Clarke Con Law II Outline PDF

**[Constitutional Law II Outline]** Professor Ku I. **CONSTITUTIONAL PROTECTION** A. Intro B. State Action Doctrine C. Incorporation II. **SUBSTANTIVE DUE PROCESS & INDIVIDUAL RIGHTS** A. Right of Privacy B. Abortion C. Right to Die D. Sexual Liberty E. Marriage III. **PROCEDURA...

**[Constitutional Law II Outline]** Professor Ku I. **CONSTITUTIONAL PROTECTION** A. Intro B. State Action Doctrine C. Incorporation II. **SUBSTANTIVE DUE PROCESS & INDIVIDUAL RIGHTS** A. Right of Privacy B. Abortion C. Right to Die D. Sexual Liberty E. Marriage III. **PROCEDURAL DUE PROCESS** A. Non-Criminal Cases IV. **ENUMERATED RIGHTS: RIGHT TO BEAR ARMS** V. **EQUAL PROTECTION** A. Traditional Approach: Rational Basis B. Race & Ethnicity Ancestry C. De Jure and De Facto Discrimination D. Affirmative Action E. Gender F. Other Classifications G. Fundamental Rights VI. **RELIGION** A. Establishment Clause B. Aid to Religion C. Official Acknowledgement D. Free Exercise VII. **FREE EXPRESSION** A. Advocacy of Illegal Action B. Obscenity C. Fighting Words, Hostile Audiences, Offensive Words and Hate Speech D. Association ------------------------------- **CONSTITUTIONAL PROTECTION** ------------------------------- A. **[Introduction ]** Purpose of the class: Individual Rights Protected by the 14th, 2nd and 1st amendment   Declaration of Independence - \"Unalienable Rights\" - The idea is that there are certain god given unalienable rights - Natural Rights - Assumed, automatic, cannot be taken away - Gov. exists to protect / preserve rights that god endowed people with   **Bill of Rights** I. Speech, religion II. Right to Bear Arms I. Quartering Soldiers II. No Search and Seizure III. The \"Fifth\" Takings and Due Process IV. Trial by Jury V. Civil Jury VI. Cruel and unusual punishment I. Catchall I. States   What is the Bill of Rights missing? - Restriction on state governments - Right to vote - Equality and non-discrimination - A prohibition on slavery Civil War Amendments - XIII- Prohibition of Slavery - XIV (14) - Due Process and Equal Protection - XV - right to Vote   B. **[STATE ACTION DOCTRINE]** State Action: Nearly all of the rights guaranteed by the Constitution are protected only against interference by the government - Sometimes, even private individual's actions are found to be "state action" and thus subject to the Constitution. General Rule: The constitution only applies to the government   **[State Action Doctrine:]** **Gives protection against action by government or private actor, when there is a: (1) government function and (2) entanglement or encouragement. Consequently, if an actor has a sufficiently close nexus to the state, the constitution applies.** **Always ask first: Is the entity in the fact pattern a state actor?** Two strands of State action: A. Traditional Government Function B. State Entanglement/Enforcement  When the Court has held that a private actor is a state actor for purposes of the Constitution: A. Carrying out traditional government function - Narrow and constrained by the line of cases B. Significant state involvement/entanglement A. **[Traditional Governmental Functions]** State action is found when a private person carries on activities that are traditionally performed exclusively by the state. - To date, only running a town and running an election for public office have been found to be such exclusive public functions. Examples of State Action: I. **Party Primary Elections or Caucuses: Yes** **Smith v. Allwright** - a state convention of Democrats established a rule that only whites could vote in the Texas Democratic Party and the racial restriction was held to be a violation of the 15^th^ amendment **Terry v. Adams** -- State Action - county political group whose candidate almost always runs unopposed in primary and general election cannot discriminate - Running elections is an exclusive public function, so if a private organization runs a preprimary that has a substantial effect on who is ultimately elected, its actions will be state action. I. **Private Park: Yes** **Evans v. Newton**: Devised a park to be used for whites only - The Supreme Court held that operation of the park in a racially discriminatory manner violated the 14th amendment. One reason for this conclusion was that the services rendered even by a private park were municipal in nature, like fire and police departments, park traditionally serves the community - Park owned privately but for public use II. **Company-owned towns: Yes** **Marsh v. Alabama** - Jehovah\'s witness was charged with criminal trespass for disturbing religious literature in the town wholly owned by a corporation. The court held that since the town was just like any other town, except for the fact that the title to the real estate was vested in a private company, operation of the town was a public function. - Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation. The owner of a "company town" with all of the attributes of a public town (e.g., homes, sidewalks, streets, police and fire protection, etc.) cannot deny a person's First Amendment right to distribute religious literature in the town, since the company town is equivalent to a town. III. **Shopping Centers and Malls** The Supreme Court held that the Public Function Exception to the State Action Doctrine applied when a company town prohibited leafleting, see Marsh v. Alabama (1946), but held that the exception did not apply when a shopping mall banned protesters, see Hudgens v. NLRB (1976) **(Current Rule) Hudgens v. NLRB** - The shopping center that is open to the public **DOES NOT** thereby assume their