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Con Law Outline Substantive Due Process- The extent to which the Liberty mentioned in the Due Process

Clauses is protected from Government deprivation, wholly aside from the fairness of the procedures that the government provides before the deprivation. Remember certain types of state limits on human conduct have been held to be so unreasonably interfere with important human rights that they amount to an unreasonable( and unconstitutional) denial of liberty.

*** exam tip- if the fact pattern suggests that the state or federal govt is taking away something that could be considered life, liberty, or property, you must ask if the Govt has violated the individuals substantive rights Levels of Scrutiny 1. Strict- Govt must show that the classification must serve a legit and compelling state(Gov.) interest and classification is necessary to serve that interest a. Strict Scrutiny is given to any statute that is based on a suspect class or which impairs a fundamental right. i. Suspect Class- ex. Race, gender, national origin, ii. Fundamental Rights- Right to a Trial, Life, Liberty, Property b. Govt has the burden to show that the law is not unconstitutional Three part test to pass strict scrutiny: 1. The law that is seeking to be challenged must serve a legit state interest. 2. Govt must show that the law or policy must be narrowly tailored to achieve its legit interest. 3. The law or policy must be the least restrictive means for serving the Govt interest.

2. Intermediate- Govt must prove that challenged classification serves an important state/govt. Interest and the classification are at least substantially related to serving that interest. (ex- gender and illegitimacy laws) a. Govt must prove that there is not a more reasonable way to obtain the end goal/state interest they seek to accomplish i. This must be accomplished by the most reasonable means 3. Rational- Gov. must show that the challenged classification is rationally related to serving a legit state interest. i. Ex- Age discrimination

Lochner v New York- the New York Legislature unanimously enacted the Bakeshop Act, which regulated sanitary conditions in bakeries and also prohibited individuals from working in bakeries for more than ten hours per day or sixty hours per week.
Holding- States can interfere with the fundamental right of freedom of contract (which is a liberty), but only if the regulation has direct relation to an appropriate and legitimate end under the states police powers (ex public health and safety)

Court concluded that the statute was unconstitutional because the state lacked reasonable ground for interfering with the bakers rights to enter into a contract to support themselves and their families A law is reasonable related to a valid legislative purpose under due process when it is not arbitrary and not discriminatory.

Nebbia v New York -NY state leg law is upheld (law set fix min and max amounts for retail prices of milk)
Nebbia sold milk and bread for a discount (outside the set amounts made by NY leg) -S.C. says that state has the right to price fix b/c they can adopt whatever economic policy that is reasonably deemed to promote public welfare, and to enforce that policy by leg adapted to its purpose -if laws passed are seen to have a reasonable relation to a proper legit purpose, and are neither arbitrary nor discriminatory the requirements of due process are satisfied. -essentially this goes against the constitution and its laissez faire set-up...the dissent touches on this and stab. an originalist argument

Rule of law- Price controls that are arbitrary, discriminatory, or demonstrably irrelevant to the policies of the legislature, are unconstitutional because they are unnecessary and unwarranted interferences with individual liberty.
West Coast Co v Parrish- (this is the beginning of the end of LOCHNER)
The decision is usually regarded as having ended the Lochner era, a period in American legal history during which the Supreme Court tended to invalidate legislation aimed at regulating business State makes a statute the women and minorities must make a minimum wage, WCH sues saying th it violated the 14 . SC upheld the statute

Reasoning- The exploitation of a class of workers who are at a disadvantaged bargaining position is in the best interest of the health of the worker and economic health of the community Rule- the Constitution permitted the restriction of liberty of contract by state law where such restriction
protected the community, health and safety or vulnerable groups

Williams v Lee Optical Co. - (Established Rational Basis Review)

An Oklahoma law prevented persons who were not licensed optometrists or ophthalmologists from fitting lenses for eyeglasses. Non-licensed individuals were also prohibited from duplicating optical instruments without written prescriptions from licensed ophthalmologists. The Lee Optical Company challenged the law.

Rule- that state laws regulating business will only be subject to rational basis review, and that the Court
need not contemplate all possible reasons for legislation.

General rule is that legislation is presumed to be valid and will be sustained if the regulation is rationally related to a legitimate state interest. o Usually means the challenged regulation will be valid

Substantive Due Process and Fundamental Rights Strict scrutiny goes to fundamental rights

Pierce v. Society of the Sisters

Oregon Stat that required all parents and guardians to send children between 8 and 16 years to a public school. The appellants appealed the granting of the preliminary restraining orders.

2 private schools challenged the act

Holding- the Act violates the 14th Amendment because it interferes with protected liberty interests
and has no reasonable relationship to any purpose within the competency of the state. The Appellees have standing because the result of enforcing the Act would be destruction of the appellees schools. The state has the power to regulate all schools, but parents and guardians have the right and duty to choose the appropriate preparation for their children. They used intermediate scrutiny on this one

Skinner V Oklahoma OK. Act that said after 3 felonies youre sterilized The problem with state is that it doesnt count white collar crimes such as embezzlement Court says procreation is a fundamental right

Holding- The Court unanimously held that the Act violated the Equal Protection Clause of
the Fourteenth Amendment, because white-collar crimes like embezzlement were excluded from the Act's jurisdiction. ***This marks the shift from due process to the EPC***

To interfere with a fundamental state right, there must be a COMPELLING STATTE INTEREST Skinner suggested that, notwithstanding the repudiation of LOCHNER, the court might continue to interpret the DPC to protect some substantive spheres of liberty.

Contraception and Abortion

Griswold v Conn Appellants were arrested and charged with giving information, instruction, and medical advice to married persons on means of preventing conception. Which violated a statute that

Ruling- the Constitution protected a right to privacy o

Although the Bill of Rights does not explicitly mention "privacy", it can be found in the "penumbras" and "emanations" of other constitutional protections

Holding-there was a right of privacy that protected the ability to purchase and to use contraceptives Forbidding the use of contraceptives rather than regulation their manufacturing or sales, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. o Government purpose to control or prevent activities constutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms

Poe V. Ullman
The Appellants, several couples and their physician (Appellants), brought suit, seeking the overturn of a Connecticut statute prohibiting the use of contraceptive devices and the giving of medical advice on the use of such devices.

Ruling- no standing, Connecticut has never attempted to fully prosecute any case under the statute. Because of this, not only have the Appellants not suffered injury in fact from the statute, but there is no evidence that they would be prosecuted for acting in violation of the statute
A penal statute is not ripe for constitutional challenge unless it is enforced by the state enacting the statute.

Eisenstadt v. Baird Court invalidates a state statute that prohibited selling contraceptives to people who were not married Appellee William Baird was convicted under a Massachusetts State law for exhibiting contraceptive articles and for giving a woman a package of Emko vaginal foam.

Ruling- Dissimilar treatment between married and unmarried persons is unconstitutional when the dissimilar treatment is unrelated to a rational State objective.

