Con law hw for 3/14-3/28

VII. FUNDAMENTAL RIGHTS UNDER DUE PROCESS & EQUAL PROTECTION

3/14
C. Reproductive Autonomy, pp. 977-988 (Skinner v. Oklahoma; Griswold v.
Connecticut; Eisenstadt v. Baird);
Skinner v. Oklahoma
 Brief Fact Summary. The Petitioner, Skinner (Petitioner), was sentenced to
involuntary sterilization under Oklahoma’s Habitual Criminal Sterilization Act
(the Act) and now alleges that the Act deprives him of equal protection under the
laws
 Synopsis of Rule of Law. The right to have offspring is a fundamental right,
requiring a compelling state interest to interfere with it.
 Facts. Oklahoma defined a “habitual criminal” as a person who, “having been
convicted two or more times for crimes ‘amounting to felonies involving moral
turpitude’ either in Oklahoma or another State, is thereafter convicted of such a
felony in Oklahoma and is sentenced to a term of imprisonment in a Oklahoma
penal institution.” Such habitual criminals could be subject to forced sterilization.
The Petitioner had been twice arrested for theft offenses before being arrested and
confined for armed robbery. During his third incarceration, the Act was passed
and proceedings were instituted against him.
 Issue. May the State sterilize an individual against his will for being convicted of
three felonies involving moral turpitude?
 Held. No. Supreme Court of Oklahoma ruling reversed.
 Justice William Douglas (J. Douglas) notes that sterilization of habitual offenders
in no way guarantees that new offenders will not be born. Furthermore, there is no
guarantee that habitual offenders would spawn offenders themselves.
 J. Douglas cannot justify the distinction between larceny (involving moral
turpitude) and embezzlement (not involving moral turpitude) in the eyes of the
statute. This is clear discrimination in J. Douglas’s view. In terms of fines and
imprisonment the crimes are identical to the State. Only when it comes to
sterilization do the crimes differ. As such, equal protection is violated.
 Concurrence. Chief Justice Harlan Stone (J. Stone) concurs in the judgment, but
rests his decision on due process grounds, arguing that the invasion of personal
liberty is too great.
 Discussion. Skinner represents the Supreme Court of the United States’ growing
awareness of the right to reproductive autonomy. Unlike later cases that focus on
due process and a right to privacy, the majority in Skinner holds that sterilization
in the present situation violates equal protection principles.
Griswold v. Connecticut
 Brief Fact Summary. The Appellants, Griswold and others (Appellants), was
arrested for providing information, instructions, and medical advice to married
persons as a means to prevent conception.
 Synopsis of Rule of Law. Intimate marital relations lie within a zone of privacy
into which the government may not intrude.
 Facts. Connecticut law criminalized the use of chemical and mechanical
 contraception, as well as the counseling and aiding the use of such contraception.
The Petitioner was the Executive Director of the Planned Parenthood League of
Connecticut. The Petitioner was arrested after providing information and
instructions on birth control methods to married people.
 Issue. May the government ban all use of contraceptives?
 Held. No. Appeals Court ruling reversed.
 Justice William Douglas (J. Douglas) describes the “penumbras[] formed by
emanations from specific guarantees of the Bill of Rights.” In particular, he
describes the fact that the State cannot “contract the spectrum of available
knowledge” consistent with the First Amendment of the United States
Constitution (Constitution). He also describes the rights to “privacy and repose”
suggested by many of the Amendments in the Bill of Rights.
 J. Douglas suggests that the marital relationship lies at the center of such a zone of
privacy. As the law prohibits the use of contraceptives, rather than their
manufacture or sale, the law is aimed at the core of the marital relationship. He
argues that this is too broad a sweep to be a constitutional exercise of state
authority.
 Dissent. Justices Hugo Black (J. Black) and Potter Stewart (J. Stewart) dissented.
They admit they find the Connecticut statute offensive, but believe that unless
there is a specific constitutional provision otherwise, the remedy for such
legislation is through the political branches, not the judiciary.
 Concurrence.
 Justice John Marshall Harlan (J. Marshall) argues that the statute should be
overturned on Due Process grounds, as the enactment violates “basic values
‘implicit in the concept of ordered liberty.’”
 Justice Byron White (J. White) concurs on due process grounds, believing that the
purpose of the statute is to enforce policies disfavoring illicit sexual contact. He
notes that denying married couples the right to contraception in no way
strengthens that policy.
 Justice Arthur Goldberg (J. Goldberg) believes that the Ninth Amendment of the
United States Constitution (Constitution) guarantees that the marital relation is a
right retained by the people, and as such, Connecticut does not have the
constitutional authority to abridge that relationship.
 Discussion. The opinion of the Court in Griswold is unusual in that it relies on
inferred rights in the Constitution. Furthermore, it is difficult to distinguish how
the Supreme Court’s opinion is any more “correct” than the concurring opinions
offered.