exercise Governmental functions and therefore is not treated as a state actor - Shopping mall not required to permit picketing on its private sidewalks - Now, the rule for shopping centers and malls is that if they want to stop you from protesting, they probably can. The owner of a shopping mall can deny people their First Amendment right to picket, since a mall does not have all of the attributes of a town. The owner of a shopping mall can deny people their First Amendment right to picket, since a mall does not have all of the attributes of a town. The Hudgens case came after the Court's decision in Jackson v. Metro Ed where the court stated that a private function only becomes a public function when the private entity is exercising powers that are traditionally **[exclusively]** reserved to the state. - Because operating a shopping center or a business is not a function traditionally sex exclusively reserved to the state, a privately owned shopping center is not constrained by the Constitution and can control who has access to its property. This is distinguishable from the Marsh case (company town) because all aspect of the town were owned by a private company but was essentially operating like a city and the operation of cities is traditionally exclusively a public function IV. **Requirement of state "exclusivity"** - The court has used this exclusivity requirement to reject the application of the public function doctrine. Examples of no state action bc of the exclusive nature of the "Government Function" **Utilities:** **Jackson v. Metro Ed** -Terminated power bc P was not paying bills - Issue - Whether Edison was a public entity subject to the constitutions due process? - Holding: **[No state action]** - Not a public entity, they are private and P cannot bring the claim under the Due Process Clause of the Constitution. Test the court used to determine whether or not the private entity is acting as a state entity: a. Public Function Test: The test states that if a private entity performs functions that are typically reserved for the government, then their actions can be considered state action; AND b. Is there a close nexus between a private entity actions and the governments regulation such that they could be seem to be/ a part of acting as the state. - Government does not provide the electricity power. Even though there is an electric monopoly, having a monopoly is not enough to show that the business was acting for the state. - Government does not regulate or direct the power company to do anything; to have power or to terminate someone. - There is no close nexus bc the state regulation and the actions of the private entity. - This is not a political party, or a public park - the gov does not normally regulate and provide power. Not a traditional government function. **Community accessed TV Channels:** **Manhattan Community Corp v. Halleck** - The operation of a public access TV channel on a cable system is not a public function if a private company operates the channel. - Therefore the operator of the channel is not a state actor and can engage in viewpoint discrimination that would violate the 1st amendment if done by the government. **Flagg Bros v. Brooks**- City arranged for her belongings to be stored in a warehouse owned by Flagg Brothers. Threatened to sell belongings if she didn't pay. - They are Storing goods on behalf of the government - Holding says no state action: Even when Gov asks or authorizes you to do something it is not state action B. **[Government Entanglement/Enforcement]** If the government is sufficiently involved in the private actor's conduct or encourages that conduct or benefits from it, the private party\'s acts will be deemed state action and subjected to constitutional review. - **The mere fact that the state regulates or licenses a business activity does not change the private action into state action** **Judicial Enforcement of Restrictive Covenant: Yes State Action** - **Shelley v. Kraemer-- restrictive covenant in community that limits selling property to whites only. Shelley owned a home & wanted to sell to a black couple. Neighbor (Kraemer) went to court to enforce the restrictive covenant.** - **The covenant is not imposed by the local government, it's a private covenant. Since this is a private agreement there is no state action. However, the court's enforcement of the covenant constitutes state action, and this would be in violation of the 14^th^ Amendment.** - **Every private transaction enforced by courts will essentially be state action**. Whenever the court enforces some private activity, they have to consider whether or not they are effectively violating a constitutional right. [Problems ] Will devising property on condition that if person marries a person \"not born in the Hebrew faith\" the property goes to someone else. - This is generally ok. This is a gift, rather than a sale. Child custody decree requiring private school tuition payments by father to a school that discriminates on the basis of race. - Formal distinction (not state action) - father required by court to give money to mother, but it's the school that\'s discriminating. Probably not state action b/c not close enough nexus btwn state action and the discrimination. Summary: **The test for state action \[are they subjected to the constitution\]** - Performing a public function - Strong enough connection between the state and the action - If they are doing something a government would normally do  A. **[INCORPORATION]** Constitution applies to the states - only some of the amendments, almost total incorporation - Incorporation is done through the