Using Griswold the statute faols for 2 reasons 1. It violated the right to privacy established in Griswold using language that echoed substantive due process as the basis for the protection 2. The statute discriminated against unmarried persons by preventing them from having the same access to contraceptives as married person You have the same rights as separate individuals as you do as a married couple

Roe v Wade
Texas statutes made it a crime to procure or attempt an abortion except when medically advised for the purpose of saving the life of the mother. Appellant Jane Roe, a pregnant mother who wished to obtain an abortion, sued on behalf of all woman similarly situated in an effort to prevent the enforcement of Texas statutes criminalizing all abortions except those performed to save the life of the mother.

Ruling- ruled that a right to privacy under the due process clause of the 14th Amendment extended to a woman's decision to have an abortion, but that right must be balanced against the state's two legitimate interests in regulating abortions: protecting prenatal life and protecting women's health. Arguing that these state interests became stronger over the course of a pregnancy, the Court resolved this balancing test by tying state regulation of abortion to the trimester of pregnancy. *** if science reestablishes when life begins this debate may be changed*** Dissent- believes that abortion laws should be left to the state

Planned Parenthood v. Casey Penn. Act the required women to give :

1. The "informed consent" rule under the Act required doctors to provide women with information about the health risks and possible complications of having an abortion before one could be performed. 2. The "spousal notification" rule required women to give prior notice to their husbands. 3. The "parental consent" rule required minors to receive consent from a parent or guardian prior to an abortion. 4. The fourth provision imposed a 24-hour waiting period before obtaining an abortion. 5. The fifth provision challenged in the case was the imposition of certain reporting requirements on facilities providing abortion services.

All requirements were upheld except for #2 spousal notification they used the undue burden test.

Gonzales v Carhart
The Partial-Birth Abortion Ban Act was signed into law by President Bush on November 5, 2003.

Holding- Gov had a legitimate interest in preserving life and fetal life, therefore, when go has interest can promote fetal life and doesnt burden women Loving V Virginia Interracial marriage case
The court ruled that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment

Marriage is a fundamental right

Holding- The state cannot limit the right to persons who choose to marry persons of the same race, thus ending all race-based legal restrictions on marriage in the United States Bowers v Hardwick GA law making butt sex and oral sex illegal in private between consenting adults when applied
to homosexuals

They said homosexual sodomy is not moral or protected by the united states constitution This was later over turned by Lawrence v Texas

Lawrence v. Texas Lawrence was having alleged to be having consensual butt sex, when cops broke in to his apart based on an apparent on weapon suspicision. This violated a Texas law

Holding- The statute was unconstitutional because it was clearly directed towards gays, straight men could do it and not get in trouble. Absent any injury to person, sex is a liberty interest that cant be touched This case was a landmark one for gay rights

Deshaney v Winnebago County Dept. of Social Services Father is granted custody of kid, beats him until retardation The direct actions of the father put the kid in this situation, not the govt. Pros. Argues that the DEPT of SS vilated the childs right to be free from bodily harm w/o due process because it had failed to protect the child from her fathers beatings despite being informed of the beatings 2 years prior

Holding- The state had not deprived the child of any protected rights and expaliant that govt failure to protect an individual against private violnece simply does not constitute a violation of the due process clause.

Cruzan v. Director, Missouri Dept of Health After car accident child(daughter) was in a vegetative state The family wants to pull the plug, state requires that there is "clear and convincing evidence"
for removal of life support.

Holding- Constitution permitsthe state to require clear and convinincing evidence of a persons derire to havethe plug pulled Also 3 important aspect 1. Competent adults have the constitutionally protected right to refuse mediaicl treatment 2. The State could temper that rioght by requiring proof by clear and convining evidence of that intent before the treatment is terminanted 3. The State could prevent family member from ending the treatment of life of another family member Washington v Glucksberg
challenged Washington state's ban against assisted suicide in the Natural Death Act of 1979.

Holding- THe right to die is and the manner in wich you do it is a fundamental right
However, The Court asserted that because assisted-suicide is not a fundamental liberty interest, it was therefore not protected under the 14th Amendment

Chapter 9 Procedural Due Process

Procedural Due Process- before the Govt takes away a fundamental right, you must be provided Notice, and an Opportunity to be heard Cleveland Board of Education v Loudermill The Cleveland Board of Education (Board) hired James Loudermill (Respondent) in 1979 as a security guard. Respondent stated on his application that he had never been convicted of a felony; and the Board fired him when it discovered he had been convicted of grand larceny in 1968. Respondent filed suit in the Federal District Court for the Northern District of Ohio, alleging that he was denied of liberty and due process because he was not afforded notice and an opportunity to respond prior to removal.

Holding- The Court held that all the process that is due is provided by a pretermination opportunity to
respond, coupled with post-termination administrative procedures as provided by the Ohio statute. Since

respondents alleged that they had no chance to respond, the District Court erred in dismissing their complaints for failure to state a claim.

Chapter 10
A. Distinctions and Classifications Classifications on the basis of race(other than affirmative action programs and remedial measures for past discrimination) are virtually always inconsistent with the EPC. Steps in the EP process 1. What is the nature of the classification? ( racial, gender, illegitimacy, sexual orientation, even a business matter can trigger EP). 2. What is the relationship b/w the gov. interestin the classification? 3. Apply level of scrutiny 4. Conclusion of whether the classification will survive Constitutional Analysis EPC- Bars the govt from engaging in any type of discriminatory conduct Three Major Tests1. Strict Scrutiny Test- Applies to Govt action that intentionally discriminates against Suspect Class. a. Race, National origin, Alienage, Discrimination in the provision of fundamental rights Test: is the government purpose action necessary to achieve a compelling govt purpose 2. Intermediate Scrutiny Test- Applies to discrimination on the basis of: a. Right to vote b. Right to travel Test: is the govt action substantially related to an important govt purpose 3. Rational Basis Test- Applies to ever other basis for discrimination Test: is this govt action rationally related to a legitimate govt purpose The ends, goals or purpose the govt is trying to achieve: Strict scrutiny- requires a very important compelling or overriding purpose Intermediate scrutiny- merely requires an important or substantial purpose Rational basis- allows any conceivable legitimate purpose

How well the means further that end-goal or purpose: Strict scrutiny- requires the means to be necessary to achieve the purpose Intermediate scrutiny- requires the means to be narrowly tailored to achieve the purpose

Rational basis- requires that the means be rationally related to the given end or purpose

Bolling v. Sharpe African American students denied admission to segregated public schools in Washington, DC The decision comes right after Brown, so this is different b/c DC is under federal Govt rules and not statess which fall under the 14th

Holding- that school segregation was unconstitutional under the Due Process Clause of theFifth
Amendment to the United States Constitution. (known as reverse incorporation)

The Court held, however, that the concepts of Equal Protection and Due Process are not mutually exclusive. reverse incorporation, the Equal Protection Clause of the Fourteenth Amendment has been held to apply to the federal government through the Due Process Clause located in the Fifth Amendment

Railway Express Agency v People of State of NY

The Appellant was fined for violating a state statute, which prohibits advertisements on the side of vehicles, except when the advestising is connected to the owner of the vehicles business. The statutes purpose was to protect the safety of pedestrians and other vehicle drivers by eliminating distractions on the streets. The law was discrimmatory because you could advertise your own busness on your own trucks, you just couldnt advertise other peoples business ( think eddie on the bus)

Holding- The court ruled that the govt stated purpose for passing the law was traffic safety and it was legit (rationale basis) New York City Transit Authority v Beazer
A New York City Transit Authority rule barred the employment of persons who use narcotics. The Transit Authority applied the rule to all persons taking methadone a drug widely used in the treatment of heroin addiction.

