Constitutional Law II

Outline
Instructor: Beery

1 Constitutional Law II Outline | Microsoft

Table of Contents
1 Doctrine of Selective Incorporation ........................................................................................................................... 3
2 Substantive Due Process ............................................................................................................................................ 3
2.1.1 Fundamental Un-Enumerated Rights: Penumbra...................................................................................... 4
2.1.2 Abortion ..................................................................................................................................................... 5
2.1.3 Non-Fundamental Rights ........................................................................................................................... 7
3 Equal Protection ........................................................................................................................................................ 8
3.1.1 Race as a Protected Class........................................................................................................................... 9
3.1.2 Economic Interests .................................................................................................................................... 9
3.1.3 Voting Rights ............................................................................................................................................ 10
3.1.4 Affirmative Action .................................................................................................................................... 11
3.1.5 Gender ..................................................................................................................................................... 12
3.1.6 Alienage ................................................................................................................................................... 13
3.1.7 Sexual Orientation ................................................................................................................................... 14
3.1.8 Illegitimacy ............................................................................................................................................... 14
3.1.9 Mental Retardation.................................................................................................................................. 14
3.1.10 Age Discrimination ................................................................................................................................... 14
4 First Amendment: Speech ....................................................................................................................................... 15
4.1.1 Incitement ................................................................................................................................................ 15
4.1.2 Obscenity ................................................................................................................................................. 16
4.1.3 Fighting Words ......................................................................................................................................... 16
4.1.4 Time - Place - Manner Restrictions .......................................................................................................... 17
4.1.5 Conduct and Speech Hybrid..................................................................................................................... 17
4.1.6 Prior Restraints ........................................................................................................................................ 18
4.1.7 Speech Forums......................................................................................................................................... 19
5 First Amendment: Religion ...................................................................................................................................... 20
5.1.1 The Establishment Clause ........................................................................................................................ 20
5.1.2 Government Aid to Religious Organizations............................................................................................ 21
5.1.3 Religion and Public Schools...................................................................................................................... 21
5.1.4 Religious Displays on Public Property ...................................................................................................... 21
5.1.5 Free Exercise Clause................................................................................................................................. 22

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 1 Doctrine of Selective Incorporation
History
SCOTUS: could have rqrd 14th Amdt to apply to 1st 8 Amdts to all states, but chose to be selective in its process
Incorporation: Parts of the Bill of Rights that apply to the states
Selective: Parts of the Amendments the courts have said apply to the states.
Originalist: Constitution means the same now as it did in 1791 (Date of Bill of Rights) and 1868 (14 th Amdt)
Organic: “Living Constitution,” Constitution changes with the times
Definitions
Doctrine of Selective Incorporation: Amendments that are incorporated
Incorporation: Parts of the Bill of Rights that apply to the states
Selective: Parts of the Amendments the courts have said apply to the states
Incorporated Rights
1st Amendment Plead under the 14th Amendment
2nd Amendment People have the rights to have a gun, States cannot ban this
4th Amendment Due Process, Search and Seizures
6th Amendment Right to counsel
Not Incorporated Rights
3rd Amendment Has never been litigated (House Soldiers), thus not incorporated
7th Amendment Due to dollar amount for right of civil trials, not incorporated
Partially Incorporated Rights
5th Amendment Miranda rights are incorporated BUT Grand Jury requirement is not
8th Amendment No cruel & unusual punishments are incorporated BUT excessive fines are not.
** Reminder: 9th and 10th Amdts do not list rights and therefore are not susceptible to incorporation

2 Substantive Due Process

Controlling Texts
9th Amendment The enumeration in the Constitution of certain rights shall not be construed to deny or disparage other
rights retained by the people. Penumbra of rights – UN-enumerated.
10th Amendment Powers not delegated by Constitution are reserved to the States or the people.
5th Amendment Due Process Clause of Liberty (Federal)
14th Amendment No State shall deny any person within jurisdiction, the equal protection of the law (State)

Definitions
Substantive Due Process: Prohibits the govt from infringing on fundamental constitutional liberties (rights)
Lochnerized (Lochnerizing): Inventing fundamental rights that have been created in thin air – economic (NOT fundamental),
Strict Scrutiny: Burden is w/ the State; State must prove a very compelling State interest (CSI - Save the Kids) and use narrowly
tailored means (NTM - no other way to achieve the state’s interest)
Rational Basis: Burden is w/ P; P must prove the law is NOT rationally related to a legitimate state interest
General Elements
1) If you are the Plaintiff, then go as broad as possible.
Identify the Right
2) If you are the Government, then be as narrow as possible.
1) Is it deeply rooted (1791 Fed, 1868 States) in the nation’s history and traditions?
Is the Right Fundamental? 2) Is it implied in the concept of ordered liberty?
 Is it part of Fabric of our Society; Would the world crumble if we allowed this?
1) If it is fundamental, then apply Strict Scrutiny. NFC – Necessary to Further a Compelling state
Apply the Appropriate Level int
of Scrutiny 2) If NOT, then apply Rational Basis. RRL – Rationally Related to a Legitimate state interest.
3) BUT, if govt is banning conduct based on Morals alone, then No legitimate state interest.

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 ** REMINDER: Issue - Govt restricts a RIGHT to do “X” (“X” must be critical) “I should be allowed to do this w/o the
state or fed govt interfering, the right belongs to the people.” You are essentially asking: “Who has jurisdiction over this
right?” Ex: “Who has the right (the jurisdiction) to tell me to (or to not) brush my teeth?”
2.1.1 Fundamental Un-Enumerated Rights: Penumbra
List of Fundamental Un-Enumerated Rights
Marital Privacy Griswold v. Connecticut
Contraception Eisenstadt v. Baird
Procreation Skinner v. Oklahoma
Right to Marry Loving v. VA (Race), Turner v Safely (Prisoner), Obergefell v Hodges (Same Sex Marriage), US v Windsor
(DOMA)
Unitary Family Moore v. East Cleveland, Bella Terre
CCC - Care, Custody Troxel v. Granville, Michael H. v. Gerald D.
& Control of Child
Refuse Unwanted Cruzan v. Dir of Missouri Dept of Health (Rt to remove life support), Vacco v Quill (NY Rt to refuse treatment)
Medical Treatment Washington v Glucksberg (Assisted Suicide)
Abortion Casey, Maher v Roe & Harris v M Rae/Hyde Amdts (funding), Webster v. Repro Hlth (trimester to viability)
Cases
Slaughter House LA gave a monopoly in slaughterhouse business for New Orleans to Crescent City Livestock Landing. Law required all
Cases slaughtering to be in the slaughterhouse for a fixed fee. Several butchers brought suit challenging the grant of the
monopoly and argued the law violated their right to work, created invol serv, deprived them of their property, denied
them eq pro, & abridged their P & I.
Rule: P & I clause does not apply Bill of Rights to states. (P & I is DEAD – no effect)
Analysis: A state may exercise its police power to reg noxious trades such as op of slaughterhouses. Such regs do not
conflict w/ 14th amdt. The Amdt distinguishes:
 the P and I arising from citizenship in a particular state and those that arise from citizenship of US.
Federal P & I includes only the right to peaceably assemble and petition for redress, to use navigable waterways, and etc.
All other rights are properly subject to states.
Griswold v. Griswold, exec Dir of Planned Parenthood, and its Med Dir were convicted under CT law that made it a crime to give
Connecticut married couples info about preventing contraception and prescribing contraception.
Rule: Rgt of marital privacy lies in PENUMBRA of Bill of Rights; therefore, it is a fundmntl rt & SS is std of judicial review.
Implied Rights under Rule: Fundamental rights exist that are not expressly enumerated in the first 8 amdts, The intent is that the list of rights
9th Amdt (Penumbra) included there not deemed exhaustive.
Analysis: It interprets the Bill of Rights in such a way to suggest that we have the right to privacy (although not specifically
Rt to Marital Privacy stated in the Constitution) and that the government cannot interfere
Statute that prohibited distribution of contraceptives to unmarried persons.
Eisenstadt v. Baird
Rule: Fundamental Right of marital privacy & contraception extends to unmarried people.
Also, set the table for abortion rights by saying: “If the right of privacy means anything, it is the right of the individual,
Rt to Marital Privacy
married or single, to be free from unwarranted govt intrusion into matters so fundamentally affecting a person as the
(Unmarried couples)
decision to bear or beget a child.”
OKL defind a “habitual criminal” as a one who, having been convicted 2 or more crimes felonies involvg moral turpitude in
Skinner v. Oklahoma OK or another State. Such habitual criminals could be subjected to forced sterilization. Act deprives him of procreatg.
Rule: The RIGHT TO PROCREATE is a fundamental right. Strict Scrutiny.
Rt to Procreate Analysis: State cannot take away a persons’ right to procreate simply b/c they have committed crime. It is deeply rooted
in our society to have children and fundamental to survival of the race.
Loving v. Virginia A state reg designed to prevent interracial marriage
Rt to Marry Rule: The RIGHT TO MARRY is fundamental to our existence and survival
Wisconsin law forbidding marriage by any resident w/ minor kids not in his custody in arrears in child support and that
the kids are not illegitimate children. Appellee and woman wanted to marry were expecting a child but he was denied
marriage license b/c had not satisfied his support obligations to his illegitimate child.
Zablocki v. Redhail Rule: Decision to marry as among personal decisions protected by right of privacy; decision to marry has been placed on
same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships.
Rt to Marry Analysis: Right to marry is a fundamental right but states can put pre-req’s; not all pre-req’s will be deemed
unconstitutional. Only those that are absolutely preventing someone from ever getting married. Here, they either lack
the financial means to meet their support obligations or cannot prove that their child will not become “illegitimate.”
There are other means for compliance of support obligations and that do not impinge upon the right to marry forever.
Turner v. Safley Inmates to marry only when Warden gave approval for “compellg reasons” such as pregnancy or birth of child.
Rt to Marry Rule: The fundamental right to marry is also a right as a prisoner.