due process clause of the 14th amendment. Before 14th amendment the bill of rights applied only to the Federal Government, did not apply to the states **Almost everything in the Bill of Rights is incorporated -** This means the state court is bound against the amendments the same way the federal government is   Fully incorporated: The 1st, 2nd, 4th, and 8th. Partially incorporated: The 5th and 6th Not incorporated: The 3rd and 7th **Adamson v. California** - In state court for a murder trial and chose not to testify regarding evidence against him - Jury drew inferences on his refusal to testify - 5th amendment: don't have to testify against yourself. Issue: This is state court and not federal court so does the constitution apply to state courts? Are they bound by the bill of rights in the state court? - Does the 14th amendment bring in the 5th amendment? - No **[Selective Incorporation]** (Majority) -- Specific protections in the Bill of Rights so fundamental and necessary to the concept of ordered liberty that they applied to the states through the Due Process Clause and this is not one of them. - Jot for Jot - Some rights are incorporated and would limit state government - Is the right against the states the same as the right against the federal government? - Courts have said it needs to be applied the same in states and federal governments **[Total Incorporation]** (Dissent): - The original purpose of the 14th amendment was to extend to all the people of the nation and a complete protection of the Bill of Rights. - There is no other rights protected just the first 8 amendments can be used against states and if it not apart t of first 8 then there is no protection against the state. - The 14th amendment made all the provisions of the Bill of Rights fully applicable to the states. **Rochin v. California**- In his home, police burst in and he takes the drugs (swallows them), police sees them, and they need the evidence to charge him so they involuntarily had his stomach pumped to find evidence of his possession of illegal drugs. - Rochin is arguing that they violated Due Process Majority: The conduct violated the 14th amendment due process. - Did not say which additional amendment in the Bill of Rights - Due process prohibits using methods that \"offend a sense of justice.\" - Police cannot extract by force what is in someone\'s mind, therefore, they may also not extract by force what is in his stomach. - This activity "shocks the conscious." **Court announces that Incorporation is not just a vehicle for bringing other amendments against the state gov it has some other independent rights against the states** **Breithaupt Shmerber v. California** - Blood sample from unconscious man involved in car crash - Holding: No violation of 14th Amendment due process - Did not shock the conscience - kind of raised the standard to make it harder to shock the conscience ------------------------------------------------- **SUBSTANTIVE DUE PROCESS & INDIVIDUAL RIGHTS** ------------------------------------------------- +-----------------------------------------------------------------------+ | **[How to Determine Existence of Fundamental Right?]** | | | | **Approaches:** | | | | 1. Roe Majority - By analogy from the Right of Privacy | | | | | | | | 1. **Current Law: Dobb's Rule / Glucksberg - History and Tradition** | | | | 2. Glucksberg Concurrence: Common law constitutionalism? | | | | 3. Lawrence - Did not reach the question of if there was a | | fundamental right and just held that in some cases the state has | | no legitimate interest at all and therefore no rational basis. | | | | **Fundamental Right Test:** | | | | 2. Is it a Fundamental Right? | | | | Ask: Is it Deeply Rooted in history and tradition? | | | | i. Look at passing of the 14th amendment in 1868 - we care about | | what people were thinking at this time bc when they enacted the | | 14th amendment due process clause, what rights they were | | protecting or were not protecting | | | | ii. If in 1868 something was criminalized even if after the amendment | | was enacted then it is deeply rooted. | | | | iii. Ex: Abortion was not deeply rooted bc it was widely and always | | banned | | | | iv.  If it is deeply rooted it has to be widely accepted in our | | history and tradition. | | | |   | | | | 3. If Yes deeply Rooted then: Strict Scrutiny | | | | 1. Compelling State Interest; AND | | | | 2. Narrowly tailored requirement (Are the means chosen | | "necessary" to meet that compelling projective?) -- **If | | there are less restrictive means available, the answer is | | NO.** | | | | | | | | v. | | | | **No Fundamental Right Test:** | | | | If **NOT** deeply rooted **NO fundamental right,** and the state must | | pass rational basis test | | | | vi. **[Rational Basis Test]**: the State Law must have a | | rational relationship with a legitimate state interest: | | | | | | | | A. Rational relationship between the law and what it does; AND | | | | B. A rationally related to the achievement of that legitimate | | objective | +-----------------------------------------------------------------------+ A. **[Right of Privacy]** **Buck v. Bell** - State had a sterilization law basically saying a group of people should not have the right to reproduce.Court upheld this law **Skinner v. Oklahoma** - The court invalidated state law, which authorized sterilization of persons previously convicted and imprisoned two or more times for crimes. - Violation of equal protection: something about this saw is discriminatory bc it imposes this law on one group of people. **Griswold v. CT** - CT law prohibits using a form of contraception