Holding- found that the NYC Transit Authority had a rational basis for its classification of narcotics users
and the extension of this rule to cover methadone users

When a states regulation is dealing with the health and safety of citizens, the SC will be deferential to the states regulations and wont use EP to invalidate it o The SC will use a lower level of scrutiny here( rationale Basis)

Chapter 11 Status-Based Classifications *** as you read this Chapter pay close attention to (1.) the process by which the Court identifies classifications that trigger heightened judicial scrutiny and (2) the variety of forms of scrutiny that the Court applies to such classifications A. Classifications Based on Race and National Origin Dred Scott v Sanford- (14th overruled this case)
Dred Scott (Plaintiff) was a slave living in the slave state of Missouri. His owner took him to Illinois and then to Minnesota, which were both Free states under the Missouri Compromise. Plaintiff and his owner returned to Missouri, and Plaintiff was sold to Sanford (Defendant). Plaintiff sued Defendant for his freedom, claiming to be a citizen of Missouri, based on having obtained freedom by domicile for a long period in a free state

Holding- Slaves were not intended to be included under the word citizens in the Constitution,
U.S. Supreme Court that people of African descent brought into the United States and held [2] as slaves (or their descendants, whether or not they were slaves) were not protected by the Constitution and were not U.S. citizens th After this the civil war breaks out and this leads to 13, 14, 15 amendments

Strauder v West Virginia State statute said that no blacks can derv on a jury(whites only) SC says you have an explicit right to trial by jury that is guaranteed by the constitution and that there is a penumbra of rights that extends for this The case comes down to drawing a line: 1. What did the state do 2. What was there reasoning 3. And then apply the constitutional analysis and scrutiny

Holding- that a state may not categorically exclude persons from jury service solely because of race

Korematsu v. United States During World War II, a military commander ordered all persons of Japanese descent to evacuate the West Coast. The Petitioner, Korematsu (Petitioner), a United States citizen of Japanese descent, was convicted for failing to comply with the order

Holding- 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.

We were at war with Japan (WWII), and this happened right after Pearl Harbor. o The need to protect against espionage outweighed Fred Korematsu's individual rights,
and the rights of Americans of Japanese descent.

**** Facially discriminatory govt actions are subject to strict scrutiny***

Yick Wo v Hopkins A San Francisco law required that laundries could not be operated in other than brick or stone buildings without approval by the city. All but one of 88 non-Chinese applicants was granted approval to operate in a non-stone building. However, not a single one of 200 Chinese applicants had been granted approval

Holding- that a law that is race-neutral on its face, but is administered in a prejudicial manner, is an
infringement of the Equal Protection Clause in the Fourteenth Amendment to the U.S. Constitution.

So look at how it is administered and see if it is racist or not

Washington v Davis
A higher percentage of black applicants than white applicants failed a qualifying test administered by the District of Columbia Police Department. Some of the unsuccessful black applicants claimed these effects constituted unconstitutional discrimination against them

Holding- The police office did not intentionally discriminate, the exam is rationally related to the legitimate government purpose of ensuring that police officers have acquired a particular level of verbal skill.
Rule- The exam is rationally related to the legitimate government purpose of ensuring that police officers have acquired a particular level of verbal skill.

Plessey v Ferguson Separate but equal is constitutional, this is overturned by Brown.

Brown v Board of Education of Topeka

The Plaintiffs, various black children (Plaintiffs), were denied admission to schools attended by white children under laws that permitted or required segregation by race. Plaintiffs sued, seeking admission to public schools in their communities on a no segregated basis.

Holding- state laws establishing separate public schools for black and white students unconstitutional. o
Separate but equal educational facilities are inherently unequal. Separating people based on race causes feeling of inferiority. Also the black students got old stuff that wasnt as good as the whites

Loving V Virginia
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.

Holding- 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. Strict scrutiny is applied to all racial laws o The EPC forbids all invidious racial discriminations

Affirmative Action
City of Richmond v J.A. Croson Co.
Richmond, Virginia created a set-aside program which required that a percentage of subcontracts for construction projects be reserved for minorities.

Holding- Without a showing that a race-based initiative was created to remedy past racial discrimination and that it supports a compelling governmental interest, the race-based initiative is unconstitutional and cannot withstand strict-scrutiny.
Affirmative action programs can only be maintained by a showing that the programs aim is to eliminate effects of past discrimination.

Regents of The University of California v Bakke Med school held 16 spots open for minorities, white guy sues

Holding- Although race may be a factor in determining admission to public educational institutions, it may not be a sole determining factor.

Grutter v. Bollinger
Petitioner, Barbara Grutter, applied for admission to University of Michigan Law School in 1997 with an undergraduate GPA of 3.8 and an LSAT of 161. She was denied. Petitioner, who is white, is challenging the law schools use of race as a factor in the admissions process.

Holding- that the University of Michigan Law School had a compelling interest in promoting class
diversity. The court held that a race-conscious admissions process that may favor "underrepresented minority groups," but that also took into account many other factors evaluated on an individual basis for every applicant, did not amount to a quota system that would have been unconstitutional under Regents.

Gave a 25 year time limit on this rule

Gratz v Bollinger White students challenge Michigans undergrad admission policies based on its selection index to award points to each applicants and minority gets 20 additional points on a 150 point scale and a s score of 100 gets you in

Holding- the 20 pts. make race a decisive factor for every minimally qualified underrepresented minority applicant This makes the policy not narrowly tailored to achieve compelling interest in diversity and thus it violates the EPC of the 14th

Parents Involved in Community Schools v Seattle School District (ask Caleb)

Two different schools have assignment plans that are discriminatory against students based on their race.

Holding- that prohibited assigning students to public schools solely for the purpose of achieving racial
integration and declined to recognize racial balancing as a compelling state interest

***** Strict scrutiny exceptions- 1. National security 2 prong test for strict scrutiny 1. Compelling Gov. interest 2. Narrowly tailored to reach that interest

Shaw v Reno to make up for traditionally minority area, NC unconstitutionally gerrymanders its district boundary lines to a dramatically irregular shape to allow for more minority representation in the US House of Reps.