Eisenstadt v. Baird
 Brief Fact Summary. The Appellee, Baird (Appellee), was arrested for lecturing
on contraception to a group of University students and distributing contraceptive
foam to a student after the lecture.
 Synopsis of Rule of Law. The State may not discriminate between married and
unmarried individuals in prohibiting the distribution of contraception.
 Facts. Massachusetts law created three classes of people receiving contraceptive
devices and drugs: (1) married persons could receive contraceptives to prevent
 pregnancy, but only from doctors or druggists on prescription; (2) single people
may not receive contraceptives from anyone to prevent pregnancy and (3) anyone
may receive contraceptives from anyone to prevent the spread of disease.
 Issue. May the state discriminate between married and unmarried couples in
prohibiting birth control methods?
 Held. No. Appeals Court ruling affirmed.
 Justice William Brennan (J. Brennan) notes that “if the right to privacy means
anything, it means the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child.”

 Dissent. Chief Justice William Burger (J. Berger) argues that there is nothing in
the Fourteenth Amendment of the United States Constitution (Constitution) that
suggests birth control must be made available on the open market.
 Discussion. A right to privacy is again recognized in Eisenstadt. Here, the right to
contraception is extended to unmarried individuals, as well.

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3/16
pp. 988-1010; 1031-1036 (Roe v. Wade; Planned Parenthood v. Casey)

Roe v. Wade
 Brief Fact Summary. The Petitioner, Jane Roe (Petitioner), was pregnant and
challenged the Texas statute prohibiting her from acquiring an abortion.
 Synopsis of Rule of Law. The State has a limited ability to affect a woman’s
ability to procure an abortion.
 Facts. The Petitioner was pregnant with an unwanted pregnancy and brought suit
against the State of Texas for prohibiting medically licensed professionals from
performing abortions.
 Issue. To what extent may the State regulate a woman’s ability to procure an
abortion?
 Held. It varies, depending on the trimester during which the operation occurred
and whether or not the woman’s life and health is taken into account.
 Justice William Brennan (J. Brennan) produced a continuum. He begins by noting
that a statute, which only excepts from criminality those abortions designed to
save the mother’s life is unconstitutional.
 Prior to the end of the first trimester, only the pregnant woman and her physician
may make decisions regarding the termination of a pregnancy.
 During the second trimester, the state may regulate abortion in manners
reasonably related to maternal health.
 During the third trimester, the state may even prohibit all abortion procedures,
except where the life or health of the mother is at risk.
 Dissent. Justice William Rehnquist (J. Rehnquist) dissents, largely arguing that
the three-trimester approach offered by the majority speaks more of judicial
legislation than constitutional analysis.
  Discussion. The right to privacy is extended further again. Roe is the central case
involving a woman’s right to terminate a pregnancy. Roe’s three-trimester
approach is no longer used by federal courts in analyzing abortion legislation, but
rather a more fluid approach outlined in