or advising someone on it. State interest is to deter adultery Holding: Law Unconstitutional - Court recognizes there is a privacy right for married people to make these decisions about reproduction. - The right to privacy isn't specifically mentioned in the Constitution. Where does it come from? **Majority: Penumbra of enumerated rights** -- The protected activities in each of these Amendments (1,3,4,5,9) - Right to privacy falls within the zone / shadow of the amendments bc they are penumbras that are not specifically enumerated in the Constitution, but instead represent various zones of privacy into which the government cannot intrude. -  if you look at the Constitution as a whole, it looks like the framers were really concerned about protecting privacy, so you can imply that they meant to protect it. **Concurring: 9^th^ Amendment (catchall)** -- says rights not enumerated are still protected. But we don't know what these rights are.  The right of privacy in marriage is so basic and fundamental and deep-rooted in our society - so it can\'t be infringed. **Concurring: Due process clause of the 14^th^ Amendment** - Violates due process clause of the 14th amendment b/c it violates basic values \"implicit in the concept of ordered liberty.\" - Views this as a narrow right of privacy against married people...homosexuality, adultery etc. would not be protected and would still be a crime - **Dissent Black:** No basis in constitution for right of privacy, bc it is not written in the constitution.   Everyone agrees that the law criminalizing contraception for married couples are a violation of something in the constitution   Since the right emanates from specific fundamental rights, the right to privacy is also fundamental.  Therefore, its infringement is suspect and calls for **strict scrutiny**. - A state can still encroach on a fundamental right as long as there is a compelling state interest, and the law is narrowly tailored to serve that interest. **Griswold\'s Aftermath - Court extended Griswold beyond marriage.** **Eisenstadt v. Baird -- Single people** - Unconstitutional to prohibit contraception to single people under the theory if you will let married people, you should not discriminate against single people. B. **[Abortion]**   **Roe v. Wade** - Unable to get a \"legal\" abortion in Texas bc her life did not appear to be threatened by the continuation of her pregnancy - Holding: unconstitutional The right being protected: Fundamental right of privacy which is found in the 14th amendment Due Process Clause - Only personal rights that can be deemed \"fundamental\" or \"implicit in the concept of ordered liberty\" are included in this guarantee of personal privacy. **Strict Scrutiny** A. **If it is a fundamental right, the state has to demonstrate a compelling state interest in order to regulate/limit; AND** B. **The legislation must be narrowly tailored to meet this interest** State's Compelling Interest - as the fetus gets bigger the state interest gets bigger. Also preserving and protecting the health of a pregnant woman. I. **The compelling interest in preserving and protecting the health of a pregnant woman** - The compelling point is at the end of the 1st trimester (b/c medical knowledge shows that until the end of the 1st trimester, mortality in abortion is less than mortality in childbirth). Therefore, *after* this point, a State may regulate abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of the mother. II. **The compelling interest in protecting the potentiality of human life.** The compelling point is at viability (at approx. 28 weeks, b/c the fetus then presumably has the capability of meaningful life outside the womb). So *after* the point of viability, the State may regulate as far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. Narrowly Tailored: Under the framework the Court gave, the TX statute is too broad  and is held unconstitutional. **[Casey v. Planned Parenthood]** - Pennsylvania had a 24 hour waiting period; also have to provide notice to husband; under 18 need consent from parents - Roe is Reaffirmed - The Court is not disagreeing that this is a right, the court is analyzing the states interest - Governmental Interest: After viability (when fetus can live outside the womb), the govs interest is strong - There is also a pre-viability interest in protecting women\'s health Court upholds everything except spousal notification - Infringes on the right too much and interest is not strong enough   Undue Burden Standard: conclusion that a state regulation has the purpose or effect of placing a substantive obstacle in the path of a woman seeking an abortion of a nonviable fetus. Stare Decisis - Stand by prior decisions - Court does stick with Roe v. Wade here Is Stare Decisis a separate reason to uphold Roe v. Wade? - No absolute rule - Courts do change their mind sometimes. But Casey court says that the court should stick with it - Should only change the rule when there had been a change in the fundamental reasoning underpinning the previous decision. **[Dobbs v. Jackson]** - Law prohibits an abortion after the 15th weeks of pregnancy  Holding: Overrule Roe v. Casey  Rule now: 14th amendment Due Process clause does not protect right to an abortion. - 14th amendment does not protect this right therefore there is no constitutional issue and it up to the state government to decide on what to do or to the federal government. - Congress can try to pass a law to regulate abortion, the question wont be if the 14th amendment applies (which is doesn't) it will be whether Congress can regulate abortion via commerce **Test court uses for whether 14th amendment DP applies to**: - For the there to be a fundamental right that is not explicitly in the constitution, the right must be **[\"deeply rooted in this Nation\'s history and tradition\" and \"implicit in the concept of ordered liberty\"]** - **If it is deeply rooted then is it es sential to the scheme of ordered liberty and if it is then it is protected by the 14th amendment DP.