Holding- hat redistricting based on race must be held to a standard of strict scrutiny under the equal
protection clause

The deliberate segregation of voters into separate districts on the basis of race violates their constitutional right to participate in a color-blind electoral process

Gender Classifications (Intermediate Scrutiny)

Craig v Boren Oklahoma law prohibits the sale of non- intoxicating 3.2% beer to 21 yr. old men and 18 yr. old women Does such a gender based differential constitutes a denial to males 18-20 years of age of the equal protection of the laws in violation of the fourteenth amendment

Holding- under Reed, the statute is not substantially related to achieve the statutory objective (DUIs) and it discriminates against men 18-20

United States v Virginia VMI was an all-male school and court strikes this down and VMI is forced to allow women into its school o Key here is that VMI is a state school which spurs this Govt action o GINSBURG creates intermediate scrutiny plus; Gov. must come in a show that the justification for the classification is exceedingly persuasive

Geduling v Aiello
California operated a disability insurance system that paid benefits to employees of private employers when workers compensation did not cover certain disabilities that prevented those employees from working. However, many pregnancies related disabilities were excluded from coverage because of expenses to the program.

Holding- No. Appeals Court ruling affirmed. The list of conditions covered by the disability insurance system is not exclusive. Furthermore, there are conditions not covered by the system that affect both men and women. The excluded conditions do not affect women alone
Under inclusive legislation is appropriate under the Equal Protection Clause, so long as the line drawn by the State is rationally supportable.

Orr v Orr
Appellant alleged that Alabamas alimony statute was unconstitutional because it provided that husbands, but not wives, may be required to pay alimony upon divorce.

Holding- The Alabama statute is unconstitutional because it is not rationally related to the legitimate state objectives proposed for the statute (childrens wellbeing) Michael M. v Superior Court of Sonoma County
The Petitioner, Michael M. (Petitioner), was charged with statutory rape in California and now alleges that the States statute discriminates unconstitutionally against men only. o Only men get punished by them

Holding- statute is ok, CA proved their intermediate scrutiny by showing they had a legitimate and state purpose, to protect the health and safety of its citizens
The Michael M. v. Superior Court of Sonoma County case upheld that gender biased statutory rape laws did not violate the Equal Protection Clause of the Fourteenth Amendment nor the Constitution. It demonstrated that laws can be applied differently to men and women and remain constitutional as long as the state can justify doing so

Personnel Administrator if Massachusetts v Feeney

The Supreme Court's decision upheld the constitutionality of a state law giving hiring preference to veterans over non-veterans

Graham v Richardson
The Respondent, Richardson (Respondent), was denied welfare benefits solely on the basis of being a resident alien who has resided for less than fifteen years in the country ( only 13 years)

Holding- The statute violates the EPC, SC says resident aliens are considered persons and they must be afforded equal protection of the laws under the 14th Aliens are a discrete and insular minority and this is why they get the heightened scrutiny (intermediate)

Illegitimacy (Intermediate scrutiny)

Clark v Jeter (ask Caleb)
Petitioner challenged a Pennsylvania statute that required proof of paternity to receive support, and established a six year statute of limitations for paternity actions

Holding- The statute does not withstand the Equal Protection Clause under the required heightened scrutiny test

Massachusetts bd. Of Retirement v Murgia
Massachusetts law requires state police officers to retire upon turning 50 years old. The Respondent, Murgia (Respondent), argues that this compulsory retirement denies him equal protection under the laws.

Holding- over 50 is not a suspect class and therefore only rationale basis is needed, but as more and more baby boomers get to that age it might change and become intermediate

Cleburne v Cleburne Living Center Municipal zoning ordinance says that you cant have a group home for the mentally retarded in certain areas SC said that mental retardation is not a quasi-suspect class cause it is too broad( some retards can be almost fully functional

Rule- if there is an irrational prejudice for the rationale then it is not constitutional

Sexual Orientation (ask Watson)

Romer v Evans
Colorado voters adopted Amendment two to their State Constitution, precluding the government from adopting measures that would protect homosexuals from discrimination. The state trial court enjoined enforcement of the act.

Holding- A state trial court issued a permanent injunction against the amendment, and upon appeal, the
Colorado Supreme Court ruled that the amendment was subject to "strict scrutiny" under the Equal Protection Clause. The state trial court, upon remand, concluded that the amendment could not pass strict scrutiny, which the Colorado Supreme Court agreed with upon review.

Chapter 12 Equal Protection and Fundamental Rights

1. The Right to Vote
Harper V Virginia State Bd. of Elections
Virginia levied a poll tax not exceeding $1.50 on every resident of the State 21 years of age or older. Residents challenged the State tax under the Fourteenth Amendment of the Constitution. o The argument is that the poll tax discriminates against the poor o Your right to vote is a fundamental

Holding- U.S. Supreme Court found that Virginia's tax was unconstitutional under the equal protection
clause of the 14th Amendment

Tax divides the eligible voters of the State into two classes: those who can afford the tax and those who cannot. As such, it invidiously discriminates against those who cannot afford the tax.

Bush v Gore The election down in FL, gore demands a ballot recount manually, specifically from certain counties SC steps on to stop the recount because they saw us on the verge of a constitutional crisis and so they gave the election to Bush essentially

Holding- the Court ruled that the Florida Supreme Court's method for recounting ballots was a violation
of the Equal Protection Clause of the Fourteenth Amendment. The Court also ruled that no alternative method could be established within the time limits set by the State of Florida

2. Apportionment and Gerrymandering

Reynolds v Sims Challenge to apportionment and gerrymandering of Alabama state districts The Plaintiffs alleged that the last apportionment of the Alabama legislature was based on the 1900 federal census and that the population growth in the intervening six decades has now made representation discriminatory against areas with fast-growing populations.

Holding- United States Supreme Court case that ruled that state legislature districts had to be roughly
equal in population.

Vieth v Jubelier 2000 census deemed that PA had 2 less Congress seats so the predominately Republican run legislature re drew the lines (gerrymandering). o The appellants claimed that this was done to favor republicans his, the plaintiffs claimed, denied Democrats full participation in the American political process by violating the one-person one-vote requirement
of Article I of the United States Constitution, and denied Democrats equal protection of the laws under the Fourteenth Amendment to the United States Constitution.