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for Prisoners Analysis: Although the right to marry is subject to substantial restrictions per jail, many imp attributes of marriage remain.
1) Inmate marriages, just like others, are expressns of emotnl support and public commitment w/ religious significance
2) Most inmates eventually will be released and will eventually be fully consummated
3) Martial status often is a pre-condition to receipt of govt benefits, prop rights, legitimation of kids
At the time of the complaint, Petitioner lived in E. Cleveland w/ her son and 2 grandsons, who were cousins, but not
brothers which did not match one of the statutory definitions of “single family.”
Moore v. Rule: The composition of a family is a fundamental right and the State must advance a compelling interest to infringe
City of E. Cleveland upon the choice of relatives of a close degree of kinship to live together. Family living arrangements are none of govt’s
business.
Rt to Unitary Family Analysis: Municipalities generally have a broad ability to enforce SFR housing regs against groups of individuals living
together where there is no relation by blood, adoption, or marriage. However, the tradition of having family member
live with others in their extended family is deeply rooted in society, long and representative of the basic values
underlying our society
Village restricts land use to SFR dwellings, to the exclusion of boarding or frat houses, or MDU’s. ‘Family’ means related by
Belle Terre v. Boraas
blood, adoption, or marriage, living and cooking together as a single unit. 2 people living together but not related by
blood, adoption, or marriage constitutes a family. 6 college kids leased a house, and were not a family under the law.
NO Fundamental Rt
Rule: Right of 6 non-related people living together; NOT Fundamental. Law permissible under police power to regulate
for Unrelated people
health/safety/welfare b/c it was rationally related to a legitimate govt interest.
living together
Analysis: Basically, frat houses do not rep a family and not deeply rooted in the Nation’s tradition,
Troxel v. Granville Law - any person at any time may be granted custody of kids if it is in best interest of your children.
Rule: The right of a parent to determine the CCC of their child is fundamental.
Rt to CCC: Analysis: Constitution permits a state to interfere w/ rights of parents to rear children only to prevent harm or potential
Care-Custody-Control harm. The statute fails that std b/c it recognizes no threshold showing of harm.
- By allowing “any person” “at any time” to apply for custody of children, w/ the only rqmts being that the visitation
MAY serve in best interest of child is too broad.
Interests of parents in 3 C’s of their children is perhaps the oldest of fundamental liberty interests.
Calif law, a child born to a married woman living with her H is presumed to be a child of a marriage. Presumption of
legitimacy may be rebutted only by H or W & only in limited circumstances, by blood tests only if done w/in the first 2
years of life upon request by the natural father or married father. Carole and Gerald were married. Carole cheated on
Michael H. v. Gerald w/ Michael & got her pregnant. Michael sued for visitation rights for Victoria; Gerald and Carole opposed.
Gerald D. Rule: A person does not have a fundamental right to obtain parental rights after the presumptive father has exercised
significant responsibility over the child.
Rt to Unitary family Analysis: To limit and guide interpretation of SDP, interest claimed to be fundamental must be traditionally protected in
society. The tradition here is the relationship within the unitary family & society has traditionally protected this against
such claims that Michael asserts. No precedent about addressing specifically the power of natural father to assert
parental rights over child born into a woman’s existing marriage to another man. Custody rts not quite decided/defined.
Nancy Cruzan was in a car accident. It left her in a “persistent vegetative state.” Her parents requested the hospital
Cruzan v. Dir of terminate the life-support procedures after they discovered she would not improve.
Missouri Dept of Rule: Due Process clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment,
Health and a state may legitimately seek to safeguard the personal element of this choice for incompetent persons through
the imposition of heightened evidentiary requirements.
Rt to Refuse Med Basically, 1) A competent adult has a constitutionally-protected 14th Amdt liberty interest in declining unwanted medical
Treatment procedures. 2) HOWEVER, where the patient is incompetent, there is “clear and convincing evidence” that this is what
the patient would have wanted.
Bowers v Hardwick A state statute criminalized oral and anal sex. Hardwick was charged w/ crime.
(’86), (Overturned) Rule: Crt found that the state could reg b/c there was no constitutional protection for oral/anal sex. The rt was not
Rt to Sexual Privacy fundamental. Not deeply rooted in the nation’s history and tradition nor implicit in the ordered liberty of society.
A TX state law made it a crime to have homosexual sex. D’s were convicted when the lower court framed the issue as
Lawrence v TX (’03)
whether homosexual sex was a protected fundamental rt. But SCOTUS framed it as whether the Govt has the rt to reg
consenting adults in interpersonal and intimate relationships.
Rt to Sexual Privacy
Rule: Consenting adults have a fundamental rt to have intimate contact in the privacy of their homes.

2.1.2 Abortion
Controlling Texts
9th Amendment The enumeration of certain rights shall not be construed to deny or disparage others retained by the people
10th Amendment Powers not delegated by Constitution are reserved to the States
5th Amendment Due Process Clause of Liberty (Federal)
14th Amendment No State shall deny any person w/in jurisdiction, the equal pro of the law (State)
Definitions
Judicial Bypass: Any parental consent law must contain permission from the courts to override parental consent.
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 Viability: Point at which unborn child could survive w/o being in the womb w/o extraordinary intervention.
 Post Viability: States can restrict up to & including a total ban, as long as exception for health &safety of mother.
 Pre-Viability: Since fetus not viable, the govt does not have an interest in protecting the fetus w/o limits
Undue Burden: Places a Substl (significant, big) Obstacle in path of a woman who wants an abortion. Only Reasonable Obstacles
** ALL bans on abortion must have a mother’s safety (life or health; needs both) exception.
** Abortion is an un-enumerated fundamental right.
** A woman’s right to have control over her body w/ regard to decide if she wants to bear children. Woman has a FUNDAMENTAL
RIGHT to terminate pregnancy.
DE – Dilation & Evacuation: Both pre and post viability – Permitted.
DX – Dilation & Extraction: ALWAYS POST Viability. Breach birth, skull collapsed, then removed. PROHIBITED - NO EXCEPTION
Abortion Analysis: Do not due regular SDP analysis. 2 Steps: Determine Viability, then do Casey analysis, and Undue Burden.
General Elements
Identify Right 1) If you are the Plaintiff, then go as broad as possible
2) If you are the Government, then be as narrow as possible
Is the Right 1) Is it deeply rooted (1791 Fed, 1868 States) in the nation’s history & traditions?
Fundamental? 2) Is it implied in concept of ordered liberty? (Fabric of Society; Would world crumble if we allowed this?)
1. Informed Consent Before Getting Abortion: Reasonable b/c all med procedures require informed consent.
Apply CASEY 2. 24-hr Wait: Reasonable b/c won’t stop a woman wanting to have abortion; big decision “think overnight”
3. Parental Notification w/ Judicial Bypass for Parental neglect/abuse; reasonable as long as judicial bypass
4. Record Keeping/Reporting Rqmts: Reasonable for std record keeping b/c w/ all medical procedures. Specifics, however, are
5 Provisions: undue burden.
Rt to Abortion 5. Spousal Notification: UNDUE BURDEN. Woman’s interest outweighs a man’s. For too many women, it would be outcome
determinative of decision.
Cases
Roe v. Wade TX criminalized abortion except by med advice to save mother’s life.
(1973) Rule: Right of privacy protects a married/unmarried woman’s liberty to choose an abortion, but the right must be considered
against imp state interests in reg such as stage of pregnancy.
Analysis: Right of privacy per 14th Amdt is broad enough to encompass a woman’s decision whether to terminate her pregnancy.
Held: right of the woman is not absolute. The state can reg the woman’s actions where the law serves a “compelling state
interest.” Crt ruled in 1st trimester abortion can occur w/o state interference. After 1st trimesters, state can reg but only to
serve compelling interest of promoting health and life of the mother.
Maher v. Roe CT Welfare Dept passed a reg limitg state Medicaid benies for 1st trimester abortions to those that are “medically necessary,” a
(1977) term defined to include psychiatric care. Susan Roe (P), an indigent woman who was denied funding for an abortion under
reg brought suit against Maher (commissioner).
Rule: Roe, and CASEY, did NOT establish an unqualified constitutional right to an abortion, only a right protecting women from
unduly burdensome interference w/ her freedom to terminate a pregnancy.
Analysis: Govt does not have to help person who wants abortion. Govt is here to:
 protect rights, and prevent from taking rights away from you but
 govt is under no obligation to pay for, provide a facility, or assist a woman get an abortion.
Harris v Congress may deny public funds for some medical-necessary abortions, while fundg other med costs (incl carryg baby to term).
McRae (1980) Rule: Hyde Amdt’s prohibition against use of fed Medicaid funds to pay - does not violate the Constitution.
 Liberty interest recognized in Roe does not prohibit a state from encouraging personal choice by subsidizing one choice and
not another.
 Constitution merely prohibits a state from infringing upon a woman’s right to persnl choice by restrictg access to abortion.
Webster v Establishing Viability of a fetus > 20wks old. In 1986, Missouri enacted law that placed a several restrictions on abortions. The
Reproductive preamble of the law indicated that "the life of each human being begins at conception," and the law caused certain abortion
Hlth Srvcs, restrictions: TC ruled the law unconstitutional.
(1989)  pub employees/facilities were not allowed to perform or assist abortions unless to save mother's life;
 encouragement and counseling to have abortions was prohibited; and
 Drs were to perform viability tests upon women in their 20th week of pregnancy.
Held: none of the challenged provisions were unconstitutional.
 preamble was not applied rigidly to restrict abortions, and so did not pose a constitutional question.
 Due Process Cls did not require states to enter med biz to perform abortions, nor create right to govt aid.
 3rd, no case or controversy existed regarding the counseling provisions of the law.
 viability testg is valid - State's interest in protecting potential life could exist before viability.
 A state may prohibit the use of public facilities and public employees in performing abortions.
Plannd Planned Parenthood sued Casey, Gov of PA, for purpose of challenging 5 provisions on abortion under PA Law. CASEY expands
Parenthood of from “trimester” stages of Roe v. Wade, to “viability, pre/post viability”…more accurate & defined above. Proposed 5 Rqmts,
4 Deemed Reasonable

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 PA. v. CASEY 1. Informed Consent Before Abortion: Reasonable b/c all med procedures require informed consent.
(1992) 2. 24-hr Wait Period: Reasonable b/c won’t prevent a woman’s choice; big decision “think overnight”.
- The fact that some poor women may have a hard time getting extra time off work or finding a ride for the return trip to
the clinic is troublesome, but does not constitute an undue burden.
3. Parental Notification w/ Bypass: Parent neglect or abuse; reasonable as long as judicial bypass.
- Difference from requiring married women to notify their husbands: In this case,
- reasonable a child will benefit from notifying parents, who always have their best interests at heart.
4. Record Keepg/Reportg Rqmts: Reasonable for std record b/c w/ all med procedures. Specifics, cause undue burden.
5. Spousal Notification: UNDUE BURDEN (“substantial obstacle”). Woman’s interest outweighs the man’s. For too many
women, it would be outcome determinative of decision.
- Some women in domestic violence could find this very burdensome
- B/c this rqmt does not just make abortions a little harder or more expensive to obtain but rather likely to prevent a lot
of women from obtaining abortion, undue burden.
- Husband has NO enforceable rights in this situation.
Stenberg v A law prohibited any "PARTIAL BIRTH abortion" unless it was necessary to save the mother's life. It defined "partial birth
Carhart, abortion" as a procedure that "intentionally delivers into the vagina a living unborn child, or a substantial portion, to
(1999) perform a procedure that the Dr knows will and does kill... child." Violation is a felony, and it provides for automatic
revocation of a convicted Dr's state license to practice medicine.
P/Carhart, a Nebraska Dr who performs abortions, brought suit seeking a declaration that the statute is unconstitutional, b/c
vague and placed an undue burden on himself and female patients.
Rule: All statutes restricting abortion must allow an exception for the life AND HEALTH of the mother.
Held: 5-4, Statute is UNConstitutional both b/c it lacks any exception for the preservation of the health of the mother, and it
unduly burdens the right to choose abortion by forbidding partial birth abortions.
Partial birth abortions (D&E & D&X) are often safer in 2nd trimester & specifically safer when certain conditions are present.
Here, the statute does not provide for this exception either pre-viability or post-viability.
Gonzales v. In 2003. Partial-Birth Abortion Ban Act which prohibited “intact dilation and evacuation” (Intact D&E), a manner of ending a
Carhart (2007) fetus in the 2nd trimester where a surgeon killed the fetus by dilating the mother’s cervix, piercing the fetus’s skull, then
suction the fetus from the uterus.
PBABA prohibits “Intact D&E” only and contains no proscription of D&E procedures that involve removal of a fetus in parts.
Additionally, PBABA does not prohibit “Intact D&E” that is accidentally performed.
Rule: Congress may ban a specific type of partial-birth abortion provided its restrictions on the practice are narrow & clear and
the ban does not constitute an undue burden on a woman’s right to an abortion.

