimester- the fetus was not viable, and therefore the gov'ts interest in the fetus' life was lower.
Casey (joint plurality)
In part due to medical advances, focus is on viability whenever it occurs during the pregnancy instead of the rigid trimester framework.
-At viability, the state's interest in the life of the fetus are much greater.
-Established the "undue burden" std. for measuring whether restrictions on abortion are constiutional.
-Any restrictions which are found to impose an undue burden on a pregnant woman will be struck down.
-Gov't has a compelling interest in preserving/protecting the fetus post-viability.
Facts: Upheld a requirement for women who seeking abortions must wait 24 hours after receiving brochures of non-misleading info to get the procedure (like the profound respect for human life), not that the woman must read the brochures to receive treatment..
law with the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion imposes an undue burden on a woman’s right to have an abortion and is unconstitutional.
Facts: Texas law requiring doctors to have admitting priviliges to give abortions and for abortion clics to have ambulatory surgical centers b/c the regulation only impacted the health of less than .25% of all abortions but closed most abortion clinics.
State can compel factualspeech that is reasonably related to a legitimate state interest.
Making the woman wait before terminating her pregnancy without any health exceptions is unconstitutional
Other serious obligations (vague/broad).
-Interest the woman has in not being forced to see a pregnancy brought to term if conception was the result of rape or incest.
Constitutional due process right to refuse unwanted medical treatment.
Gender-based laws since only women get pregnant.
-Intermediate Scrutiny (Craig): whether teh gov't has an important interest, and whether the means are substantially related to the ends it seeks.
Courts have stayed away from this mode of analysis in abortion cases, instead sticking to the viability/undue burden framework
Respect for human life is legit. gov't interest.
Maher v. Roe
Gov't can favor childbirth over abortion
Level of intrusion over bodily integrity, concerning both privacy and liberty prongs of substantive due process, is akin to being in slavery. More broadly, women's right is invaded. Should have the right to matters of childrearing and when to raise a family (Eisenstadt;Carey).Even narrowly, then it is equally clear that women haave the right not to be an incubator.
Smith: Free exercise does not relieve an individual’s from the obligation to comply with a “valid an neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)
State Law- Unless state has RFRA-type statute, mandated accomodation claims would lose.
Fed'l Law-RFRA is applicable, necessitating a strict-scrutiny like anaylsis of the imposition
-States are free to enact statutes that voluntarily (as a permissible accomodation) raise the level of scrutuiny to be utilitzed in apply laws of general applicability to persons making free speech claims. That is what Congress has done with RFRA w/ regard to federal law, and has been upheld by S.C.
RFRA violated when CHCs provide insurance coverage for contraceptives tht violates itw owners' religious beliefs.
-Corporations can claim to have religious beliefs and religious free exercise, ther were less restrictive alternatives--congress could pay, or allow to opt out.
Town of Greece- Govt cannot act as an arbiter of religious speech;
Lemon test- Lacks any clear secular purpose
Note: Endorsement of particular religion can interfere with the free exercise of everyone else's religion
McGowan v. Maryland- Sunday laws have been upheld by the court, so long as adminstered w/ secular purpose and effect (providing a uniform day of rest)
Braunfeld v. Brown- even disadvantaging jewish people's business, general law and does not impose a burden any more than possible
-Gov't Display-Would a reasonable observer seeing the display conclude that the govt was endorsing a religion in general or in particular
Lynch v. Donnelly- mere recognition of a holiday
Van Orden v. Perry- Surrounded by other items reflecting a wider array of faiths and cultures and serves an obvious civic purpose
McCreary County- display gives special and permanent prominence to a religious symbol of a particular sect
Under 1st amdt. jurisprudence,
When the gov't regulates speech, it must be determined if it was content based or content neutral
Gov't restricts the communicative impact of the speech. (doesn't like what ad contains, could place ad w/ differnt content)
Reed v. Town of gilbert
Time, Place, Manner Restrictions
Ability of the govt to regulate speeh in a public forum ina manner that minimizes disruption of a pubic place while still protecting freedom of speech.