Planned Parenthood of Southeastern Pennsylvania v. Casey

 Brief Fact Summary. A Pennsylvania statute required notification of the husband
or various other stringent notifications prior to permitting an abortion
 Synopsis of Rule of Law. Requiring spousal notification prior to an abortion is
unduly burdensome and unconstitutional. Requiring parental notification in the
case of minors is constitutional so long as there is a medical emergency exception
and a judicial bypass procedure.
 Facts. A Pennsylvania abortion law permitted abortion on a married women only
after having received a signed statement from the woman that she has notified her
husband, except in cases of medical emergency. The woman also had the option
of providing a signed statement that her husband was not the man who
impregnated her; that her husband could not be located; that the pregnancy was
the result of a reported sexual assault; or that notifying the husband will cause him
or someone else to inflict bodily injury upon her. Physicians performing abortions
without the required statement will have their licenses revoked and are liable for
damages to the husband.
 Issue. Does the spousal notification requirement place an undue burden on
married women who seek abortions in violation of the United States Constitution?
 Held. The Court rejects the common law view of the married couple as one and
finds that the spousal notification requirement is unduly burdensome and a
violation of the Constitution.
 Common law provided that a married woman had no legal existence separate
from her husband. However, it is clear that state regulation of abortion has a far
greater impact on the mother’s liberty than the fathers. Although the husband has
a substantial interest in the unborn fetus, when balancing between the mother and
father’s interest, the balance weighs in the mother’s favor.
 It is well documented that spousal abuse occurs in a variety of different ways, and
can be brought on by knowledge of pregnancy. A significant number of women
would be deterred from receiving abortions under this law as if the state had
completely outlawed abortion. Spousal notification would essentially enable
many husbands to wield a veto over his wife’s decision.
 So long as there is an adequate judicial bypass procedure permitting minors to
petition a court to allow their abortions, it is constitutional to require
unemancipated minors to receive parental or guardian consent. Medical
emergencies are the exception.
 Dissent. The spousal statute requires notification, not consent. We believe that the
spousal notification statute furthers legitimate state interests, such as promoting
the integrity of the marital relationship.
 Discussion. The majority’s holding was largely based on testimony suggesting
that the spousal notification requirement would result in either spousal abuse or
the decision to not receive an abortion solely to avoid such abuse. The dissent
 feels that open discussion between spouses might lessen concerns and allow births
when abortion seemed to be the only option to the wife.