2.1.3 Non-Fundamental Rights

List of Non-Fundamental Rights
Right to Work Lochner v. NY
Economic US v. Carolene Products
Contract Williamson v. Lee Optical
Assisted Suicide Washington v. Glucksburg
Voting EQUAL PROTECTION ISSUE
Cases
Lochner v. NY, NY passed a statute that limited # of hours a baker could work to < 60 hrs/wk, or 10 hrs/day. P worked > legal limit and was
(1905) convicted of as misdemeanor.
Rule: A state may interfere w/ a person’s right to contract for labor, only if such interference is reasonably related to a
legitimate purpose such as protection of pub hlth, safety, or welfare.
US v. Carolene In 1923, Congress passed Filled Milk Act, which criminalized the shipment in interstate commerce of skimmed milk
Products compounded w/ any fat or oil other than milk fat, so as to resemble milk or cream. D owned a milk processing plant and
was accused of shipping a product called “Milnut” that consisted of a compound of skim milk and coconut oil. D argued
that the FMA infringed on liberty to contract freely under DuePCls of 5th Amdt.
Rule: Econ interests not fundamental. Challenger must show no rational basis to legitimate govt interest. It is not the place
of judiciary to 2nd-guess legis reasoning. RATIONAL BASIS.
SCOTUS provides complete deference to decision making of legis and abstains from reviewing date in support of the
decision. Footnote 4: There is nothing “on the list” of economic rights. IF a govt draws classifications or takes away a
fundamental right, courts use strict scrutiny.
Williamson v. Lee OK State law made it unlawful for any person not licensed as an optometrist or ophthalmologist to fit lenses to a face or
Optical fashion existing lenses into a frame unless given an Rx by state-licensed O. Lee Optical filed suit.
Rule: State law must be Reasonably & Rationally Related to health, safety & welfare of public to fall under State’s Police
Powers, it must also not be an arbitrary or discriminatory law.

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 Analysis: Law violated Due Process b/c “Although law was dealing w/ pub interest, particular means were neither
reasonably necessary nor rationally related to the end sought (Goal).”
WA v. Glucksburg Drs treating terminally ill patients are seeking a determination that the WA State Law prohibiting assisted suicide is
unconstitutional.
Rule: Assisted Suicide is not a liberty interest protected by Constitution.
Analysis: SCOTUS does not decide whether assisted suicide is constitutional; only that a law prohibiting suicide is
constitutional, as there is no guarantee to assisted suicide. SCOTUS had already established that there is a liberty interest
in withholding unwanted medical treatment, even life support. However, in terms of suicide, there are several State
interests against defining such a liberty interest: preserving human life, protecting the vulnerable, and fear this may
enable involuntary euthanasia. Given WA has compelling state interest, the means chosen are rationally related to goal.

3 Equal Protection
Controlling Texts
14th Amendment No State shall deny any person w/in juris, the eq pro of the law (State)
5th Amendment Due Process Clause of Liberty (Federal)
History
What were drafters trying to accomplish by not specifying a group? Not allowing states to target ANY particular grp.
**Equal protect laws do not protect people, BUT groups of people against discrimination
 Government has a duty to treat Similarly Situated persons Similarly.
 It is okay to treat people differently, when the different treatment is based upon CONDUCT, NOT b/c of who THEY ARE.
 Two different ways to analyze laws: 1. Facially, 2. As Applied,
Common Sense: Obviously laws discriminate against someone (speedg laws against speeders). Can’t discriminate against characteristic, only acts.
Definitions - Classes
Suspect: On its face, a presumptively unconstitutional distinction made between individuals on the basis of their trait being immutable and with a
history of political powerlessness. (Usually Race, Ethnicity, and Alienage)
Quasi – Suspect: A distinction of a certain group of people that falls short of quite being “of its face, a suspect class,” however, is still a higher level
than a non-suspect class. (Usually Gender and Illegitimacy)
Non-Suspect: A distinction of a certain group of people that does not satisfy qualifications of being suspect.
General Elements
Identify Class
(Group)
Is the 1. Is the Characteristic Immutable? (Non-Changeable Characteristic) Any sort of physical attribute perceived as being
Class Suspect? unchangeable, entrenched, and innate.
2. Is there a History (going on for awhile) of Political Powerlessness (minority that has been repeatedly targeted) ?
(Seems majority is always targeting someone) Carolene Products Co: Whether prejudice against discrete and insular
minorities are disadvantaged groups and should apply strict scrutiny.
 Discrete: separate/identifiable
 Insular: Isolated/Outside
3. Does the Characteristic have Anything to do w/ Ability to Contribute to Society (Is it arbitrary classification)?
(Being a useful citizen; hold a job; so on) Usually applies to gender/ethnicity, where you would say “no connections
with.” Some characteristics would apply, like being a homicidal maniac.
A. IF YES TO ALL AND ON IT’S FACE, THEN = SUSPECT CLASS
B. IF YES TO ALL BUT CAN’T TELL JUST BY LOOKING (falls a little short), THEN = QUASI-SUSPECT CLASS
C. IF NO, DOES NOT MEET CRITERIA, THEN = NON-SUSPECT CLASS
Apply the 1) Strict Scrutiny: Burden is on state; State must prove a very compelling state interest (Save Kids) and use narrowly
Appropriate tailored means (no other way to achieve the it’s interest)
Level of Scrutiny 2) Intermediate + (Gender): Must have exceedingly persuasive justification (Ginsburg- O’Connor),
3) Intermediate Scrutiny: State has burden and must have an argument interest that means are substantially related to
this interest that state is trying to achieve, basically it’s a good way to do it, doesn’t have to be the best way.
4) Animus - Rational Basis w/ Bite: State has burden and must prove law is rationally related to a legitimate state interest.
5) Rational Basis: Burden is on P who must prove law not rationally related to a legitimate interest.
Rational Basis w/ 1. Is the Group Politically Unpopular? (A Whipping Post Majoritarian Fear and Hostility)
Bite (Animus) 2. Do you Detect “A Bare Desire to Harm” or Irrational Fear? (Applies to Animus)

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 3.1.1 Race as a Protected Class
Cases
Plessy v. A LA statute rqrd RR Co’s to provide separate, but equal accommodations for Black and White passengers. An exception was
Ferguson made for nurses attending to children of another race. P, 7/8 white, was prosecuted under statute after he refused to
leave the section reserved for whites. Alleged purpose of law was preserve public peace, good order and promote
comfort. Origin of phrase: Separate, but equal.
Rule: A law, which authorizes or requires the separation of 2 races on public conveyance, is consistent w/ the 14th Amdt
(unless the law is unreasonable).
Analysis: Although 14th Amdt is intended to enforce equality between races, it was not meant to abolish distinctions based
on color, or to enforce a commingling of races in a way unsatisfactory to either.
Korematsu v. US During WW II, Pres Roosevelt issued an EO authorizing military commanders to prescribe military areas from which any or
all persons may be excluded. Thereupon, a military commander ordered all persons of Japanese descent, whether or not
they were US citizens, to leave their homes on the West Coast and report to "Assembly Centers." Petitioner, a US citizen of
Japanese descent, was convicted under fed law making it an offense to fail to comply with such military orders.
Rule: Legal restrictions that curtail the civil rights of a single racial group are subject to the most rigid scrutiny. But,
pressing public necessity may sometimes justify such restrictions.
Analysis: Although the exclusion order imposed hardships upon a large # of US citizens, hardships are part of war. When,
during war, our shores are threatened by hostile forces, power to protect them must be commensurate w/ the threatened
danger. Ironically, this case establishes the "strict scrutiny" standard for ethnic classes, thereby leading to the invalidation
of much race-based discrimination in the future, Case keeps getting cited for appl of SS in discrimination cases.
Ex Parte Endo Court held that a Japanese detainee may no longer be held captive once the govt confesses that it has no security reason for
(Companion Case) holding him.
Brown v. Ps were various black kids denied admission to schools attended by white kids under laws that permitted or rqrd
Brd of Ed (1) segregation by race. P's sued seeking admission to public schools in their communities on a non-segregated basis.
Rule: In the field of public education, the doctrine of "Separate but Equal" has no place. Separate but equal educational
facilities are inherently unequal.
Analysis: Officially overrules Plessy. The rationale is that it's the intangible factors that make segregation laws in the area of
public ed "inherently unequal.” No remedy given in this case.
Brown (2) Declaring the fundamental principle that racial discrimination in public ed is unconstitutional. There remains for
consideration the manner in which relief is to be accorded.
How Fast? Rule for school districts and allowed the integration to take place w/ "all deliberate speed;" no deadline.
How Much Fed Control? Ruled for Ps, and gave control to fed govt, through the fed dist crt judges, for implementation of
how it would be accomplished. Must reach unitary status
Bolling v. Bolling was one of a group of blacks who filed suit in the fed court of D.C. to challenge the constitutionality of racial
Sharpe segregation in the district's public schools.
Rule: Public school segregation in the D.C. constitutes an arbitrary deprivation of liberty in violation of the Due Process
Clause of the 5th Amdt.
5th Amdt does not contain an Eq Pro Cls as does 14th. 'Eq pro of laws' is a more explicit safeguard of unfairness than 'due
process,' and so they are not always interchangeable. Segregation in public ed is not reasonably related to any proper
govt objective.