Madsen- fixed amt. of feet, noise restrictions, struck down sign bans
Schenck- buffer zones cannot be "floating" following people leaving.
Hill- unlawful to "knowingly approach" w/o that person's consent
Allowing similar type of content, but regulating it b/c it conflicts with own views
What is speech?
Chaplinsky: Unprotected under dangerous ideas or low-value speech
If Protected: Regulation must advance a compelling strong interest and it is narrowly tailored to that interst. It must show that there are no less restrictive means to advance the interst and this ban is necessary to achieve that objective.
Categories of Unprotected speech
Can be regulated: fighting words, libel, private info, commercial advertising, obscenity, lewd/offensive speech, hate speech, or child porn
Brandenburg Test: Unprotected speech if
1. Express advocacy of a law violation;
2. Advocacy must call for an immediate law violation
3. Law violation must be likely to occur
Holder v. Humanitarian-Statute at issue prohibited providing "material support" to organizaations classified as terrorists. Material support does not encompass speech, so no 1st amdt violation.
Dennis-exception (plurality/communism): Probability material, imminence not required: Balancing approach if the gravity of the potential evil/harm enough (overthrow of govt), speech advocating it can be punished w/o any showing of likehood or imminence
Virginia v. Black- particularly O'Connor's concurrence, state may punish true threats even if in doing so the state is distinguishing b/w different types of intimidating acts.
9th circuit planned parenthood- state may punish statements which would be objectively seen as a threat and which would be understood as a serious intent to harm or assult, whether or not the party inteded the harm to actually occur
Elonis-More than negligence
Provokes a hostile audience reaction
Skokie- Speech must anger people to the point that it would create a clear and present danger (imminence) of a riot.
-Audience must be controlled before the speaker
Feiner- Only once held that speaker could be stopped, every other case has been distinguished as "far cry from Feiner"
Cohen- Must be directed at a person, not able to avert their eyes; Must rise to the level of words that by their very utterance would inflict injury or tend to incite an immediate breach of the peace or provoke an avg person to retaliate
R.A.V.- burning a cross on someone's lawn
Discloses classified info
Prior Restraint NYT- Gov't has a heavy burden against prior restraint and it has to cause grave and irreparable danger.
Prior restraints are much more restrictive b/c speech never get disseminated at all, so courts are very weary so subject it to very high level of scrutiny
Disclosure of private info
1. The average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; b. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and c. The work, taken as a whole, lacks serious literary, artistic, political or scientific value
Zoning Ordinances- Renton
Cohen- "Fuck the Draft" - will be protected unless people cannot avert their eyes
Vague and Overbroad
- Must have a limiting principle (tied to a specific crime, or specific description of category)
Perry- the constitutionality of a regulation of speech depends on the place and the nature of the govts action.
1. Traditional Public Forum:
-Public Streets and parks are the quintessential public forum;
-Govt may not prohibit all communicative activity
1. If state enforces a content-based exclusion, must show that regulation is necessary to serve a compellling govt interst and is narrowly drawn to achieve that end
2. If regulating speech based on time, place, manner must survive strict scrutiny and be content neutral and narrowly drawn.
Schneider (blocking traffic)- legit gov't interest in preventing littering was not enough to close off public to speech
Mosley (picketing race disc. labor exception)- Different treatment violated EP (must treat labor/race picketing equally) and 1st amdt as unconstitutional subject matter restriction on public sidewalks
Grayned- no picketing during school hours served a compelling interest narrowly drawn
2. Designated Public Forum
-Gov't must be both subject matter and viewpoint neutral and must have an important interest in regulating speech
-Cornelius- creation of a designated forum has to be intentional. Cases are inconsistent. Whether is a designated forum ought to be based on how wide the entity involved opens up for speech. -Speech restrictions are subject to the same strict scrutiny as restrictions in a traditional public forum
3. Limited Public Forum:
Christian Legal- Choices on subject matter and speaker id must extend access to the limited forum "only to other entities of similar character"
-Regulation allowed as long as it was reasonable and viewpoint neutral
4. Non-Public Forum: Collapsed nonpublic into limited public forum since the test for both would be the same: Govt regulation is allowed if it is reasonable and viewpoint neutral.