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3/21
pp. 1010-1026 (Gonzales v. Carhart);
Gonzales v. Carhart
 Facts of the Case: In 2003, Congress passed and the President signed the Partial-
Birth Abortion Ban Act. The controversial concept of partial-birth abortion is
defined in the Act as any abortion in which the death of the fetus occurs when
"the entire fetal head [...] or [...] any part of the fetal trunk past the navel is outside
the body of the mother." Dr. Leroy Carhart and other physicians who perform
late-term abortions sued to stop the Act from going into effect. The plaintiffs
argued that the Act could apply to a more common abortion procedure known as
"D&E;" ("dilation and evacuation"), as well as to the less common "intact D&E;,"
sometimes called D&X; ("dilation and extraction"). With this application the Act
would ban most late-term abortions and thus be an unconstitutional "undue
burden" on the right to an abortion, as defined by the Supreme Court in Planned
Parenthood v. Casey. The plaintiffs also argued that the Act's lack of an exception
for abortions necessary to protect the health of the mother rendered it
unconstitutional under the Supreme Court's decision in Stenberg v. Carhart,
regardless of Congress's finding in the Act that partial-birth abortions are never
medically necessary.
 A federal District Court agreed and ruled the Act unconstitutional on both
grounds. The government appealed to the Court of Appeals for the Eighth Circuit.
The government argued that the Act only bans a narrow category of abortion
procedures, and that a health exception is not required when Congress determines
that a banned abortion procedure is never necessary for the health of the mother.
The Eighth Circuit disagreed and upheld the District Court, ruling that a health
exception is required for all bans on abortion procedures when "substantial
medical authority" supports the necessity of the procedure. The Circuit Court
ruled that the ongoing disagreement among medical experts over the necessity of
intact D&E; abortions was sufficient to establish that the Act was unconstitutional
without a health exception. The Circuit Court did not reach the question of
whether the Act was so broad as to qualify as an unconstitutional "undue burden."
 Question: Is the Partial-Birth Abortion Ban Act of 2003 an unconstitutional
violation of personal liberty protected by the Fifth Amendment because the Act
lacks an exception for partial-birth abortions necessary to protect the health of the
mother?
 Conclusion: No. The Court ruled by a 5-4 vote that Congress's ban on partial-
birth abortion was not unconstitutionally vague and did not impose an undue
burden on the right to an abortion. Justice Anthony Kennedy wrote the opinion for
the majority. The Court held that, under the most reasonable interpretation, the
Act applies only to the intact D&E; method (also known as "partial-birth
 abortion") and not to the more common D&E; procedure. The Act's application
was limited by provisions that restrict enforcement to cases where the physician
intends to perform an intact D&E; and delivers the still-living fetus past specific
"anatomical landmarks." Because the majority found that the Act applies only to a
specific method of abortion, it held that the ban was not unconstitutionally vague,
overbroad, or an undue burden on the decision to obtain an abortion. The Court
also held that Congress, after finding intact D&E; never to be medically
necessary, could validly omit a health exception from the ban, even when "some
part of the medical community" considers the procedure necessary. To require the
exception whenever "medical uncertainty" exists would be "too exacting a
standard to impose on the legislative power [...] to regulate the medical
profession." The Court left open the possibility that an as-applied challenge could
be brought against the Act if it were ever applied in a situation in which an intact
D&E; was necessary to preserve a woman's health. Justice Ginsburg's dissent
disputed the majority's claim that the opinion was consistent with the Casey and
Stenberg precedents and said "The Court's hostility to the right Roe and Casey
secured is not concealed."