**   **Abortion rights is not deeply rooted in this Nation\'s history and tradition and implicit in the concept of ordered liberty** - Because looking at history of abortion, states have banned it - Founders - People who ratified the 14th amendment did not want to protect abortion rights   If it is not a fundamental right and is not deeply rooted, then the state has to: Future challenges to abortion regulations will be subject to **[Rational Basis Review. ]** - **Rational legitimate interest Test:** - Does not have to be a right, just has to be rational. - This means that abortion regulations will be presumptively valid and upheld provided that there is a rational basis for a legislature to believe that the regulation would serve legitimate state interests. - Under this standard to Mississippi law is valid    Different Approaches/Divide: - Roe Majority - By Analogy from the right of privacy - Casey - Liberty interest, not necessarily a fundamental right - Scalia/Rehnquist/Alito: History and Tradition   Argument in favor of history and tradition - More straight forward - Pro-democracy bc it leaves it. Up to the states for the people to elect and return it to the political process and the dissent is restricting the peoples rights to make decision. - Downsides: Not open for adapting C. **[Right to Die ]**  **Washington v. Glucksberg**- State law crime to assisted suicide - prohibits doctor from aiding or causing a suicide. - Physicians need to show that the 14th amendment overturns this law and argue that assisted suicide is a fundamental right. - Similar argument to Griswold where it was not just a right to use contraceptive but the right to advise someone of it. Holding: No assisted suicide allowed - The Court held that Washington\'s **[ban]** was rationally related to the state\'s legitimate interest in protecting medical ethics, shielding disabled and terminally ill people from prejudice which might encourage them to end their lives, and, above all, the preservation of human life. Court's Substantive Due Process Analysis: 1. Deeply rooted in history and tradition - Assisted suicide was not deeply rooted 2. Therefore, not a fundamental right so now state needs to have a **rational basis**    Souter\'s Concurrence: Common law constitutionalism - He is suggesting that down the road the court may intervene and find a fundamental right - If we learn something new about the nature of assisted suicide then you should come back in the future D. **[Sexual Liberty]** [ ] **Bowers v. Hardwick** - Hardwick was arrested for consensual homosexual sodomy in his home; was not actually charged with the crime. Statute bans **[general]** **[sodomy]**, not specifically homosexual sodomy - Is the right of sodomy a fundamental right? No because it is not deeply rooted in nations history and traditions (Looks at 1868 when 14th amendment was enacted) Court says the argument of the right of privacy in your own home did not matter because otherwise illegal acts are not shielded from the law simply because they occur in the home   Not a fundamental right under history and tradition test so now court goes to Rational Basis Test - Court says it is legitimate for the state of Georgia to restrict conduct that they feel is immoral   Dissent: - Generality argument: The right of sodomy is not the correct right we would be discussing... it is the right to privacy - The right majority is describing is too narrow, we are actually talking about a broader interest, to be left alone in your home. - The law here bans sodomy in general, not homo sodomy. - The majority is focused on homo sodomy and even further narrows the scope - It is problematic that the court focuses on homo   **Difference between Bowes and Lawrence:** Right at issue is phrased differently. - Lawrence framed the right more broadly as the right of privacy in your home while the Bowers court framed the right as narrow... the right to homo sodomy.   **Lawrence v. Texas**- Texas statute criminalizes same sex sodomy (as opposed to Bowers, where it was general sodomy) - Right at issue: the right to engage in private conduct in your home   Holding: Texas has no legitimate interest in infringing this right - Morality is not a legitimate state. - Court uses the Rational Relationship test **The court avoids the deeply rooted test... the court does not determine if there is a fundamental right. Court says regardless there is no legitimate state interest** - If something is not a fundamental right the state has to show the restriction of the right has a rational relationship with a legitimate state interest - Court did not find that the type of conduct being punished by Texas was a fundamental right... it just went right to the second branch of the test and found that there was no legitimate state interest. - There needs to be a governmental interest that is more than just a moral concern. Scalia Dissent: If we do this, horrible other things will happen: if the court asserts that sexual morality is not legitimate state interests, then none of the laws about adultery, bigamy, incest etc. would survive rational basis test.   **Lawrence v. Dobbs** - Can Lawrence and Dobbs coexist? - Yes because Lawrence rested on rational basis test, not the finding of a fundamental right and Dobbs applies fundamental right deeply rooted test. E. **[Family ]** **In Family related issues the court has typical held that there is a deeply rooted history and tradition of living with your family and is a fundamental right** **Belle Terre v. Boraas** - Ordinance restricting land use to one family dwellings and law says can't have a house that has two unrelated people living in it. Appellees lease their house to six unrelated college students, and challenged the ordinance on the ground that it trenches on the newcomers right of privacy - Have to be married, grandparents etc....can\'t be unrelated - Town preventing students/frats bc it may cause noise, no upkeep on the yard, dirty. - No fundamental right - State does have a rational basis here for prohibiting/restricting.   This case is contrasted with **Moore v. East Cleveland** Housing ordinance that limited occupancy to single families, but defined family so as to forbid appellant from having her two grandsons live with her. - Holding: Unconstitutional: - The city alleges that its goals are preventing overcrowding, minimizing congestion and avoiding financial strain on school system - Court said that these may be legitimate reasons, but the ordinance still could not be upheld - Court said there is a Right to live with your family: this needs to be protected because there is a strong history and tradition of broader families living together.   *Moore* is different from *Belle Terre* bc in Belle Terre there is no history and tradition of unrelated people living together. Belle Terre court said there was a rational basis. F. **[Marriage]** **Under history and tradition analysis marriage is a fundamental right** A. **Loving v. Virginia:** Ban on marriages between whites and non-whites - **Holding:** violation of Due Process Clause - The right being violated here is the right to marry which is a fundamental right - Marriage is in the history and tradition - This is an abridgement of a fundamental right to marry and if it is a fundamental right Virginia has to show that the state has a compelling state interest to prevent whites from marrying non-whites - No compelling state interest.   B. **Zablocki v. Redhail -** Ban on marriage by individual who failed to financially support prior children. - The court reaffirms the fundamental right to marry and holds the statute unconstitutional. - The state law clearly interferes with Redhail's right to marry on the grounds that he can likely never attain the financial means to fulfill his child support obligations and thus cannot receive a court order granting him permission to marry. - Since it is a fundamental right, the statute can be upheld only if it is supported by sufficiently important state interests - The state offered important state interests as justification for the statute A. i.e. counseling Redhail about his support obligations and ensuring out-of-custody children are financially supported. - There are less discriminatory means exist by which the Court may compel delinquent persons to fulfill child support obligations.   C. **Turner v. Safley** - Right of incarcerated to marry - Prisoners not allowed to get married to people outside the prison - The court ruled that the right to marry, deemed to be a fundamental right in *Loving* and *Zablocki*, remained so in the prison setting.   D. **State v. Munoz** - Right of spouse to know the reasons for denial of visa for immigration to US. - If spouse cant enter the US there are alternatives, go to where spouse is from or long distance relationship - Here, you can stay married but you cant live wherever you want. - Different from Loving and Zablocki bc they were not allowing marriage at all and here you can still marry. E. **Obergefell v. Hodges -** Couple lived in Ohio that banned same sex marriages. They went to Maryland where same sex marriage was recognized and got married. Other states refused to validate the marriage. Want to have their marriage recognized by the states - Holding: Same-sex couples have a constitutional Fundamental right to marry protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. - Everyone agrees that there is a fundamental right to marriage that is deeply rooted. - Advocates embraced the history and tradition of the fundamental right to marriage.   Four principles underpinning the protection of the right to marry apply equally to opposite and same-sex couples: 1. Autonomy: The right to choose whether and whom to marry is "inherent in the concept of individual autonomy" 2. Unity of two people: The right serves relationships that are equal in importance to all who enter them - The right to marry protects the intimate relationship between two people. 3. Safeguarding children and families: The right to marry protects children and families, which implicates myriad rights related to procreation and child-rearing; and 4. Social Order: Marriage is the very "keystone of our social order" and foundation of the family unit.   All the underlying principles that applies to opposite sex couples for marriage, applies the same sex couples.   Majority approach to justifying overturning laws that ban same sex marriage - For a state to restrict a fundamental right, the state must provide a compelling state interest - States reasons - Protecting and fostering families and same sex marriage undermines this. Allowing same sex marriages undermines the traditional view of man and women marriage - Religious reasons - Holding: These were not compelling state interests   Obergefell there is a fundamental right to marriage but narrowly defined is there a right to same sex marriage, what is the definition of marriage?     