Holding- that the alleged political gerrymandering was not unconstitutional. SC leaves it open to say that if political gerrymandering goes too far, it may be justiciable

B. Welfare and Education

Dandridge v Williams-

Challenged the states welfare program. challenge was brought by large families , there was a cap to the amount of money families could receive from Fed Govt Aid

Holding- The bill is constitutional; a state need only provide a rational basis for the statute because it involves economic and social welfare. The statute is supported by a rational basis for the disparity in aid between large and small families. Maryland expressed a legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of the working poor.
Disparities in welfare benefits offered to qualifying beneficiaries need only be supported by a rational basis

San Antonio Independent School Dist. V Rodriguez About wealth of school districts, local property taxes were used for school funding, but the rich neighbor hoods got more money from the taxes cause the houses were more expensive, the poor kids got less

Holding- a school-financing system based on local property taxes was not an unconstitutional violation of
the Fourteenth Amendment's equal protection clause. The majority opinion stated that the appellees did not sufficiently prove that education is a fundamental right, that textually existed within the US Constitution, and could thereby (through the 14th Amendment to the Constitution), be applied to the several States. So it does not violate the EPC

Plyer v Doe
In 1975 the Texas legislature passed a law withholding funds for the education of children of illegal aliens. This law also authorized local school districts to deny entry in the public schools of the state to these children.

Holding- If the State is to deny a discrete group of children the free public education it offers to others residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. SC applies intermediate scrutiny to say the TX law cant stand because the role that education plays in our society is the justification for striking this law. o There must be a substantial state interest to deprive a discrete group f innocent kids the same fee public education other legal kids get in our states borders

C. Access to the Courts MLB V SLJ

The Petitioner, M.L.B. (Petitioner), lost custody of her children and cannot afford to appeal the decision. She argues that such a fundamental right requires the State to pay for the costs of her appeal The mother cant pay so she brings the case on a constitutional basis

Holding- the Supreme Court decided in the Petitioners favor and stated that in matters regarding
parental rights a court may not stop a party from appealing their case based on financial means.

Chapter 14 Freedom of Speech

Questions to ask when analyzing: Is it Speech, What is speech? Any form of communication of a message may constitute a form of speech For of expression

Is it protected speech? Gov. Regulations on Speech Content based: restrictions on speech is a restraint based on the content of what is being said o Strict Scrutiny Analysis: regulation will only stand if the regulation is narrowly drawn to achieve a compelling state interest( narrowly tailored can just mean room for reasonable alternatives)

Renton v Playtime Theatres, Inc.

A zoning ordinance prohibited adult movie theatres from being located within 1,000 feet of any residential zone, church, park or school. The Respondent, Playtime Theatres, Inc. (Respondent) claimed that the First and Fourteenth Amendments of the United States Constitution (Constitution) were violated by the city ordinance. The appellants argue that movies are speech, the govt cant regulate speech

Holding- that localities may impose regulations prohibiting adult theaters from operating within certain
areas, finding that the regulation in question was a content-neutral time/place/manner restriction.

This passes because the Gov. is allowed to come in and argue that the Gov. has a legit interest concerning the secondary effects o Exceptions to content based is that SC seems to allow restrictions when it comes to zoning law and secondary effects

Turner Broadcasting Systems, Inc. v. F.C.C. Req. cable TV systems to devote a portion of there channels to the transmission of local broadcast TV. stations Gov. is compelling speech, so 1st amendment protection comes in

Holding- SC held that the regulation was to preserve access to free television, and that it was a compelling state interest Analysis in this case: 1. Challenged provisions were content neutral 2. Provisions should be upheld if they further an important or substantial governmental interest, if the Gov. interest is unrelated to the suppression of free expression, and the incidental restriction on alleged 1st Amendment freedoms is no greater than is essential to the furtherance of that interest. 3. SC couldnt decide whether that Act furthered these interest so they can remand it Ward v Rock Against Racism City passes sound amplification guideline for Bandshell in Central Park City wants to regulate the noise, but also ensure adequate sound amplifications

Holding- t the city had a substantial interest in limiting excessive noise and the regulation was "content
neutral". The court found that "narrow tailoring" would be satisfied so long as the regulation promoted a substantial government interest that would be achieved less effectively absent the regulation.

Reasonable restrictions on the time, place, or manner of speech if these restrictions are: 1. Are content neutral 2. Are narrowly tailored to serve a significant governmental interest 3. Leave open ample alternative channels for communication of the information

United States v OBrien

The Defendant, OBrien (Defendant), was convicted for symbolically burning his draft card under a federal statute forbidding the altering of a draft card. His conviction was upheld after the Supreme Court of the United States (Supreme Court) found the law constitutional.

Holding- which ruled that a criminal prohibition against burning a draft card did not violate the First
Amendment's guarantee of free speech. Though the Court recognized that O'Brien's conduct was expressive as a protest against the Vietnam War, it considered the law justified by a significant government interest that was unrelated to the suppression of speech and was tailored towards that end.

*** OBrien Test- content neutral laws that have an incidental effect on activities protected under
the First Amendment are subject to an intermediate form of scrutiny. In the case that follows, consider whether 1. The challenged law was in fact content neutral 2. Whether, if so, the court properly concluded that it was constitutionally valid*** OBrien Test: Content neutral time, place, and manner restrictions okay so long as [if not content neutral, go back to strict scrutiny] (a) narrowly tailored (b) to serve a substantial governmental interest [unrelated to the suppression of free speech (if is, go back to strict scrutiny)] and (c) there are alternative channels to communicate the information

Barnes v Glen Theatre, Inc.

Glen Theatre and the Kitty Kat Lounge in South Bend, Indiana, operated entertainment establishments with totally nude dancers. An Indiana law regulating public nudity required dancers to wear "pasties" and a "G-string" when they perform. The Theatre and Lounge sued to stop enforcement of the statute.

Holding- It ruled that the state has the constitutional authority to regulate this form of expression, as it
furthers a substantial government interest in protecting the morality and order of society.

New York Times Co. V United States

The United States sought to enjoin the New York Times and Washington Post from publishing contents of a confidential study about the Governments decision making with regards to Vietnam policy. The District Court in the New York Times case and the District Court and the Court of Appeals in the Washington Post case held that the Government had not met the requisite burden justifying such a prior restraint.

Holding- the Supreme Court ruled that the First Amendment did protect the right of the New York
Times to print the materials.

You cant just give out classified secrets of national security and then hide behind the 1st

5. Vague or Overbroad Restrictions As-Applied Challenge- claiming that law is unconstitutional as applied to the facts of his or her case. Facial Challenge- law is void under all circumstances NAACP v Button
A Virginia statute banning improper solicitation of any legal or professional business as applied to the NAACP was held unconstitutional because the NAACP uses litigation as a form of political expression

Holding- the First Amendment of the United States Constitution (Constitution) protects vigorous advocacy of lawful ends against government intrusion, this amendment was overbroad This brings about the rise of public interest litigation and pervades a legal mechanism and protection for those in this field

Shad v Borough of Mt Ephriam-

Adult book store that soon became a spank booth, the live nude dancing violated a Mt Ephriam that said that live entertainment is banned

Holding- this is too broad, and attacks too many different forms of expression Pure Govt speech- the Gov. can say anything they want and limit you when it comes to pure Gov. Speech (just say no to drugs etc). Know how to differentiate between content and viewpoint

Unconstitutional Conditions- Gov. may not deny a benefit to a person on a basis that infringes
his constitutionally protected freedom of speech even if he has no entitlement to that benefit ( exGov. may not condition a benefit on a req. that a person forgo a const. right Rust v Sullivan
The Respondent, Sullivan (Respondent), instituted regulations that prohibited federal monies to be used to educate Medicaid recipients about abortion as a family planning option.