3.1.2 Economic Interests

Cases
RR Express P operates about 1,900 trucks in NYC and sells space on the exterior of the trucks for ads. NY passed a law specifically
Agency v. prohibiting such ads unless it was connected to biz of the vehicle. P argued this distinction violates Eq Pro Cls of 14th Amdt.
NY Rule: Eq Pro Cls does not seek to protect so called discrimination to determine whether allowing ads on vehicles and not
allowing ads on other vehicles is unconstitutional.
Analysis: Applyg 2 questions of suspect class, class is non-suspect, so requires rational basis review. Means were to prevent
distractions to drivers. The law passed was meant to ban only unrelated ads on businesses' vehicles, not all ads, so it is not
discriminatory. Under rational basis scrutiny, the ends must justify the means. Classification has relation to intended
purpose and does not constitute discrimination prohibited by the Eq Pro Cls.
New Orleans v. New Orleans reg banned all pushcart vendors from the French Qtr except those who had been there for 8+ yrs. Dukes sued
Dukes under Eq Pro, saying there's no good reason to allow some but discriminate against him just b/c he's been there only 2 yrs.
Rule: Unless legis infringes fundamental person rights or it is drawn upon "suspect" distinctions (race, religion), then the
law is presumed to be valid unless challanger can show the statute isn't rationally related to a legitimate state interest.
Analysis: Legis is rationally related to the legit state interest of preserving the appearance of the French Quarter. If the legis
wants to promote this interest in steps, by only limiting certain pushcart vendors right now, that's their prerogative. It
doesn't violate the EPC.

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 NY Transit A NY City Transit Authority Rule barred the employment of persons who use narcotics. The Transit Authority applied the rule
Authority v. to persons taking methadone - a drug widely used in treatment of heroin addiction. TC concluded there were substl #s of
Beazer methadone users who were just as employable as members of the genl pub and Transit Authority could have determined
which users were not employable by resort to normal personnel screening.
Rule: An exclusionary scheme that is not directed against any individual or category of persons, but rather represents a
policy choice made by a branch of government entitled to make such choices in constitutional because it does not
circumscribe a class of persons characterized by some unpopular trait or affiliation.
Analysis: Under rational basis review, matters of personnel policy do not implicate the principles safeguarded by the Eq Pro
Cls. Legit state interest claimed here is public safety; rule is upheld since relapse for heroin users is high.
US Dept. of Ag. In 1964, Congress passed the Food Stamp Act to govern and reform its food stamp program. §3(e) of the Act excluded from
v. Moreno participation in the food stamp program any household containing an individual who was unrelated to any other member
(Hippie Case) of the household. Moreno (Plaintiff) lived with Sanchez, a person to whom she was not related, and Sanchez's 3 kids.
Moreno met all income and other requirements for receiving food stamps, however, her benefits were denied under Food
(Animus)
Stamp Act. Sanchez's benefits were also denied.
Rule: Eq Pro means a bare desire to harm a politically unpopular group cannot constitute a legitimate govt interest.
Analysis: Under the Act, "2 unrelated persons living together" may "avoid the unrelated person" exclusion simply by altering
their living arrangements so as to create 2 separate households, both of which are eligible for assistance. The exclusion
"clearly irrelevant to the stated purposes of the Act," which was purported to aim at reducing fncl impact of Food Stamps.
Saving $ is never a compelling interest but it can be legitimate. (Animus)

3.1.3 Voting Rights

History
Why review under equal protection analysis instead of due process? Rare exception to classification - based analysis...Deeply rooted, fabric of
society, and strict scrutiny, so why?
SCOTUS said that there is not a fundamental right to vote under substantive due process because some officials are elected and some are
appointed, thus voting is not required.
HOWEVER, the "franchise" of the state-granted right to vote is protected once the state holds a vote.
The right is not to vote, but to have your vote count equally - giving the argument to the equal protection clause. Strict Scrutiny applies to
voting rights once the franchise has been given (Harper).

Cases
Harper v. VA Brd §173 of Virg. Constitution directed the legis to levy an annual poll tax not exceeding $1.50 on every resident 21 years of age or
of Elecs. older. Harper (P), a VA resident, brought suit alleging the poll tax violated Eq Pro Cle of 14th Amdt.
Rule: The right to vote in state elections is nowhere expressly mentioned in the Constitution, but once the franchise is
granted, lines may not be drawn which violate equal protection.
Analysis: Requiring payment to vote is an undue burden on some people, and fails the strict scrutiny analysis of the court.
When fundamental rights such as right to vote are asserted under the equal protection clause, "classifications which might
invade or restrain them must be closely scrutinized and carefully confined." A person's wealth or ability to pay tax has no
relation to his qualification as a voter.
Kramer v. Union A single man with no children who lived with his parents challenged a law that required voters in certain school board elections
Free School to either own or lease taxable property within that school district, or have children enrolled in the local schools.
District No. 15 Rule: Laws granting the voting franchise to residents on a selective basis always pose the danger of denying some citizens
any effective voice in their govt affairs which substantially affect their lives. Therefore, if a challenged law grants the right to
vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must
determine whether the conclusions are necessary to promote a compelling state interest.
Reynolds v. Sims Alabama requires itself to redistrict its legis every 10 years. Ps allege the last apportionment of the legis was based on 1900 fed
census and that the pop growth in the intervening 6 decades has now made representation against the fast-growing pops.
Under current apportionment, only 1 qtr of the pop lived in districts repd by a ma of the Senate and House of Reps.
Rule: A State must structure its elections and its state legis so its citizens are equally represented according to population.
Equal Pro requires "One - person - one - vote" for state legislative elections.
Analysis: In most instances, districts should be apportioned to allow each voter to have one, undiluted vote. If the State gives
voters in one part of the State much more weight in the vote of their legislators, the right to vote of voters in
underrepresented parts of the State has been diluted. Legislators represent people, not trees or acres.
Mobile v. Bolden Petitioner City has a 3-person council. Ea councilman runs for an open seat on the council and is elected by a majority vote,
serving a term of 4 years. Bolden, alleges that his voting rights have been adversely affected by this method of election, as
evidenced by the lack of any black persons in the city council.
Rule: Legis apportionment could violate Eq Pro, if purpose was to minimize or cancel out voting potential of minorities
Analysis: State actions that is racially neutral on its face violates 14th Amdt only if it is motivated by a discriminatory purpose.
Multi-member legis dists will only be found unconstitutional when their purpose is to minimize the voting power of racial
minorities. It is not enough to show only that minority council members were not elected in proportion to their % of the tl pop.

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 3.1.3.1 Single Member & Multi – Member Districting
General Elements
Single Member If 9 districts and ea district votes for 1 member to city council, and the districts have disparate ethnicity concentration like table
District below, you are likely to have 3 minorities, & 6 white council members.
Multi – Member If you have0 9 districts and everyone votes at once, and you take the 9 members with the most votes, you are likely to have 9
District white council members because 2/3 of the vote is white.

EXAMPLE
African American District Asian District Hispanic District
White District White District White District
White District White District White District

3.1.3.2 As Applied - Equal Protection Attack

Definitions
When a law is facially neutral but as applied it is discriminates and intentionally so

General Elements
Disparate Impact Must show class is Suspect or Quasi-suspect and the class was impacted differently than other classes
Intent Can be proven by circumstantial evidence but must show the law intended to discriminate against the class. Guidelines to
prove intent:
 History of activity of the class or discrimination of the class/Sequence of events
 No other reasonable explanation
 Legislative History: Things like minutes or notes of the legislative sessions or debates
 Selective Enforcement: The suspect class is targeted for enforcement in a disproportionate way
 Irregular Procedure: Did client have board mtgs in the middle of the night? At someone’s house?
EVER EVER EVER Do An AS-APPLIED Attack Where You Cannot LINK THE INTENT BACK TO A SUSPECT or QUASI-SUSPECT Class. If You Do
This On A NON-SUSPECT CLASS, Then All You End Up With Is RATIONAL BASIS And ALL LAWS ARE SUBJECT TO RATIONAL BASIS.

3.1.4 Affirmative Action

History
Designed to help a class of people, who have been kept down and discriminated against, giving them preferences for employment and higher
education.
** Apply Strict Scrutiny Test (Compelling State Interest and Narrowly Tailored Means) – CSI/NTM
TWO TYPES OF DISCRIMINATION
Benign Discrimination intended to help someone despite the fact that it is creating a hardship for someone else. Affirmative Action
is still discrimination but considered to be Benign
** Good to mention for extra points on the essay!
Invidious Unjust discrimination, likely to arouse resentment or anger in others.

HIGHER EDUCATION
Compelling State Diversity and Higher Education: Because generals and CEO's get their people from higher education and they want their
Interest people to know about the world. New Leaders need to manage a diverse workforce.
** High schools are not diverse b/c genls & CEO's are not recruiting from them.
Narrowly Tailored Critical Mass (Then race, ethnicity can be a plus): Where minorities feel comfortable in school, and not mere tokens, they
Means are able to make a meaningful contribution.
* You can only count ethnic/race as a plus when you have roughly = apps (it cannot be outcome determinative), if you
haven't reached critical mass. * Never use quotas (numbers) say you are trying to achieve critical mass.

EMPLOYMENT
Compelling State Passive Participation in a past and a history of discrimination: (Don't have to show that your client was actively
Interest discriminated against, just passive discrimination = knew it was happening and did nothing to stop it.)
** Public Entity knew there was private discrimination going on but did nothing.
Narrowly Tailored SCOTUS has never addressed this in regards to employment
Means Lower courts have said this can be a "Plus" on an application