 Decision: 5 votes for Gonzales, 4 vote(s) against

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3/23
D. Medical Care Decisions, pp. 1040-1048

1056 (Cruzan v. Director Missouri Dept. of Health;

Cruzan v. Director, Missouri Department of Health

 Brief Fact Summary. Nancy Cruzan was involved in a car accident, which left her
in a “persistent vegetative state.” After it became clear that Cruzan would not
improve, her parents requested that the hospital terminate the life-support
procedures the hospital was providing. The hospital and subsequently the State
court refused to comply.
 Synopsis of Rule of Law. A State may condition the exercise of a patient’s right
to terminate life-sustaining treatment on a showing of clear and convincing
evidence of the desire of the patient to exercise such a right.
 Facts. Nancy Cruzan was involved in a car accident, which left her in a “persistent
vegetative state.” In order to feed her and to facilitate her recovery, surgeons
implanted into her a gastronomy feeding and hydration tube. After it become
apparent that Cruzan had virtually no chance for recovery, Petitioners, Cruzan’s
parents, asked hospital employees to terminate the life support procedures. The
State hospital employees refused to honor this request without court approval.
After trial, on appeal, the Missouri Supreme Court refused to order termination of
the life-support, because clear and convincing evidence was not produced to show
that Cruzan herself would have chosen to refuse treatment.
 Issue.
 o Did Cruzan have a right under the United States Constitution that would
require the hospital to withdraw life-sustaining treatment?
o Did Missouri’s procedural requirement for clear and convincing evidence
of an incompetent person’s desire to terminate life support before it is
terminated violate the Constitution?
 Held. No and No. The Missouri Supreme Court is affirmed.
 Prior decisions support the principle that a competent person has a
constitutionally protected liberty interest in refusing medical treatment under the
Due Process Clause. But incompetent persons do not enjoy the same rights,
because they cannot make voluntary and informed decisions.
 The right to terminate life-sustaining treatment of an incompetent, if it is to be
exercised, must be done for such incompetent by a surrogate. Missouri’s interest
in the preservation of life is unquestionably a valid State interest.
 The Due Process Clause protects an interest in life as well as a right to refuse life-
saving treatment. Missouri may legitimately safeguard these personal decisions by
imposing heightened evidentiary requirements.
 Moreover, even when available, family members will not always act in the best
interests of a patient. The State is entitled to safeguard against such abuses.
 Dissent.
 Justice Brennan: Missouri may constitutionally impose only those requirements
necessary to ascertain Cruzan’s wishes. The “safeguard” employed by the
Missouri courts imposes a markedly asymmetrical evidentiary burden. No proof is
required to show an incompetent person would wish to continue treatment.
 Concurrence.
 Justice O’Connor: Would emphasize that the Supreme Court of the United States
does not decide the issue whether a State must give effect to the decisions of a
surrogate. In Justice O’Connor’s view, such a duty may well be constitutionally
required to protect one’s liberty interest in refusing medical treatment.
 Justice Scalia: Would have preferred that The Court announced clearly that the
federal courts have no business in this field. The United States Constitution says
nothing on this topic. The nine justices of this Supreme Court are not better at
making this decision than nine people picked at random from the Kansas City
telephone directory.
 Discussion. This case is labeled a “right to life case.” Most of the attention,
however, is focused on burden of proof standards for showing a person’s intent
with regard to a life-threatening matter. This type of case, where a person requests
that her life be left to natural processes, must be distinguished from cases that
involve assisted suicide, whereby a doctor will take an affirmative step to induce a
person’s death.