Holding- The government can selectively fund programs without violating the United States Constitution (Constitution); if it believes the funded programs encourage certain activities it believes are in the public interest.
8 categories of Speech1. 2. 3. 4. 5. 6. 7. 8. 9.

Incitement and advocacy of crime Defamation Obscenity Symbolic conduct Provocative speech Commercial speech Campaign contributions Expenditures And the speech of public employees

Analyzing For Exam 1. What is the ID of the plaintiff? Who is filing the lawsuit? a. 4- categories: Public official/or running for public office (least amount of protection) They must prove by clear and convincing evidence the falsity of the statements o Actual Malice: Def. knew that statement was false and acted with reckless disregard of whether it was false or not

Public official- (apply NY Times v Sullivan standard)... someone who assumes a role of special prominence in society Must voluntarily and affirmatively thrust themselves into the limelight

private figure speaking on a matter of public concern (state can allow plaintiff to recover compensatory damages if there is proof the statements were false and made knowingly and at least negligently)...still must prove actual malice to get punitive damages Private figure speaking on a private matter (you can collect presumed and punitive damages absent actual malice)...most protection -Brandenburg v. Ohio -kkk invites press to a rally where a film is shown that has some bad speech in it...kkk leader is convicted and fined and must serve jail time based on statute that prohibited cynicism/bad cant do this -state cant forbid advocacy of bad must incite imminent lawlessness in order for state to step in -SC uses clear and present danger test here to say that there was no imminent danger and thus first amend. Applies -Defamation -If meant to harm anothers reputation than it invokes 1st Amend. Protection


The miller test- Whether "the average person, applying contemporary community standards",
would find that the work, taken as a whole, appeals to the prurient interest, Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,

Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. The work is considered obscene only if all three conditions are satisfied

NY Times Co. Sullivan-(need to look at this again () A public official, political candidate or public figure may not recover in tort for a defamatory statement relating to his official conduct unless the statement was both false and made with actual malice o SC will not protect obscenity o test for obscenity: whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest (adjective meaning characterized by or arousing inordinate or unusual sexual desire); whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. -if all the following are met than the expressive conduct is obscenity and not protected by the first amendment

-obscenity: the material in question must both arouse and disgust

Roth V US The Respondent, the United States (Respondent), passed a law that prohibited the mailing of obscene, lewd, or lascivious book, pamphlet, picture, or other publication of an indecent character. Petitioner was convicted of violating this statute because he mailed sexually explicit advertisements and a book to requesters. Holding- The federal law banning such speech is constitutional as long as the appropriate standard of obscene is used. Obscenity is not communication and is without social value. Test for obscenity- Obscenity is a type of unprotected speech. Obscene material deals with sex in a manner that is appealing to the prurient interest. New York v. Ferber Use of children in pornographic materials has increased over the years causing the introduction of many state laws prohibiting such activity. The Respondent was a storeowner who sold material showing children under the age of 16 engaged in sexual activities. o Ferber says he didnt have anything to do with the making of the film, just distributing Child Porno is never covered by 1st amendment Holding- the Court ruled unanimously that the First Amendment right to free speech did not forbid states
from banning the sale of material depicting children engaged in sexual activity. Child porno doesn't go by miller test

Symbolic Conduct
Texas v Johnson A conviction for burning the United States flag based on a Texas law was overturned after the Supreme Court of the United States (Supreme Court) found that the Texas law was unconstitutional. Holding- burning the flag is constitutionally protected in this case b/c area is not quite enough

Provocative Speech
Words that might offend others and possibly lead to violence or other disruption o Fighting words, profanity, hate speech, threats

Chaplinsky v State of New Hampshire A New Hampshire statute prohibited any person from addressing any offensive, derisive or annoying word to any other person who is on any street or public place or calling him by any derisive name. Chaplinsky, a Jehovahs Witness, called a City Marshal a God damned racketeer and a damned fascist in a public place and was therefore arrested and convicted under the statute. Holding- Fighting words are not entitled to protection under the First Amendment of the United States Constitution (Constitution)

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. California -C has a jacket and wears it to court house and has words on the back of the jacket that said F the Draft -C taken into custody and convicted -how far does Chaplinsky rule go? -when does speech become provocative...apparently here the F word is not enough to criminally prosecute C -there is a fine line drawn here As long as you arent doing anything, you wont be prosecuted for provocative speech RAV V CITY OF ST PAUL, MINN Defendant places a burning cross in a black persons yard, this violates St. Paul BiasMotivated Crime Ordinance, which provides that Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender commits disorderly conduct and shall be guilty of a misdemeanor Def. claims this violates his 1st amendment and is content based Holding- the ordinance invalid on its face because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses. *** remember states cant forbid advocacy of bad behavior. You must incite imminent lawlessness in order for state to step in SC uses CLEAR AND PRESENT DANGER TEST- TO SAY THAT THERE WAS NO IMMINENT DANGER AND THUS 1ST AMENDMENT APPLIES.


Advertising and other forms of business communications Originally purely commercial speech received no first amendment

Central Hudson Gas and Electric Corp. v. Public Service Commn of New York Key case for commercial speech Commercial speech divided into 2 categories Commercial speech that concerns an unlawful activity or that is fraudulent or misleading has no first amendment protection Regulation of other commercial speech is reviewed by a test similar to OBrien scrutiny Gove may regulate it if Gov. has a substantial interest, the regulation directly furthers the interest and the regulation restrains speech only to the extent necessary to further the interest(compelling Gov. interest is not required) must meet all 3 req 44 Liquormart v. RI R.I. law prohibits the advertising of Alcohol in except by tags in the store or signs in the store therefor the law bans ads in print or broadcast media

Ps are a discount liquor retailer that wanted to advertise low prices for there alcohol, but were previously fined for ads that implied (w/o identifying) low prices for ALC. Holding- when a state is trying to protect the public from untruthful and misleading info that is ok, anything is not Commercial speech is protected by the 1st


Campaigns have a significant political speech component, and spending money is viewed as a form of expression 1st protects against this, because they cant affect my ability to convey my political message (speech), although you can have reasonable restrictions on the right to contribute, they may unduly influence or buy candidates.