Cases for HIGHER EDUCATION

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Regents of UC v. Bakke, a white applicant to the UC Davis Med School, sued the Univ, alleging his denial of admission on racial grounds was a
Bakke violation of Eq Pro Cls of 14th Amdt.
Rule: Race may be a factor for admission to public educ institutions, as long as it is NOT SOLE determining factor.
 All racial classifications must have Strict Scrutiny as basis of analysis and are constitutional only if they are both: 1)
Narrowly Tailored Means and 2) Further a Compelling State Interest
Analysis: Ruled in favor of Bakke by finding the school's special admissions program unconstitutional b/c of its use of quotas.
Accepting a min # of minorities simply to reduce the tradtl deficit of such individuals in the med profession is facially
unconstitutional, as it gives preference to an individual on the basis of race alone.
** Quotas (or any number for that matter) are never narrowly tailored.
Grutter v. Grutter applied to U of M Law School in ‘97 w/ an undergrad GPA = 3.8 / LSAT = 161. She was denied. P, who is white, is
Bollinger challenging the school's use of race as a factor in developing a "critical mass" in the admissions process.
Rule: Schools may consider race/ethnicity as part of admissions as long as it is only one factor in an individualized process.
Analysis: Admissions decisions are based on applicant's LSAT, GPA and "soft". Race was just a. Narrowly tailoring does not
require exhaustion of every conceivable race-neutral alt. * Diversity in higher ed is a compellg interest.
Gratz v. To help admission, U of M implements a point system, which has a max of 150 points, and admission is granted to any student
Bollinger at or above 100 points. Any student from an underrepresented racial or ethnic minority group automatically receives 2pts.
Rule: Admission criteria based on race must be NARROWLY TAILORED to achieve a compelling interest. Race may be
considered in an individual assessment, but not as a sole or contributing factor for admission.
Analysis: The School argues that w/ volume of apps, a system w/ individual assessment will be impractical. However, the court
states that just b/c it will be difficult to achieve such stds does not render their actions constitutional. An admiss system that
grants pts for certain racial characteristics such is not an individual assessment. Here, system is not narrowly tailored
Parents Involved Seattle allows students to choose a high school but when too many students choose a school they decide based on siblings in
v. Seattle Schools schools and race of the child as the "tie-breakers." Jefferson was originally ordered to desegregate its schools. In attempts to
correct the problem, Jefferson has a ratio that there should not be more than 50% black students at a particular school.
Rule: Only compelling interests regarding race recognized by SCOTUS are: 1) To remedy past intentional discrimination and
2) To achieve exposure to widely diverse people, cultures, ideas, and viewpoints. That is not present here.
Analysis: School plans that use race alone as a qualifying criterion for school assgmts is unconstitutional. Strict Scrutiny applies,
with the rqmts of narrow tailoring and a compelling govt interest, any time race is used as a classification.
Cases for EMPLOYMENT
Richmond v. JA Plan rqrd city contractors to subcontract 30% of work to minority - owned businesses. There was no evidence prior to the
Croson Plan's enactment that there was racial discrimination on the part of the contractors.
Rule: Even benign cases of discrimination (those that favor minorities) are subject to Strict Scrutiny.
Analysis: A Plan denies certain citizens the opportunity to compete for a % of contracts based solely on race. There is no
legitimate state interest here b/c the city is only aiming at remedying societal discrimination (impermissible). A permissible
state interest would be 1 to remedy specific past instances of discrimination.
Wygant v. School board laid off more senior white teachers in order to keep less-senior minority teachers. Gave as justification the desire
Jackson Brd of to alleviate societal discrimination.
Ed. Rule: All race-based preferences must be subject to STRICT SCRUTINY. A state actor can only try to "right" its own
discriminatory "wrongs."
Analysis: Schl brd had no compelling interest in alleviating societal discrimination, only prior institutional discrimination. But,
in this case, even if there was prior discrimination, the racial classification still wouldn't be sufficiently justified b/c it fails on
the 2nd prong of necessity: it puts too great a burden on innocent parties and therefore isn't sufficiently narrowly tailored.
Adarand Adarand Const submitted low bid for a fed hwy project. Mountain Gravel, the prime contractor, would receive addtl fed funds
Constructors v. for awarding subcontracts to bizs owned by "socially and economically disadvantaged individuals." Mt. Gravel awarded basis.
Pena Govt's policy included a presumption that minority - owned bizs were socially & economically disadvantaged.
Rule: All racial classifications, imposed by any govt actor, must have Strict Scrutiny as the basis of analysis, and can be found
constitutional ONLY IF they are both:
1) Narrowly tailored and 2) Further a compelling govt interest.
Analysis: In determining if Constitution would support govt's race-based classification, you must determine if:
 Govt has a compelling interest,
 Govt could apply a "race-neutral" program that meets the same objectives, and
 Race-based classification will last no longer than necessary in its elimination of "discriminatory effects."

3.1.5 Gender
Cases
Frontiero v. Sharron Frontiero, asserts that a military practice that automatically allowed wives of male Ofcs to be considered as
Richardson dependents and thus receive rights of dependents, but rqrd female Ofcs to actually prove that their husbands were
dependent, in order to get benefits is an unconstitutional gender-based classification.
Rule: Classifications based on Sex are inherently suspect & are subject to strict judicial scrutiny

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 Analysis: Sex discrim is comparable to race. Thus, strict scrutiny should be the test. The position of women for much of
American history is comparable to that of blacks under the pre-Civil War slave codes. Sex characteristic is highly visible and
immutable. No concrete evidence was given that this convenience saves the govt any money and although efficient admin of
govt programs is not w/o some importance, constitution recognizes higher values than speed and efficiency.
Craig v. Boren An OK statute prohibited sale of "non-intoxicating" 3.2 % alcoholic beer to males under the age of 21, but permitted the sale
of such beer to females over the age of 18. Craig (P), a liquor vendor in OK, brought suit on the grounds of EPC of 14th Amdt.
Rule: In order to withstand a constitutional challenge, gender-based classifications must serve:
1) Important governmental objectives AND
2) Must be substantially related to the achievement of those objectives
Analysis: SCOTUS now allows 3 Stds of review when eq pro challenges are presented. The intermediate level of scrutiny allows
the gender-based classifications to be more efficiently analyzed for purposes of determining the constitutionality of the
classifications.
US v. Virginia VMI was the sole single-sexed school among VA's 15 public institutions. VMI's mission is to produce "citizen soldiers," (male)
leaders of the future. VMI achieves its mission through its "adversative method," which is characterized by physical rigor,
mental stress, absolute equality of treatment, absence of privacy, etc. At trial, TC acknowledged that women were missing
out on a unique ed opp, but upheld the school's policy on the rationale that admitting women could not be done w/o
compromising the school's adversative method. Under previous App Crt case the State established the VA Women's Inst. for
Leadership (VWIL). VWIL offered fewer courses than VMI and was run w/o adversative method.
Rule: Gender-based classifications can be defended only by exceedingly persuasive justifications. State must show
classification serves imp govt objectives and means employed are substantially related to those objectives. Justification
must be genuine, not hypothesize and it must not rely on overbroad generalizations abt male/female differences.
Analysis: The creation of a parallel program for women does not provide for an adequate solution for remedying unequal
treatment resulting from ed policies that exclude women. "Separate but equal" does not work.
Miss. Univ. for [Exclusion of men, as name suggests]. Primary curriculum is nursing. State-run university (Private are not subject to equal
Women v. protection clause but public/state-run is). Stereotypically, nurses are women. "Women are nurturing, Men are not."
Hogan Stereotypes. Men are allowed to take classes and sit in on classes/audit classes but just not allowed to be accepted/enrolled
in the university.
Rule: Party seeking to uphold a statute that classifies individuals on the basis of gender must carry burden of showing an
"exceedingly persuasive justification." Burden is only met by showing at least that the classification serves 'imp govt
objectives and discriminatory means employed are substantially related to the achievement of those objectives.'
Analysis: Exclusion of men is for the classroom/not learning or becoming knowledgeable of nurse curriculum, however men
are not being excluded in classroom/learning w/ women b/c allowed in classroom. Means are violative b/c does not
accomplish what the University intended.

3.1.6 Alienage
History
Strict Scrutiny Applies UNLESS:
1) A State is excluding citizens from governmental function
- Ex: Judges (Judicial), Police (Executive), Legislature, etc
2) Congress is the one making the rules = RATIONAL BASIS
- Art I Section 8: List of Congressional powers to regulate includes immigration
Cases
Sugarman v. A NY statute excluded aliens from all govt civil service jobs filled by competitive exam. It did not apply to higher office
Dougall positions, such as elected offices, offices filed by the governor or offices filled by legislative appointment. The purpose of
the statute was to retain civil servants free of competing obligations to other powers. The underlying premise for the
statute was that civil servants participate in the formation and execution of govt policy and that divided loyalty might
impair a civil servant's judgment or the public's confidence in her judgment.
Rule: Classifications based on alienage are subject to close judicial (strict) scrutiny
Analysis: The State's broad prohibition of the employment of aliens applies to many positions with respect to which the
State's proffered justification has little, if any relationship. At the same time, the prohibition has no application at all to
positions that would seem naturally to fall within the State's asserted purpose.
** State-based govt function is defined as: "Officers who participate directly in the formulation, execution, or review (3
branches) of broad public policy perform functions that go to the heart of representative govt."
Ambach v. NY ed statutes forbid certification of any prospective teacher eligible for US citizenship, but refuses to seek naturalization.
Norwick Rule: Education, like the police power, represents a "fundamental obligation of state govt," and thus allows rational
distinctions based on alienage.
Analysis: Court states that unequivocal bond that citizenship establishes makes it a rational distinguishing trait for purposes
of a state exercising its govtl functions. The rule "bars from teaching only those aliens who demonstrate their
unwillingness to obtain US citizenship," making it narrowly tailored enough to suit the Court.
** Teachers do, but lawyers do NOT fulfill a "fundamental obligation of state govt"

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 3.1.7 Sexual Orientation
Cases
Romer v. Evans CO amended its constitution by including a provision known as "Amdt 2" that prohibits the state from enacting, adopting or
(Animus) enforcing, any reg whereby homosexual, lesbian, or bisexual orientation, conduct, or relationships shall constitute or
otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences,
protected status or claim of discrimination.
Rule: Classifications of politically unpopular groups, such as homosexuals, are reviewed under a rational basis std.
Analysis: Colorado amendment unlawfully discriminated against homosexuals because they were singled out. The state
provides no rational reason for excluding homosexuals from protection of the laws. The amendment perpetuates
discrimination of homosexuals. Colorado "cannot so deem a class of persons a stranger to its laws.”
*Animus - State Action "intending to harm the unpopular," such as gays/lesbians, and not supported by a racial basis is
unconstitutional.

3.1.8 Illegitimacy
Cases
Clark v. Jeter In 1983, Cherlyn Clark (P) filed a support claim on behalf of her daughter born out of wedlock. She named Gene
Jeter as her daughter's father. Court ordered blood tests showing Jeter was father. Jeter moved to dismiss based
on 6 year statute of limitations for paternity actions. P claimed statute was unconstitutional under EPC.
Rule: Under heightened scrutiny, a statute is unconstitutional when not substantially related to the State's
interest in avoiding the litigation of stale or fraud claims.
Analysis: Illegitimacy = intermediate scrutiny

3.1.9 Mental Retardation

Cases
Cleburne v. Cleburne Living Centers applied for a license to op a group home for mentally retarded people. After holding a
Cleburne Living public hearing on CLC's application, the city council denied the permit.
Ctr Rule: Mental retardation is not a suspect or quasi-suspect class. When reviewing a discriminatory classification
involving mentally retarded people, the std of review is rational basis.
Analysis: Generally, under eq pro, legis is presumed valid and will be sustained if classification drawn by statute is
rationally related to a legit state interest. Basis of discrim in this case is irrational fear of mentally retarded,
which still has enough "bite" to strike down a law under rational basis. Irrational fear, including fear of mentally
ill people, is never a legitimate interest for a state action.
** When the Court thinks it sees animus or irrational fear, it applies another self-made sub-category of rational
basis, "rational basis with a bite."