Adderly v. Florida- Can prohibit speech in areas outside prisons and jails. (also not public utility poles, military bases)
Rust v. Sullivan (no fed funds for abortion): Dr.'s not compelled to adopt the government's speech (through activity),
-Gov't could decide what activity to subsidize, what it beleives to be in public interest. Does not infringe on a fundamental right/govt doesn't have to fund abortion
Blackmun dissent- discriminates on the basis of viewpoint.
Issues: mother's life in danger/gag rule on dr's credibility
Pleasant Grove City v. Summum (religious statute at park)
Walker v. Texas(Conf. lic. plate)
Matal v. Tam (TM of slant eyes)
-Govt may not expressly condition a benefit (federal funds) on the req't that the recipients forgo constituionally protected speech.
AID v. Open Society International (profess specific opinion/belief about prost. goes beyond limits of fed'l funding)
-Undermines Rust by holding speech in that case was an unconstitutional condition on Open Society's receiving a federal grant (adopt a particular view of political concern)
Rosenberger- cannot condition funds if speech has religious content (viewpoint discrimination)
LSC v. Velasquez- litigation is forum, all remedies must be available to clients; viewpoint discrimination
Regulating non-verbal conduct, with an incidental affect on speech
-When speech and nonspeech eleements are combined in same conduct, a sufficiently important gov'tl interset in regulating hte nonspeech aspect can justify incidental limits on 1st Amdt. freedoms;
O'Brien (draft card burning):
1. Must be within constitutional power of the government;
2. It must further an important or substantial governmental interest;
3. The governmental interest must be unrelated to the suppression of free expression; and
4. The incidental restriction on 1st A freedoms must not be greater than is essential to the furtherance of that interest
NYT v. Sullivan(1) that he/she is a public official; (2) case by clear and convincing; (3) falsity of the statement; and (4) that defendant acted with “actual malice”
Gertz: • Gertz is not a public official or public figure because although he is well known in “some circles,” he has not achieved “general fame or notoriety” in the community
Falwell- Exception for comedy/humor/satire
Snyder v. Phelps- speech while offensive involved a matter of public concern at the heart of 1st amdt protection.
Public concern- relating to any matter of political, social, or other conern to the community, or when it is of legit. news interst; not purely private concern.; lawfully present and not disruptive.
May be appropriate and necessary where problem is a racist application of the law, so as to avoid requiring repeated lawsuits to protect everyone affected.
1. Unconstitutional Racial Reasons
Shaw-If a districting scheme was so irraational on its face to be explainable only as an effort to segregate voters on the basis of race, strict scrutiny would be triggered
Easley: Not invalid for racial reasons as they stand now.
Look at shape, representation,discriminatory intent by history, technology
2. Unconstitutional as Political Gerrymandering
Vieth (plurality)- rejected the view that the court could ever intervene on the basis of such an argument, believing it to be a political question unasnwerable by the judiciary. Process of creating districts includes many considerations, politics and city borders, which aren't ordinarily enforceable by the ct.
-Ct. did not entirely foreclose on relief if some limited and precise rationale were found to correct an established violation of the const.
There has never been more than 4 votes for a holding that its a political questions.
Freedom of Association
NAACP v. Alabama- Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of liberty assured by DP of 14th amdt., embraces freedom of speech
Integral to speech and assembly under 1st amdt.
Rotary club of Duarte, NY State club Assoc; BSA v. Dale
These cases acknowledged that the laws interfered w/ freedom of assoc.
- Although exclusions of minorities and women would cause harm, can dicriminate in limited circumstances:
1. Acitivity is "intimate association" a small private gathering, freedom of association protects the right to discriminate.
2. Right to discriminate if discrimination is integral to expressive activity (no black people in KKK or jews in nazi party, b/c discrimination is a key aspect of their message.)
Roberts v. US Jaycees
-Freedom to associate is not absolute and that infringments on that right may be justified by regulations adopted to serve compelling state interest, and achieved through means signfiicantly less restrictive of associational freedoms.