pp. 1048-1056 (Washington v. Glucksberg);

Washington v. Glucksberg
 Brief Fact Summary. The Supreme Court of the United States held that a law that
prohibits anyone (including physicians) from aiding or causing another to commit
suicide is constitutional
  Synopsis of Rule of Law. The “liberty” protected by the Due Process Clause of
the United States Constitution does not include the right to assist suicide.
 Facts. It is a crime to assist suicide in Washington. Petitioners are the State of
Washington and its Attorney General. Respondents are physicians who practice
medicine in Washington. Respondents occasionally treat terminally ill patients
and claim that they would help these patients end their lives if not for Petitioners’
ban on assisted suicides. In January 1993, Respondents, along with three
terminally ill patients (who have since died), and a non-profit organization that
counsels people considering physician assisted suicide sued in the United Stated
District Court claiming that Petitioners’ assisted suicide ban is unconstitutional.
The District Court invalidated the statute. The Court of Appeals reversed, but then
reversed itself en banc and affirmed the District Court. The en banc decision held
that “the Constitution encompasses a due process liberty interest in controlling the
time and manner of one’s death” and the state’s assisted suicide ban was
unconstitutional.

 Issue. Whether Washington’s prohibition against “causing” or “aiding” a suicide

offends the Fourteenth Amendment of the Constitution.
 Held. No. The en banc judgment of the Court of Appeals reversed. There is
consistent and almost universal tradition that has long rejected the asserted right
of assisting suicide. To hold that such a right is fundamental in nature would be to
reverse centuries of legal doctrine. Therefore, assisting suicide is not a
fundamental right. The Constitution requires the state ban to be rationally related
to legitimate government interests. Petitioners have an “unqualified interest in the
preservation of human life.” Suicide is a serious health problem. Further,
Petitioners have an interest in protecting the integrity and ethics of the medical
profession, as well as an interest in protecting vulnerable groups from abuse,
neglect and mistakes. The ban on assisting suicide is thus rationally related to
these legitimate state interests.
 Concurrence. There is no generalized right to commit suicide. There is no need to
address Respondent’s question whether a mentally competent person who is
experiencing great suffering has a constitutionally cognizable interest in
controlling the circumstances of his or her imminent death.
 The majority’s holding does not foreclose the possibility that some applications of
the law addressed in the case may be invalid and thus the constitutionality of such
a law could prevail in a more particularized challenge.
 The legislature has more competence to address this issue than the Court.
 The Court’s formulation of the “liberty” interests is incorrect. Additionally, the
majority’s holding does not foreclose the possibility that some applications of the
law addressed in the case may be invalid, and thus the constitutionality of such a
law could prevail in a more particularized challenge.
 Discussion. Once the Court held that assisting suicide is not a fundamental right,
it was easy to satisfy the rational basis test and hold that the law was v
E. Education, pp. 1151-1158 (San Antonio v. Rodriguez)
San Antonio Independent School District v. Rodriguez
 Brief Fact Summary. In Texas, public schools were financed primarily through a
 system whereby property taxes were imposed by local school districts. Because
property values were higher in some districts, than in others, substantial
disparities across districts in per pupil spending arose. The disparities in spending
among public school children triggered a Fourteenth Amendment Equal
Protection challenge to the constitutionality of the system.
 Synopsis of Rule of Law. A State public school taxing system that results in
interdistrict spending disparities among local school districts is consistent with the
Fourteenth Amendment Equal Protection Clause as long as the system satisfies
the rational basis standard of review and is, thus, rationally related to a legitimate
governmental interest.
 Facts. In Texas, public schools were financed primarily by means of property
taxes imposed by local school districts. Because property values were higher in
some districts, than in others, substantial disparities across districts in per pupil
spending arose. For example, one district raised $26 per pupil, using a 1.05% tax
rate; while another district raised as much as $333 per pupil on the basis of a mere
.85% rate. The stated purpose for the system was to assure school districts of local
fiscal control. At trial, a Federal District Court, applying the strict scrutiny
standard of review, invalidated the school financing system on equal protection
grounds.
 Issue. Did the federal District Court, in applying strict scrutiny, review the case
under the correct standard of review?
 Was the funding system rationally related to a legitimate governmental interest?
 Held. No and Yes. The rational basis test applies. The District Court is reversed.
 Because neither a suspect classification nor a fundamental interest is implicated
here, the rational basis standard of review applies. Unlike with past cases
concerning laws that discriminated against the poor, this case does not involve the
characteristic of poor people not being able to afford, and therefore enjoy, some
important governmental benefit altogether. An interference with a fundamental
right guaranteed by the Equal Protection Clause of the Fourteenth Amendment
does not arise merely because some people can obtain relatively more of a desired
benefit than others. Moreover, appellees have not demonstrated that the system
works to the disadvantage to the poor inasmuch as the poor are often clustered
around commercial areas, which produce high property tax income. Answer: It’s