3.1.10 Age Discrimination

Cases
Mass Brd of Murgia was an Ofc in the uniformed branch of the MA State Police. Upon his 50th birthday, the he was required
Retirement to comply with state law and retire, although a physical examination just four months prior had determined
v. Murgia him to be healthy and capable of all his job functions.
Rule: Age classifications are only subject to rational basis review
Analysis: Although there has been age discrimination in the past and at present, it does not represent the same
type of "purposeful unequal treatment" that has been shown on the basis of race or national origin. Given the
relatively small gain in administrative convenience in the present case (Ofcs approaching 50 are physically
examined annually, anyhow), one might argue that the maj is looking at the larger picture of how age
classifications are going to be used later.

Wealth (or lack thereof):

Economic Status is not immutable.
Arguable history of political powerlessness - Rational Basis Scrutiny Applies

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 4 First Amendment: Speech
** Hurtful, Demeaning Words still protected. Just b/c it's unpopular speech, does not mean that it is not protected speech.
Definitions
Pure Speech: Written or Spoken Words
Symbolic Speech: Speech Accomplished through some kind of symbolism
Content-Based Restriction: "Can't talk about Subject X." Example: Can't talk about war in Iraq.
Viewpoint-Based Restriction: "Can talk about Subject X, but only this side." Picking a side w/in subject. Per-Se Rule = BIG NO NO
General Elements "Government's Three Excuses"
1. Is the Speech A. Incitement: Advocating a clear and present danger (Right Now & Reasonably likely to occur)
Unprotected? B. Fighting Words: Words directed to another (not a group), in which words lack any real meaning w/ the only
reason is to provoke an immediate breach of peace. (i.e. Fisticuffs)
C. Obscenity: Sexually Explicit pornographic matl so much that it loses value
2. Is Govt just moving A. Content Neutral
it around? B. Significant (Substantial) Governmental Interest
C. Narrowly Tailored Means (Sort Of)
D. Ample Alternative Channels (Except Porno is Reasonable)
3. Is Govt targeting Message Intended, Message Received: Must you know what the message is or that there is a message at all? Beery
Conduct instead of says: just know that there is a message at all. (Mannequin Ex)
Speech? O'Brien Factors:
A. Governmental Interest is unrelated to suppression of speech (Content Neutral)
- If not, then we're "Outside of O'Brien," and Strict Scrutiny Applies
B. Important (Substantial) Governmental Interest
- Are there "Secondary Effects" that the government is addressing?
C. The Conduct (NOT THE SPEECH) is regulable by the government
D. Means chosen place on speech a burden "no greater than is essential" (Sounds like Narrowly Tailored)
If Govt Runs Out of THEN STRICT SCRUTINY APPLIES
Excuses
POSSIBLE EXAM QUESTION
Texas Judge Ex. Judge says (re same-sex marriage) he doesn't want to be associated w/ same sex marriages. It’s 1 thing if Private Actor
(Priest/Minister), they don't have to. However, State Actors have no choice (Marbury /Cooper); when to practice
law, must take oath, "Swear to uphold 7 protect constitution." When you swear you are swearing to Marbury;
meaning you are bound by decisions of SCOTUS. Judge says "I'll do it but if you are same-sex couple, must sign
acknowledgment that I don't want to, AND you'll have to agree to not discuss same-sex marriage before, during,
and after the ceremony.
1st Amdt: Having State Actor require what people may/may not discuss in presence is a content - based restriction,
which requires Strict Scrutiny.
Prior Restraint: Govt prohibitd to tell people not to say something before say it (that is censorship).
Eq Pro AND Due Process Issues.
** If goes beyond content-based restriction and goes to view-point based restriction, then per-se kicks in and very
angry judge...DONE. Government has NO argument.
Confederate Flag No Court Ruling. Even if a Court Ruling, Still doesn't mean individual cannot fly confederate flag; Just State or State
Issue Actor CANNOT.
HYPO: 2 guys at const. co. were fired b/c confederate flag on their truck. Is that a f1st Amdt violation? NO, not a
governmental action. Doesn't apply to private parties. State statutes and regs might outlaw the practice, but not
constitutional issue.

4.1.1 Incitement
General Elements
1. Advocacy Must be to persude another - Must ask another person(s) to do something
- IF NOT ASKING, THEN NOT ADVOCATING
2. Imminent Condtn Precedent is Time Displacement, therefore NOT IMMINENT. Condtn defeats imminent.
Ex: "If..continue..only then.."
3. Lawless "Illegal thing you are asking them to do"
4. Reasonably Likely to Incite Look to both Speaker AND Audience: Age, Education, Level of Sophistication...etc.
/Induce Illegal Activity Example: A Professor encourages to throw rocks at cars on side of 301.
- Law Student Class v. Elementary Students Class
Cases

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Brandenburg An Ohio law prohibited teaching or advocacy of "criminal syndicalism." Brandenburg (D), a leader in the KKK, made a speech
v. Ohio promoting the possibility of taking "revengence" actions against govt and was therefore convicted under the Ohio Law.
Rule: Speech can be prohibited if it is "directed to an individual, advocating or inciting, imminent lawless action," that is
likely to incite or produce such action.
Analysis: The Act made it illegal to advocate violence, but did not address whether advocacy would actually incite imminent
lawlessness. The mere abstract teaching of the need or propriety to resort to violence is not the same as preparing a
group for violent action. B/c the statute failed to provide for 2nd part of test, it was overly broad and thus violation of 1st
Amdt.
 Here, there were too many conditions, “revengence” was not clearly defined, not immediate. Failed all tests.
** If case does not pass test, then Strict Scrutiny Applies, and the speech is protected.
** Common Sense for an Exam: If we are going to punish people for what said, better be a pretty good reason.
4.1.2 Obscenity
*Genl: obscenity is "not w/in area of constitutionally protected speech or press" due to lack of social value.

Cases
Miller v. Miller (D) conducted a mass mailing campaign to advertise the sale of illustrated adult books. D's conviction was specifically
CA based on his conduct in causing 5 unsolicited advertising brochures to be sent through the mail.
Rule: THE MILLER TEST
1. Whether the average person, applying contemporary community standards, would find that the work, taken as a
whole, appeals to the prurient interest;
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law, and
3. Whether the work, taken as a whole, lacks Serious LITERARY, ARTISTIC, POLITICAL, or SCIENTIFIC value (SLAPS test)
Analysis: Average person = weed out the extremes
Applying contemporary = Organic View; Not Originalist
Community Stds = What is my community? Court gives some lee-way stating never anything bigger than State
Taken as a whole = Not 1 scene, Not 1 image, Not 1 page
Appeal to Prurient Interest = We don't mean good old fashion sex. unusual, unwholesome, & abnormal.
If Lacks SLAPS value, then obscene.
Ample Alternative Channels: Law has to specifically define the obscenity therefore statute itself has to be obscene.
** KNOW FOR EXAM: New England/Midwestern = Region; Not Community
NY v. Ferber Ferber was a storeowner who sold material showing children under the age of 16 engaged in sexual activities. Use of
(Child Porn children in pornographic materials has increased over the years causing the introduction of many state laws prohibiting
Case) activities.
Rule: The prohibition on the sale and distribution of child pornography is presumed unconstitutional even if the material
is not obscene.
Analysis: Protection of children is a legitimate state interest that outweighs an adult's freedom to enjoy sexually explicit
material. Has to be a minor, not just look like one, in order to have presumption.

4.1.3 Fighting Words

Definitions
Epitaphs or insults that serve no other purpose than to invite “fisty-cuffs.” These are words that are directed to a specific individual and the
speech does not express any meaningful idea.

Cases
Chaplinsky v. New NH Statute prohibited any person from addressing any offensive, derisive or annoying word to any other person who is on
Hampshire any street or public place or calling him by any derisive name. Chaplinsky called a City Marshal a "God Damn Racketeer"
and "a damned fascist" in a public place and was therefore arrested and convicted under the statute.
Rule: Imminent "Fighting words" are not entitled to protection under the First Amendment.
Analysis: "Fighting Words" are intended to inflict harm; bona-fide criticisms are intended to communicate ideas.
Another difference may lie in the differing likely effects of each:
"fighting words" are likely to provoke the average person to violence while bona fide criticisms are not.
Cohen v. CA Cohen was observed in the LA County Courthouse, in the corridor outside the municipal court, wearing a jacket bearing the
(Offensive Words) words "Fuck the Draft." At the time, there were women and children present in the area. After he was arrested, he
testified that he wore the jacket as a means of informing the public of the depth of his feelings against the Vietnam War
and the draft. D did not engage in, or threaten to engage in, nor did anyone as the result of his conduct in fact commit or
threaten to commit in any act of violence. D did not make any loud or unusual noise, nor was there any evidence that he
uttered any sound prior to his arrest.
Rule: Emotive speech that is used to get attention is protected by the 1st Amdt.

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 Analysis: It is not enough to find speech unprotected merely because it creates a disturbance to the public. This is not an
obscenity case because his message is not erotic. This case does not involve "fighting words" because his message is not
directed to another person. His message constitutes emotive speech b/c it seeks to get our attention.

4.1.4 Time - Place - Manner Restrictions

General Elements
Content Neutral The restriction must have nothing to do with the subject matter. If there is a viewpoint restriction then it
is per se an invalid law
Significant Govt Interest Is there a significant (substantial or important) government interest?
Narrowly Tailored Means In the context of time, place, manner restrictions, “narrowly tailored” is loosely applied which means it’s
not really narrowly tailored. In an essay, say it is loosely applied.
Ample Alt Channels If govt stops people from speak’g then they need another place or time to make an impact
** Does not apply to pornography – only needs reasonable alternative channels
Cases
Clark v. In ‘82, Park Service issued a renewable permit to D/ Community for Creative Non-Violence (CCNV), to conduct
Community for demonstration about the plight of the homeless. Park Service, however, denied CCNV's request that demonstrator be
Creative Non- permitted to sleep in the tents.
Rule: Symbolic expression may be forbidden or regd if conduct itself may constitutionally be regd, if the reg is
Violence
1) narrowly drawn to further a
(Tent City)
2) substantial govt interest that is
3) unrelated to the suppression of speech. (Same elements as the test in O'Brien) Add in
4) a 4th rqmt for "Ample Alternative Channels" (Must give a reasonable alternative)
Analysis: The reg forbidding sleeping is defensible as both a time, place, & manner restriction and as reg of symbolic
conduct. Ample = plenty
** Narrowly tailored means really means: A genuine fit between Means - Ends
Renton v. City ordinance prohibits adult motion picture theatres from being located within 1,000 feet of any residential zone, SFR or
Playtime Theaters MDU, church, park or school.
(Near Obscene Rule: For Porn Cases, "Ample" goes down to "Reasonable" for porn cases.
Analysis: Ordinance does not ban adult theatres altogether, but rather provides that they may not be located in certain
Speech)
areas, making it a time, place, manner restriction. City Council was predominantly concerned w/ the secondary effects
(always terminology used in a porn case to show content neutrality) of theatres and not content of adult films
themselves.
VA Pharmacy v. Virginia will charge a licensed pharmacist of being unprofessional if he advertises the amount he charges for Rx drugs.
VA Council Rule: Commercial Speech, like other forms of speech, is protected under 1st & 14th Amdt
(Commercial Speech) 1) The Regs are justified w/o reference to the content of the regd speech
2) That they serve a significant & legitimate governmental interest, and
3) In doing so, they leave open ample alt channels for communication of the info.
Analysis: Similar to other forms of speech, the government can still regulate if it feels that it has a legitimate interest in the
regulation. Here, interest is State can't even get passed that. State's interest is to keep it professional and not
unprofessional dealings. However, unless doctor or lawyer type, Pharmacist not seen as professional in court's eyes.
Ohralik v. Ambulance chaser gets in trouble. An Ohio lawyer, contacted an accident victim at the hospital and offered to represent
Ohio State Bar Assn. her, where she signed a contingent fee agreement. Ohio law prohibits in-person solicitation by lawyers.
Rule: The State does not lose its power to regulate commercial activity deemed harmful to the public simply because
speech is a component of that activity.
Analysis: Protection of the public from those aspects of solicitation that involve fraud, undue influence, intimidation,
overreaching, and other forms of "vexatious conduct" is a legitimate and important state interest.