Buckley v. Valeo The Federal Election Campaign Act of 1971 (Act), as amended in 1974, created an eightmember Federal Election Commission (Commission) and vested in it wide-ranging rulemaking and enforcement powers for administering the Act. A separation of powers challenge was brought that Congress was precluded from vesting in itself the authority to appoint members of the Commission.

Holding- in part constitutional, in part not 1. You can limit the amount any one person/group, gives to anothers campaign a. Here it is quantity, not the quality that is regulated 2. But you cant regulate how much a person gives of his own personal money to his own personal campaign a. Ross Perot can spend as much of his own money to get himself elected 8. SPEECH OF PUBLIC EMPLOYEES (WALK THROUGH THIS WITH CALEB Gov. employee may speak on a matter of public concern and Gov. may take adverse action only if the Gov. need as an employer exceeds the employees interest in free speech

This balance needed for to be able to control the speech and conduct of its employees is seen in: Connick v Myers District attorney fired assistant DA after she prepared and distributed a questionnaire soliciting the view of other staff on office morale, confidence in supervisors and etc. ADA claimed firing violated the 1st and SC drew a distinction adverse personal actions based on speech about private concerns generally dont get 1st protection

Garcetti v Ceballos-

The plaintiff in the case was a district attorney who claimed that he had been passed up for a promotion for criticizing the legitimacy of a warrant. The Court ruled, in a 5-4 decision, that because his statements were made pursuant to his position as a public employee, rather than as a private citizen, his speech had no First Amendment protection.


Who is the press? - Anyone who gathers info, conducts info, takes photos/recordings, and puts them together to convey the info to the public. Branzburg v Hayes
Paul Branzburg of the (Louisville) Courier-Journal, in the course of his reporting duties, had witnessed people manufacturing and using hashish. He wrote two articles concerning drug use in Kentucky. The first featured unidentified hands holding hashish, while the second included marijuana users as sources. These sources requested not to be identified. Both of the articles were brought to attention of law-enforcement. Branzburg was subpoenaed before a grand jury for both of the articles. He was ordered to name his sources. Eric Caldwell, a reporter for The New York Times, had conducted extensive interviews with the leaders of The Black Panthers, and Paul Pappas, a Massachusetts television reporter, who had also reported on The Black Panthers, spending several hours in their headquarters were similarly subpoenaed around the same time as Branzburg

All of the reporters were asked to come and testify and say who their sources were

Holding- the Court found that requiring reporters to disclose confidential information to grand juries
served a "compelling" and "paramount" state interest and did not violate the First Amendment.

1st extends no special shield or privilege to the press protecting them from being lawfully compelled to reveal their sources

Zurcher v Stanford Stanford students protest by seizing a hospital, police come in and get the shit beat out of them Next day in the school newspaper published pics of the attacks and the police showed up with a warrant to search the entire office for the negatives, film, and other pics that showed what happened that night at the hospital Newspaper says the search violated their 1st, , and 4th( they were not under any suspicion of criminal wrong doing

Holding- The 1st lends no greater protection against searches and seizures than those generally applicable under the 4th

The press does not have any exemptions from generally applicable laws. ( holding Zurcher and Branzurg)

Cohen v Cowles Media Co. Cohen gave info to 2 newspapers that a candidate for LT Gov.(Johnson) had been charged with 3 counts of unlawful assembly and convicted of petty theft Cohen gave the info to the papers on the promise that the newspaper would keep him confidential Based on promissory estoppel, he wins $200,000. MNSC vacates the judgment saying enforcement of promise of confidentiality under promissory estoppel thou would violate ds 1st

Holding- Promissory estoppel is a general law and the press is not above general laws The key is that enforcing general applicable laws against the press doesnt offend the 1st amend, even if the enforcement incidentally affects the presses ability to perform the function

Red Lion Broadcasting Co. v FCC Dealt with Fairness Doctrine which required broadcasters 1. To give adequate coverage to public issues, and 2. To present such issues fairly such that it accurately reflects opposing views

The Plaintiff, the Red Lion Broadcasting Co. (Plaintiff), alleges that its First Amendment constitutional rights were violated by the Defendant, the Federal Communication Commission (Defendant). The Plaintiff argued that a rule passed by the Defendant, requiring a person or group whose character, honesty or integrity is attacked on the Plaintiffs broadcast be given the opportunity to respond to the attack is unconstitutional Holding-. There are only a limited amount of Frequencies so the Gov. can regulate it Without Gov. Assistance many would not have access to these frequencies to voice their view pts.

Miami Herald Publishing Co. v Tornillo The Appellee, Tornillo (Appellee), brought suit seeking to force the Appellant, Miami Herald Publishing Co. (Appellant), to print a reply to an article, published by the Appellant, which was critical of Appellees candidacy for the Florida House of Representatives. The Appellee based his contentions on a Florida Statute, which granted him the right of reply.

Holding- A newspaper cannot be compelled to print a reply to its articles, which would necessarily be an abrogation of its own freedom of speech. This statute fails to clear the barriers of the 1st b/c of tis intrusion into the function of editors

Richmond Newspapers, Inc. v Virginia- (ask Caleb)

Members of the media sought access to a courtroom during a murder trial. After multiple mistrials etc. Does freedom of press guarantee journalists a right of access to Gov. proceedings to crime and accident scenes

Holding- that the right to attend criminal trials is implicit in the guarantees of the 1st amendmentw/o the freedom to attend such trials which people have exercised for centuries Absent an overriding interest articulated in finding the trial of a criminal case must be open to the public Public access to trial acts as an important check... like the systems of checks and balances that infuse our system of Gov.


A. The Establishment Clause- puts a wall between church a state a. The Separation of Church and State- Reynolds v US the con never state that there should be this. It is set forth in this case Establishment Clause protects 1. Adherents of minority religions who would face ostracism and coercion of the dominant religion could impose their religious views by law 2. Those who do not subscribe to any religion or hold any religious beliefs 3. Religious institutions and organizations such as churches which would inevitably be corrupted by the political process and the resulting desire to attain an consolidate power

1. Government Aide to Religious Institutions Everson v Board of Education of Ewing Township

A New Jersey law allowed reimbursements of money to parents who sent their children to school on buses operated by the public transportation system. Children who attended Catholic schools also qualified for this transportation subsidy.

Holding-doesnt violate. since the state was reimbursing the parents and not the religious org/schools, this cuts the link b/w the state and the schools. The benefit is to the family not the religion *** Neutral Aid: - permissible so long as no religious indoctrination occurs in those schools that can be reasonably attributed to Gov. Action. When looking at this type of aid determine where the Gov. Money goes (to the schools, children, families etc.) Bus money and field trip money may be ok, just because there is a religious group behind it doesnt effect it

Lemon v Kurtzman Dealt with RI and PA statutes where the Gov. was subsidizing the salaries for teachers in private school The cases involved controversies over laws in Pennsylvania and Rhode Island. In Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools. The Rhode Island statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each statute made aid available to "church-related educational institutions."