not mentioned precisely who the “appellees” are. Therefore, I have mad
references to appellees lower case.
 Because the rational basis standard of review applies, and the tax system at issue
is rationally related to a legitimate governmental interest, the tax system is
constitutional. Appellees’ position that the system fails rational basis review,
because it allows the quality of education to fluctuate with the arbitrary drawing
of boundary lines, is incorrect. Indeed, the establishment of any jurisdictional
boundary will inevitably be arbitrary. Moreover, insofar as the system promotes
local control and decision making in school financing affairs, the system is
rationally related to a legitimate governmental interest of providing a basic
education for the children of the State. As such, the program permits each locality
to tailor local programs to local needs.
 Dissent. Justice White: The Texas system cannot withstand rational basis review.
 It would be a more constitutionally appropriate system if it ensured minimum
educational expenditures in every district through state funding, while extending
an option to all local districts to increase their per pupil expenditures.
 Justice Marshall: The classification at issue should have been subjected to a
higher degree of scrutiny than the rational basis standard of review. Our equal
protection cases cannot all fit neatly under one of two categories – rational basis
or strict scrutiny. The Supreme Court of the United States should use a spectrum
of standards in reviewing equal protection challenges with consideration for the
societal importance of interests adversely affected and the invidiousness of
classifications at issue.
 Discussion. In this case, the Supreme Court is limiting the extent to which
fundamental rights can be found under the United States Constitution. The
Supreme Court is saying that in order for a fundamental right to be recognizable
under Fourteenth Amendment due process jurisprudence, it must be determined
that such a right is explicitly or implicitly guaranteed by the Constitution. The fact
that a function performed by the government is important does not establish such
a function as a fundamental right. The primary focus of this case is on what
standard of review should apply or why the rational basis test is the proper
standard of review here.
F. Family Autonomy, pp. 949-956(Loving v. Virginia, Zablocki v. Redhail)
Loving v. Virginia
 Brief Fact Summary. The state of Virginia enacted laws making it a felony for a
white person to intermarry with a black person or the reverse. The
constitutionality of the statutes was called into question.
 Synopsis of Rule of Law. Restricting the freedom to marry solely on the basis of
race violates the central meaning of the Equal Protection Clause.
 Facts. The state of Virginia enacted laws making it a felony for a white person to
intermarry with a black person or a black person to intermarry with a white
person. The Supreme Court of Appeals of Virginia held that the statutes served
the legitimate state purpose of preserving the “racial integrity” of its citizens. The
State argued that because its miscegenation statutes punished both white and
black participants in an interracial marriage equally, they cannot be said to
constitute invidious discrimination based on race and, therefore, the statutes
commanded mere rational basis review.
 Issue. Was rational basis the proper standard of review by which to evaluate the
constitutionality of the statutes?
 Were the Virginia miscegenation statutes constitutional under the Equal
Protection Clause?
 Held. No and No.
 The mere fact that a statute is one of equal application does not mean that the
statute is exempt from strict scrutiny review. The statutes were clearly drawn
upon race-based distinctions. The legality of certain behavior turned on the races
of the people engaging in it. Equal Protection requires, at least, that classifications
based on race be subject to the “most rigid scrutiny.”
 The Equal Protection Clause of the United States Constitution (Constitution)
prohibits classifications drawn by any statute that constitutes arbitrary and
 invidious discrimination. The fact that Virginia bans only interracial marriages
involving whites is proof that the miscegenation statutes exist for no purposes
independent of those based on arbitrary and invidious racial discrimination.
 Concurrence. Justice Potter Stewart (J. Stewart) argued it is not possible for a
state law to be valid, which makes the criminality of an act depend upon the race
of the actor.
 Discussion. The key to this case is articulated in J. Stewart’s concurrence. The
miscegenation statute was improper because it made the legal consequences of an
action turn on the races of the persons participating in it.
Zablocki v. Redhail
 Brief Fact Summary. A Wisconsin Statute forced individuals to receive court
permission in order to marry if they have a minor issue not in their custody which
they are obligated to pay support for. Appellant was unable to receive court
permission under the statute and brought suit on behalf of all residents similarly
situated.
 Synopsis of Rule of Law. If a statute significantly interferes with the exercise of a
fundamental constitutional right, it must be supported by sufficiently important
state interests and closely tailored to effectuate only those interests. Such interests
are subject to strict scrutiny or “critical examination.”
 Facts. Appellee Redhail was unable to enter into a lawful marriage under a
Wisconsin statute that did not permit a resident to marry without court permission
if he has a minor issue not in his custody which he is obligated to pay support by
court order. The statute allowed court permission only if the marriage applicant
submits proof of compliance with the support obligation and additionally
demonstrates that the children covered by the support order are not then or likely
thereafter to become public charges. In 1972 when appellee was a minor high