4.1.5 Conduct and Speech Hybrid

Definitions
Symbolic Speech is both conduct and speech (does not apply to written or spoken speech). The act sends a message.
 The govt is not after the speech or the message but is trying to prevent the conduct.
 The government cannot regulate symbolic speech, only conduct.
General Elements "Government's Three Excuses"
Is it speech? Was there a message intended/message received?
Does the conduct signify a message and the message is intended & received.
Content Neutral The restriction must have nothing to do with the subject matter. If there is a viewpoint
restriction then it is per se an invalid law.

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Significant Govt Interest Is there a significant (substantial or important) government interest?
Unrelated Conduct Regulation of conduct must be unrelated to the speech
Conduct can be regd by govt

Cases
US v. O'Brien O'Brien and 3 companions burned their Selective Service regis certifis on the steps of the S Boston Courthouse.
Immediately after the burning, D stated to FBI agents that he had burned his regis certif b/c of his beliefs, knowing that
he was violating fed law.
Rule: A governmental reg of expressive conduct is sufficiently justified if it:
1) If it furthers an important or substantial governmental interest;
2) If the governmental interest is unrelated to the suppression of free expression AND
3) If the incidental restriction on alleged 1st Amendment constitutional freedoms is no greater than is essential to
the furtherance of that interest (narrowly tailored).
Analysis: Although the initial purpose of the draft card is to notify, it serves many other purposes as well. These purposes
would be defeated if the card were to be mutilated or destroyed.
Texas v. Johnson Respondent demonstrated by burning a US Flag in front of the Dallas City Hall.
Message Intended, Message Received (quite obvious)
1. Is it unprotected?
A) Incitement? No, not advocating anything
B) Fighting Words? No
C) Obscene: Most American would say yes, but legally no.
So, not only speech but it is protected.
2. Time, Place, Manner? No, because that's not even at issue here.
3. O'Brien Test:
A) Content Neutral? It is not, then no need to continue O'Brien. Once court determines not CN, then we are therefore
OUTSIDE O'BRIEN
SO what happens to all government excuses? Gone.
Why not CN? Statute doesn't make it a crime to burn or destroy objects. Only a crime if knowing that it'll offend
someone that will see or discover it. "Law criminalizes offensive messages" disrespectful of "monuments, burial
places, and flags."
Analysis: Since court says CN, then just need to survive 2 prongs. If not CN, then flicked outside of framework and
applying REAL Strict Scrutiny! Stricken down. Facial challenge to law.
** COULD BE FINAL ESSAY!
** How to fix statute? Take out all the offending stuff and make sure it couldn't even be interpreted that way. Keep it
to public property. Example: Illegal to damage in any way to damage/deface a flag or monument on public property.
** If only speech, then no O'Brien test b/c written/spoken words are pure speech, can't use O'Brien.

4.1.6 Prior Restraints

History
Censorship: "Stopping you from speaking before you even say anything." I've reviewed what you're going to say and I'm not allowing you to even
say it. Two Ways:
1) Govt imposes some kind of licensing scheme (Can't publish book or whatever until we review and approve it)
2) Judicial branch enlists courts to stop someone from speaking (Stopping this person from publishing X)
BASICALLY: PRESUMED UNCONSTITUTIONAL
** Not tested on as essays because simply presumed unconstitutional

Cases
New York Times v. The US sought to enjoin the NY Times and Washington Post from publishing contents of a confidential study about
US the Government's decision-making with regards to Vietnam Policy.
Rule: Govt bears heavy burden of showing sufficient justification for the imposition of a prior restraint on speech.
An injunction that seeks to proactively quash speech is impermissible, unless imminent harm can be proven.
Analysis: Any prior restraint of info is necessarily an abrogation of the constitutionally protected rights of the press.
Branzburg v. Branzburg observed making of hashish and was later called before a grand jury to implicate persons involved. 2 of
Hayes the other Petitioners, Pappas & Caldwell, both were Black Panthers and were later called to a fed grand jury to
discuss their findings. All 3 reporters refused to participate in the grand juries claiming a newsman's privilege
Rule: Requirg reporters to disclose confidential info to grand juries serves a "compelling" state interest and does
not violate the 1st Admt. If a reporter, you have no privilege, & if subpoenaed to testify, then you must.
Times Film v. Chicago Chicago law requires submission of all motion pictures for examination or censorship prior to their public exhibition
and forbids their exhibition unless they meet certain standards. P applied for a permit to exhibit a certain motion
picture and tendered required license fee, but permit was denied solely b/c P refused to submit film for exam

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 Rule: Pre-screening for obscenity is OK, but all other prior restraints are not allowed.

4.1.7 Speech Forums

History
When do you let the government tell you WHERE you can exercise your right to free speech?
3 FORUMS
1. Traditional: Traditionally used for the purposes of 1st Amendment free speech such as capitol building, city hall, public roadways and sidewalks.
Government may not shut down speech, but may place reasonable Time, Place, Manner restrictions.
* International Society for Krishna v. Lee (P.991): ISFK is a religious group who distributes literature and solicits funds in airports in NY. Port
Authority of NY restricts groups like P to soliciting and distributing on sidewalks of airport.
Rule: Governmental regulation of speech on governmental property is valid if it is reasonable and the primary purpose of the property is not
to promote free speech. Analysis: The tradition of airport activity does not demonstrate that airports have historically been made available for
speech activity. Furthermore, they have never been intended for such activities.
2. Limited/Designated: School/University property opened up to the public. If the government can designate it as open, they can also close it at will.
3. Non-Forum: Government property where speech can be fully restricted (Example: Court Room)
** In a public school, you do not get rid of 1st Amendment rights at the gate.

Definitions
School Sponsored v. Non-Sponsored Speech
School Sponsored: Sporting Events, School Assemblies, Yearbooks are sponsored by the school itself (the name of the school is on it), therefore it is
the school's business what is said
- They get leeway in restricting what may or may not be said
Non-Sponsored Speech: Not stamped with the imprimatur (approval) of the school, and is subject to some scrutiny, but is not allowed to be
completely banned.
- The setting and maturity levels in a school are different, and have a different level of scrutiny applied.

POSSIBLE EXAM QUESTION

Student Example Student walks into school wearing t-shirt "Don't mess w/ me or I'll drop you like the North Tower" – w/in the year of 9/11.
Was there a fight or disturbance? No. Even w/o substl disruption happening, still can send him home w/o any fed judge
saying different.
Publishing Example School refused to publish matl of student b/c ungrammatically and written poorly. A school, when it is associated, can even
stop speech that is ungrammatical or poorly written.

Cases
Hazelwood v. The advanced journalism class was responsible for writing the school paper. Usually 4,500 copies were distributed to the
Kuhlmeier school and members of the community. The school principal always reviewed the page proofs prior to the printing. On this
occasion, he objected to two of the articles scheduled for inclusion and decided to print the paper without the articles.
One described the pregnancy of students and included specific sexual content while the other discussed the impact of
divorce on students in the school. The parents of the students did not consent to this article.
Rule: School can pertain, punish, control it as long as school's action is rationally related to legitimate pedagogical
(educational) interest.
Bethel v. Fraser The Respondent, a student at Bethel High School, made a speech in front of an assembly that was considered to be lewd. In
reaction to the speech, he was suspended from school. Respondent brought suit to enjoin the punishment, stating that his
speech was given within his 1st Amendment constitutional rights.
Rule: Court says punishing the kid was making a point and rationally related to a pedagogical interest, which Fraser
torpedoed the lesson plan.
The Infamous Speech: "I know a man who is firm - he's firm in his pants, he's firm in his shirt, his character is firm -- but most
of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If
necessary, he'll take an issue and nail it to the wall. He doesn't attacks things in spurts -- he drives hard, pushing, and
pushing until finally -- he succeeds. Jeff is a man who will go to the very end -- even the climax, for each and every one of
you. So, vote for Jeff for ASB Vice President -- he'll never come between you and the best our high school can be."
Tinker v. In protest of the Vietnam War, several students wore black armbands to school. No uniform at school so not school -
Des Moines Schools sponsored, so less leeway. School adopted a policy that any student wearing the bands would be suspended for causing
disruption.
Rule: 2 Ways School can win the banned speech argument for non-sponsored speech.
1) Material and Substantial Disturbance in Discipline (Breach of peace or interfering with what you're doing, violence,
riots, fights) OR
2) Material and Substantial Disruption in the Ability of the School to operate as a School ("The Algebra Test" Can you still
teach algebra? Swastika shirt example)

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 Analysis: Taken in context of time, people showing up w/ black arm-bands result in fights? No. Can you hold class w/o the
whole thing falling apart? It's the Vietnam era, whole country is either for or against it. So, Yes.
* This case presents landmark decision that a student does not shed his personal rights at schoolhouse door.

5 First Amendment: Religion

History
Constitution says exactly 3 things regarding Religion:
1. No Religious Test for Holding Public Office (Not supposed to Matter)
2. Congress (and now all government) may not establish a religion.
3. Government cannot interfere with the free exercise of religion.
Definitions
Establishment Clause: Means to create, build, make, or show - Cannot impose religion or non-religion
Free Exercise Clause: W/ regard to religion you have picked for yourself, govt cannot tell you how to practice it.
- Cannot tell you how to practice religion
Secular Purpose: Non-religious Interest. What is the government trying to achieve? Something non-religious.
Primary Effect: Primary = Main, First, Highest. Effect = Touching, Moving something.