Holding- Yes, this violates the EC To be valid, a statute must have a secular legislative purpose, must not advance or inhibit religion, and must not excessively entangle church and state.

Lemon Test was created: 1. The government's action must have a secular legislative purpose;

2. The government's action must not have the primary effect of either advancing or inhibiting religion; 3. The government's action must not result in an "excessive government entanglement" with religion. If any of these 3 prongs are violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution. Tax payers have standing when constitutional action under the taxing and spending clause is in derogation of those unconstitutional provisions which operate to restrict the exercise of the taxing and spending power

In general tax payers dont have standing Zelman v. Simmons-Harris Poor parts of Cleveland had poor school systems so the state started a voucher program

The vouchers gave money so you could go to any public or private school of the parents choosing( verrrry neutral on its face) o Although the vast majority of private schools were religious in nature Ohio stated that the purpose of the statute was to provide a better educational opportunity for the children o

Holding- The program was one of true private choice and thus constitutional The fact that religious schools may be a benefit is doesnt matter Zelman Test the program must have a valid secular purpose, aid must go to parents and not to the schools, a broad class of beneficiaries must be covered, the program must be neutral with respect to religion, and There must be adequate nonreligious options.

2. Religion in Governmental Institutions

Engel v. Vitale The Board of Regents for the State of New York authorized a short, voluntary prayer for recitation at the start of each school day. This was an attempt to defuse the politically potent issue by taking it out of the hands of local communities. The blandest of invocations read as follows: "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country." o school contends that they are not violating the est. clause cause it is not to one particular god and kids could sit silently Holding- that it is unconstitutional for state officials to compose an official school prayer and encourage its recitation in public schools. o the operation of this activity acts in a COERCIVE WAY/ PEER PRESSURE

Wallace v Jafree Statute in Al. that allows for a minute of silence in schools AL. keeps amending the statute to add more words about prayer The statute fails cause Al. Senator Holmes says that the legislation was an effort to return voluntary prayer to the public schools o This violates the first prong of the Lemon Test If senator would have stfu then it would have been ok

Lee V Washington The Defendant, Rachel Weisman (Defendant), alleges that a school sponsored, nondenominational prayer offered at a public school graduation violated the Religion Clauses of the First Amendment of the United States Constitution (Constitution) o The principal told the rabbi what to say, this violates the EC

Santa Fe Independent School Dist. V. Doe Doe (Respondent) includes a number of current and former students both Mormon and Catholic who oppose prayer before each football game. Santa Fe (Petitioner) developed a policy that authorized two student elections. One was held to determine whether invocations should be delivered before the games, and the second one was to select a student prayer leader.

Holding- The state cannot force sponsored religious activity on its citizens by forcing them to choose between attendance and their own constitutionally protected rights Prayer before the football game is not allowed b/c the specific purpose was to preserve a popular state- sponsored religious practice.

Edwards v Aguillard The statute that Louisiana had that stated that you had to teach creation science and evolution together o If one is taught they both have to be taught

Holding- the SC says that the statutes purpose was to discredit evolution by counterbalancing it with creation science. And therefore promoting religion Marsh V Chambers Opening the Nebraska legislative session with a prayer

In the case of Marsh v. Chamber (463 U.S. 783 (1983)), the US Supreme Court upheld the tradition of having a minister open each session of the Nebraska State Legislature with a prayer. They found that this was not a violation of the Establishment Clause of the 1st Amendment. The Court did not look to any tests (like the Lemon Test), or any previous precedents to determine the constitutionality of the prayers. Instead, they simply noted that Legislatures have been traditionally opened with a prayer since the founding of the United States. o The Court noted that the Founding Fathers opened Congressional sessions with a prayer, so they must have thought it was not unconstitutional. "This unique history leads us to accept the interpretation of the 1st Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged."

Lynch v Donnelly-

The Plaintiff, Daniel Donnelly (Plaintiff), objects to a crche included in a Christmas display as violating the Establishment Clause of the United States Constitution (Constitution)

Holding- This does not violate the Establishment Clause o o o o It is not feasible to have a total separation of church and state We are now moving away from the wall approach, because it doesnt accurately portray the complex relationship of religion and Govt intertwined through history. Apply lemon Test and say that display is not unconstitutional Seems to rely on NEUTRALITY, The city is celebrating a holiday for secular purposes that happens to be based on religion

McCreary County, KY v ACLU A court house with the king James version of the Ten Commandments, gold framed o King James is very very religious o People say it violates the establishment clause o Kentucky then puts out a bigger display o They include the magna carta and the star spangled banner to show that it is neutral and has tons of other historical stuff They had the open ceremony a pastor to proclaim the existence of god

Holding- Unconstitutional, Justice Sutter, since it was put out with no context show that it is religious means. o If the display had been displayed with other components of history right off the bat!!!!!!!!!

Scalia, Thomas dissent- that if you are concerned of the structure and concern of our society, all of which are essential to our society you have to allow the state to engage into a moral aspect and sometimes morality and religion are linked

Van orden v Perry o They have 17 monuments to commemorate the Texan identity( this is what they argue) in the Texas state capitol o Its a 10th commandments display o Does this violate the EC? No o B/C of the location and private commissioning behind the monument here it does not violate the EC

Holding- This is not striked down, the difference is the way they display it, the focus on the history. The context is more passive, not as in your face, its in a park not a school It has a historic purpose. (Also since it is not a school it doesnt need strict scrutiny) o Justice Thomas- establish = coercion

The Free Exercise Clause, 2nd component of freedom of religion

o o o o o The court cannot punish you for holding religious beliefs Govt cannot to inquire into the truth or falsity of your beliefs The Govt can impose special disabilities based on those beliefs Individuals generally may practice their religion freely (pray, fast, sing etc.) However free exercise clause doesnt mean that individuals may take any action that they choose in the name of religion

If your religion breaks the law: Application of the law vs. the burden on the religion o o o Look at is the law neutral, and how is it tailored, if it intrudes into religious freedom then a strict scrutiny is required

Sherbert V Vernero o o o o Spartanburg SC, deals with 7 day Adventist church goer refuses to work on Saturday, due to her religion She lives in a mill town and it is against her religious rights to work on Sat( thats there Sabbath) She gets fired, goes downtown to collect unemployment o The problem is not that she got fired, it is the city said no unemployment The city says this is bs, and you get no unemployment cause you can work We apply strict scrutiny, a fundamental right has been intruded upon

Consideration of strict scrutiny is how you attack this Holding- She did not have to work on Saturday, the state argues they narrowly tailored it the best they could, and cant have people not working on sat. But the court says its BS and it is unconstitutional the Free Exercise Clause of the First Amendment required that government demonstrate a compelling government interest before denying someone a religious fundamental right o Burdon of Free exercise of religion and no compelling state interest= unconstitutional