school student he was found to be the father of a baby girl born out of wedlock
and ordered to pay monthly support. Appellee was unemployed and indigent until
1974, and unable to make payments.
 In 1974 appellee applied for a marriage certificate with appellant Zablocki, a
county clerk. The application was denied due to appellee’s failure to obtain the
required court order. It was stipulated that appellee was in arrearage on his
payments and his child had been a public ward since birth, therefore he was
unable to satisfy the requirements for a court order. Appellee filed his complaint
on behalf of himself and all similarly situated Wisconsin residents.
 Issue. Is a Wisconsin statute that provides that members of a certain class of
residents cannot marry, within the State or elsewhere, without first obtaining a
court order granting permission to marry constitutional?
 Held. The statute is unconstitutional because it significantly interferes with the
exercise of a fundamental right and is not supported by sufficiently important
state interests and is not closely tailored to effectuate only those interests.
 The court employs a critical examination of the state interests advanced in support
of the statute because the right to marry is of fundamental importance. Previous
court decisions have confirmed that the right to marry is protected by the Due
Process Clause of the Fourteenth Amendment.
 Although reasonable restrictions that do not significantly interfere with the right
 to marry may be imposed, the present statute absolutely prevents some in the
protected class from obtaining the required order, and places sufficient burdens
and significant intrusions on others.
 Appellant claims that the statute supports the State’s interest in counseling the
applicant as to the need of fulfilling his prior support obligations and protects the
welfare of the out-of-custody children. The first claim is faulty because even if
counseling is provided there would be no interest in continuing to withhold
permission to marry after counseling is completed. The second is faulty for two
reasons. First, if the individual is unable to meet payments, the statute simply
prevents marriage without providing any money to the minor children. Second,
the State has numerous other means for extracting the payments.
 There is also suggestion that the statute prevents applicants from incurring new
support obligations. However, this is underinclusive because it limits only the
new financial commitments arising out of a marriage and overinclusive because in
many cases the income from the new spouse may increase the applicant’s ability
to pay. The statute may only result in more children being born out of wedlock.
 Concurrence.
 Justice Stewart. The majority’s reliance on the Equal Protection Clause is
misplaced because it is intended to deal only with invidiously discriminatory
classifications. The Due Process Clause protects the liberty right to marriage, and
protection of the State’s interests must fall short of not permitting poor people to
marry.
 Justice Stevens. The Wisconsin Legislature incorrectly assumed that (a) only
fathers would be affected by the legislation and (b) they would never marry
employed women. The Statute cannot withstand scrutiny under the Equal
Protection Clause of the Fourteenth Amendment.
 Discussion. The majority finds the statute to violate constitutional protections
under both the Due Process and Equal Protection Clauses. The Concurrences
appear to differ mainly on which of these two clauses is more applicable.
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G. Sexual Orientation and Sexual Activity, pp. 1056-1069 (Lawrence v. Texas)
Lawrence v. Texas
 Facts of the Case: Responding to a reported weapons disturbance in a private
residence, Houston police entered John Lawrence's apartment and saw him and
another adult man, Tyron Garner, engaging in a private, consensual sexual act.
Lawrence and Garner were arrested and convicted of deviate sexual intercourse in
violation of a Texas statute forbidding two persons of the same sex to engage in
certain intimate sexual conduct. In affirming, the State Court of Appeals held that
the statute was not unconstitutional under the Due Process Clause of the
Fourteenth Amendment, with Bowers v. Hardwick, 478 U.S. 186 (1986),
controlling.
 Question: Do the criminal convictions of John Lawrence and Tyron Garner under
the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by
 same-sex couples, but not identical behavior by different-sex couples, violate the
Fourteenth Amendment guarantee of equal protection of laws? Do their criminal
convictions for adult consensual sexual intimacy in the home violate their vital
interests in liberty and privacy protected by the Due Process Clause of the
Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be
overruled?
 Conclusion: No, yes, and yes. In a 6-3 opinion delivered by Justice Anthony M.
Kennedy, the Court held that the Texas statute making it a crime for two persons
of the same sex to engage in certain intimate sexual conduct violates the Due
Process Clause. After explaining what it deemed the doubtful and overstated
premises of Bowers, the Court reasoned that the case turned on whether Lawrence
and Garner were free as adults to engage in the private conduct in the exercise of
their liberty under the Due Process Clause. "Their right to liberty under the Due
Process Clause gives them the full right to engage in their conduct without
intervention of the government," wrote Justice Kennedy. "The Texas statute
furthers no legitimate state interest which can justify its intrusion into the personal
and private life of the individual," continued Justice Kennedy. Accordingly, the
Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion
concurring in the judgment. Justices Clarence Thomas and Antonin Scalia, with
whom Chief Justice William H. Rehnquist and Justices Thomas joined, filed
dissents.
 Decisions
 Decision: 6 votes for Lawrence and Garner, 3 vote(s) against
Legal provision: Due Process