General Elements "3 Boxes of Establishment Clause"

1. Government Aid/Material to Religious 1. Secular Purpose Requirement
Institutions 2. Primary Effects Test: (Lemon - Agostini Blend) When does a law or policy have primary effect to
promote or inhibit religion?
A) Result in Indoctrination
B) Define Recipients by Reference to Religion
C) Result in Excessive Entanglement (Zelman): (determined by)
1) Character & Purpose of Institutions benefitted,
2) Nature of Aid
3) Resulting relationship between Govt-Religious Org
2. Public Schools and Religion 1. Secular Purpose Requirement
2. Coercion
3. Displays (Either through building or 1. Secular Purpose Requirement
tolerating) 2. Endorsement

General Elements "Free Exercise Clause

Generally Applicable If the law is generally applicable, then Rational Basis Applies
1. Exception: Built - In Hearings If the law has a built - in hearing, then Strict Scrutiny Applies
2. Exception: Built - In Exceptions If the law has a built - in exception, then Strict Scrutiny Applies

5.1.1 The Establishment Clause

General Elements "3 Boxes of Establishment Clause"
1. Govt Aid/Matl to 1. Secular Purpose Reqmt: Non - religious Intent. What is the government trying to achieve?
Religious Institutions 2. Primary Effects: (Mitchell, Lemon /Agostini) When does a law have a primary effect to promote or inhibit religion?
I R E: Indoctrination, Recipients of aid defined by religion, or Excessive Entanglement between Govt-Religs Org
A) Result in Indoctrination: (Mitchell) Causation Test. Program causes someone to believe that way. If govt's
program results in religion or non-religion, then down it goes!
B) Define Recipient by Reference to Religion:
Ex: Hillsborough Cnty Commission wants to give Good Citizen Scholarships to Hillsborough Comm College for students
demonstrate good citizenship and involved in the community. If going to give out scholarships, then going to have
to define who qualifies as a good citizen, who receives the scholarship (the recipient).
Attributes may exclude boy scouts/girl scouts, Comm Service (picking up track off streets just because), Camp
Counselor, Student groups/Extracurricular Orgs, Participation in Church & Worship Activities (now just defined
recipient by reference to religion and just sank their own program). So, if you want scholarship to go to someone
who participates in church services, better find another way to say it. * Say: "Person involved in non-profit orgs
which conduct these activities: substance abuse rehabilitation, food for poor).
C) Result in Excessive Entanglement: (Too much interference or involvement or connection with government). Here is
the problem, when the govt gives you money, the org has obligation to follow the money it gave to you;
essentially, you're supposed to do what government told you to do with it. Govt is so entangled that it's basically
running the organization. If religious, then govt is running religious org.

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 ** Here's how to get around that. The Straw-Man Transaction. (Voucher Programs). Not an arms-length
transaction...through a third party. Don't give money to schools, give it to parents or to non-profit orgs and tell
them (distribute however they want to), No more Excessive Entanglement. (Zelman Case)
2. Public Schools and 1. Secular Purpose Requirement
Religion 2. Coercion: Would non-participants feel "left out" or "alienated"?
3. Displays (Either bldg 1. Secular Purpose Requirement
or toleratg) 2. Endorsement: Show support for; Look at the display as a whole (Allegheny County Case)

5.1.2 Government Aid to Religious Organizations

Cases
Lemon v. State reimburses parochial schools for certain expenses associated with the education of its children
Kurtzman Rule: To be valid, a statute must have:
1. Secular Purpose, 2. Neither promote nor inhibit religion, AND 3. Must not excessively entangled church and state
Analysis: Excessive Entanglement is determined by character & purpose of the institution benefited, the nature of the aid
given, and the resulting relationship between govt and church.
Mitchell v. A fed program distributes $ to state & local agencies to lend educatl matl & equip to both pub and priv schls. Program
Helms requires the aid to be used for "secular, neutral, and non-ideological" matls.
Rule: Giving fncl aid to a private school in the same manner and for the same thing as a public school is allowed if the
priv schl is only furthering secular purposes.
Analysis: Causation (P says by giving matl aid to relig orgs, it frees their $ up to make it easier to do relig instructn). Crt says
Causation. Relig indoctrine doesn't come from science books or math books. Qualify for aid: be at any school that applies
for it. Where is religion in list of qualifications? No where. Court says no violation.
Zelman v. Public schools were deemed failures, and the legis enacted a Pilot Project Scholarship to address the problem. It provided
Simmons-Harris tuition vouchers for up to $2,500 a year to some parents of students in Cleveland City School District to attend
(Straw-Man) participating public or private (does not say religious) schools. Checks were payable to the parents (straw-man), who
then endorse them over to the schools, both public and private.
Rule: When a govt aid program is neutral w/ respect to religion, and provides assistance to people (not govt) who may
choose to give funds to religious institutions, program does nothing to challenge the Establishment Clause.

5.1.3 Religion and Public Schools

Cases
Wallace v. Jaffree In ‘81, AL legis modified a ‘78 law that allowed a moment of silence for 'meditation.' Amended for "meditation or prayer."
The sponsor went on record as stating that the sole purpose of this change was to bring prayer back into schools.
Rule: Primary Effects is replaced with coercion (to force).
Analysis: Diff test for schls b/c there is no aid from govt. Still require Secular Purpose but replace Primary Effects w/
Coercion. Cannot have choices of 1) go along w/ whatever is being said or done (violating own pers religion) or 2. Not go
along w/ it (get ridiculd by students). However, here, it doesn't even get to coercion factor b/c doesn't get pass Secular.
Stone v. Graham Law requires posting 10 Cmdmts in every schl rm but purchased w/ priv $. Schl dist didn't pay for this. Marked w/ notation
"secular purpose." Judge universally says "Its religious...comes from bible."
Rule: Posting 10 Cmdts, even if bought privately, does not have secular purpose.
Epperson v. Arkansas Banning a teaching of "creationism" in science class.
Rule: Topic that comes out of bible and taught as science curriculum is not secular purpose.
Analysis: Creationism comes from bible, putting that as part of curriculum has religious purpose
Edwards v. Aguillard Creation science rather than creationism. "
Rule: If a statute facially requires respect of any religious institution, it will not be upheld against constitutional scrutiny -
fails the secular purpose test.
Analysis: "Creation Science," as an alternative to the theory of evolution has religious undertones and the teaching of its
doctrine violates the Establishment Clause
** If you want to teach evolution, then take it out of science curriculum and put it in "philosophy" or "religions around the world."
5.1.4 Religious Displays on Public Property
History
If you are putting display on public property, then government is "taking sides" on religion.
1) What Symbol? 2) Where is it? 3) What is Around it? At what point has the government gone too far?
Cases
Allegheny Cnty v. 2 public-sponsored holiday displays in Pittsburgh, were challenged by the ACLU
ACLU 1) Nativity Scene (crèche), placed on the grand staircase of the Allegheny Cnty Courthouse, ALONE.
2) 18-Foot Menorah, placed just outside County Bldg next to city's 45’ decorated Christmas Tree and Sign Saluting Liberty.
Rule: You have to look at entirety of display to determine whether a violation of the Establishment Clause has occurred.

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 Analysis: Maj held violation of Establishment Cls by displaying a crèche in Cnty courthouse, b/c "principal or primary effect
"of the display was to advance religion when viewed in overall context. Nothing distracted from that message – so no go
A different maj held the menorah display did not have prohibited effect of endorsing religion, given its "particular physical
setting". It's combined display w/ a Xmas tree and a sign saluting liberty did not endorse either faiths, but simply
recognized the holiday season. Lynch – Have “other crap” around it!
Van Orden v Perry Where 10 commandment statue was giftd to TX for display on capital grounds, SCOTUS found it did not, as viewd by an
avg citizen give a reasonable impression that TX promotes any particular religion. There were 22 AC’s w/ several other
displays.

5.1.5 Free Exercise Clause

History
When it comes to Free Exercise Clause, the govt is permitted to question and probe as to the sincerity of your belief (Pastapharians..people who
believe in a god of Pasta). That's the only question that you're govt can ask "whether you hold the believes." Govt cannot ask whether the
beliefs are reasonable. Even if the govt is impinging on some type of belief, sometime you just have to follow the law.
** Anytime govt does something that interferes, then the law is invalid as applied to you...If that was the case, then how many atheist would there
be? None. Public Policy: Can't say any b/c anyone will just claim religion and not follow rules.
General Elements "Free Exercise Clause
Generally Applicable Applicable to everyone (Speeding, Stop Signs, Murder, etc). Applies to everyone the same way, without any
subtle hints or exceptions for certain religions. (If GA, then have to come at gov with some other claim
like EP or SDP).
If law is generally applicable, then Rational Basis Applies, (Peyote Case)
1. Excep: Built - In Hearings If law has a built - in hearing, then Strict Scrutiny Applies, (Hobbie Case)
2. Excep: Built - In Exceps If law has a built - in exception, then Strict Scrutiny Applies, (Church of Lukumi Case)

Cases
Employment Division Smith (Respondent) sought unemployment compensation benefits after he was fired from his job for using peyote in a
v. religious ceremony.
Smith Rule: The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law
of general applicability on the ground that the law makes criminal conduct that his religion prescribes.
Analysis: The Free Exercise Clause -
general applicability - OK
 prohibits govt interference w/ religious beliefs, but genlly does not prohibit reg of conduct. If the govt action regs
genl conduct, including religious conduct it is valid.
 does not require religious exemption from generally applicable govt regs that happen to burden religious conduct.
Hobbie Hobbie, a recent Sabbatarian convert was discharged by her employer after she refused to work on Saturdays.
v. Commission disqualified P from receipt of unemployment benefits.
Unemployment Rule: 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
Appeals Commission
pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.
Analysis: State's qualification of P forced her to choose between following the precepts of her religion and forfeiting her
Built - In Hearings: SS
benefits, or abandoning a precept of her religion in order to continue working. The State's legislative ultimatum is an
undue burden upon the free exercise of religion that fails under STRICT SCRUTINY.
Church of Lukumi Santeria is a religion that calls for animal sacrifices to keep the spirits alive. In response to the news that a Santeria
Babalu Aye church was to be built in the city of Hialeah, the city council held an emergency public session in order to pass 3 laws
v. outlawing any animal sacrifices in connection with Santeria rituals. All ordinances were passed by a unanimous vote.
Violations were punishable by fines and jail time.
City of Hialeah
Rule: A law burdening religious practice that is not neutral or not of general application must undergo the most
rigorous of scrutiny (STRICT SCRUTINY).
Built - In Exceptions: SS
Analysis: Where the govt restricts only conduct protected by 1st Amdt of Constitution and fails to enact feasible
measures to restrict other conduct producing substl harm or alleged harm of the same sort, the interest given in
justification of restriction is not compelling.
** If want to restrict animal sacrifices as a matter of public safety, then just put sanitary instructions and regs...take
religion out of the picture. Common Sense.

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