Dissents: everyone agrees there is a fundamental right to marriage   Roberts - limited to traditional marriage right and states can change if they wish but there is no fundamental right to a nontraditional marriage. - If there is a fundamental right to a definition of marriage that is relatively new, same sex marriage is not deeply rooted. - Is there a fundamental right to polygamist marriage? - If we recognize same sex marriage as a fundamental right instead of just the traditional view, someone could argue that polygamist is a fundamental right and if a state banned it, the state would need to have a compelling interest and the court may not be able to overcome this burden. - Robert is arguing if people in a state voted to ban same sex marriage and the Supreme Court comes in a says no you cant its unconstitutional and there is a problem with that - Therefore is a state wants to ban polygamy, the court can come in and decide to step in and say the state cant do that - The court is imposing their views.   **Michael H. v. Gerald D-** Michael is biological father but legally Gerald is listed on the birth certificate. Under California law a child born to a married woman living with her husband, who is neither impotent nor sterile, is presumed to be the child the marriage a presumption that may be rebutted only in very limited circumstances - CA is saying you may be biological but legally you have no parental rights. - Michael is asserting parental rights - Holding: Michael is not deprived of a fundamental right and the law is upheld - Right to be a biological father is not supported by history and tradition because being a father is defined through a presumption that the child was from the marriage. Marriage defined the legal relationship. - No historical precedent exists that addresses specifically the power of the natural father to assert parental rights over a child born into a woman's existing marriage with another man. - Definition of being a parent is very narrow: Only a parent if you are married and have a child in the marriage. -------------------------------------------------- **PROCEDURAL DUE PROCESS IN NON-CRIMINAL CASES** -------------------------------------------------- Federal government and state cannot deprive you of life, liberty, property w/out due process.   Substantive v. Procedural Due Process I. Substantive rights -- individual right, and state cannot interfere, or can interfere in a very limited way I. Procedural rights --The right to a fair procedure and the process the court has to give you before they infringe on your right - 5th and 14th amendment protects this right - Due Process requires that the government give you process before taking away your property or other rights.   +-----------------------------------------------------------------------+ | Framework: | | | | 1. Is there a liberty or property interest at stake here which is | | recognizable under procedural due process? | | | | 2. If there is a liberty interest or right, what kind of process do | | you get/deserve? | | | | - (did you get enough process?) | | | |   | | | | Procedural Due Process: Protection of an unenumerated right | | | | - If you win a procedural claim you get a right to a | | hearing/process | | | | - Need to show that you have a Liberty or Property interest, and | | deserve some sort of process before the interest is burdened. | | | | One you establish that there is a liberty or property interest, what | | hearing do you get? | | | | - Apply Mathews Test | | | |   | | | | Procedural Due Process Doctrine Test: | | | | 1. Property or liberty interest | | | | 2. Mathews Test | | | | 3. Unbiased adjudicator | +-----------------------------------------------------------------------+   1. **[Is there a liberty or property interest at stake here which is recognizable under procedural due process?]**   Requirements of procedural due process apply only to the deprivation of interests under the 14th Amendment protection of **l[iberty & property.]**   A. **[Property Interests]** To determine whether an interest deserves due process, the court will assess its importance to the individual, and then see it this interest outweighs the governmental interest.   **Goldberg v. Kelly** - Termination of Welfare benefits is Property. - Court held that due process requires that welfare recipients be afforded an evidentiary hearing (process) **prior** to the termination of benefits. - The 14th or 5th amendment will give you the right to a hearing or a chance to argue that you still qualify for the welfare benefits **Welfare benefits are a matter of statutory entitlement for persons qualified to receive them. The extent to which due process is afforded depends on the extent the individual will suffer a grievous loss and the recipient's interest in avoiding the loss outweighs the governmental interest in summary adjudication.**   **Board of Regents v. Roth** -- Government Job Not property interest - Roth was hired by state university and they didn't rehire him after a year. No due process required b/c his interest didn't implicate a liberty or property interest. Property: Property interests are not created by Constitution. They are created and defined by existing rules or understandings that stem from an independent source such as state law - Need a reasonable expectation to have a property interest. Like if they had promised to rehire him, etc. - A cognizable property interest involves more than an abstract need or desire; there must be a "legitimate claim of entitlement" by virtue of statute, employment contract, or custom. Liberty - he could get a job somewhere else - they didn't limit him or damage his reputation. - Where a reputation is at stake, \"notice & opportunity to be heard are essential.\"   A. **[Liberty Interests: ]**   An impingement on liberty is generally construed to mean **significant** governmental restraint on one's **physical freedom,** exercise of **fundamental rights** (i.e., those guaranteed by the Constitution), or **freedom of choice or action.** - Examples of loss of liberty include commitment to a mental institution, parole revocation, and loss of parental rights. - Injury to reputation alone is not a deprivation of liberty, unless the injury is so great that the individual has lost **significant employment or associational rights** **Vitek v. Jones** - Transfer to mental health facility. A Nebraska law provided that if a designated physician finds that a prisoner "suffers from a mental disease or defect" that cannot be properly treated in prison, the Director of Correctional Services may transfer the prisoner to a mental hospital. - Court held that involuntary transfer of a state prisoner to a mental hospital implicates a constitutionally protected liberty interest. - That interest was recognized in state law, but the court went on to hold that apart from the statutory recognition of a liberty interest, the transfer of a prison from a prison to a mental hospital should be accompanied by appropriate procedural protections. - We conclude that a convicted felon also is entitled to the benefit of procedures appropriate in the circumstances before he is found to have a mental disease and transferred to a mental hospital.   1. **[If there is a liberty interest or right, what kind of process do you get/deserve?]**   If an individual's protected interest is threatened by governmental action, the next step is to determine what type of process is due. The Court considers three factors in determining the amount of process that is due: I. The private interest affected by the governmental action; II. The risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards; and III. The government's interest, including the function involved and the burden (fiscal and administrative cost) of providing the additional process **Mathews v. Eldridge**- disability benefits terminated before hearing would take place. Eldridge challenged this -- need hearing before benefits taken away. - Holding: this didn't violate due process. Due process is "flexible" and called for "such procedural protections as the particular situation demands." You don't need the same level of due process for everything. In determining the amount of process due, the court should weigh three factors: a. Private Interest Affected. The interests of the individual in retaining their property, and the injury threatened by the official action b. Risk of an erroneous deprivation. The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards; c. Government Interest. The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication  - The higher to gov interest the more deference on what kind of hearing should be given Don't get the same process for disability and warfare benefits.   **Where the court has used this Mathews Test** - **Nelson v. Colorado** - Challenging the State\'s procedure for obtaining a refund of costs, fees and restitution they had been made to pay upon their initial convictions. - Holding: Fails due process measurement because defendants' interest in regaining their funds is high, the risk of erroneous deprivation of those funds is unacceptable, and the State has shown no countervailing interests in retaining the amounts in question. - **Hamdi v. Rumsfeld** - US citizen captured on battlefield and went into military detention, was not charged with anything and he brings a lawsuit - Liberty Interest: held in prison and cant get out - What hearing? Mathews Test to determine how much process he gets 1. Private Interest - Strong, he is locked up - not high enough that they automatically release him but high enough that he gets a hearing. 2. Risk of erroneous deprivation - Yes there is SOME risk and a possibility that the Gov could be making a mistake that he is an enemy - Gov says that caught on battlefield with weapon in his hand and US said he was an enemy combatant. 3. Government Interest - Very High - If he is an enemy combatant he would be killing Americans, Gov is here to save Americans - Court said he gets a hearing to argue that he was not an enemy - The nature of the hearing would be limited - **Boumediene v. Bush** - Military detention at Guantanamo Bay - United States citizens held as enemy combatants are entitled to meaningful opportunity to dispute the facts of their detention by a neutral decision maker - **Kerry v. Din** (Denial of Vias for spouse of US citizen)   2. **[Neutral decision maker]** Due process entitles a person to a fair decision maker. **Caperton v. Massey Coal -** Final requirement for Procedural Due Process - If there is a hearing, it needs to be an [**unbias** **adjudicator**] and if they appear bias that is a basis for procedural due process. - Appearance of bias is enough to find a violation of procedural due process - Appearance bias - low standard, no actual proof that there is bias,   -- -- **D.C v. Heller --**complete ban of handguns, few exceptions -- federal issue - Issue: Does 2^nd^ amend protect individual right to carry arms for defense or does it protect only a collective right to use the gun in a militia / military force? - 2^nd^ amend also protects individual right, even if not a part of militia etc. - Why is the ban a problem for 2nd amend? It is a complete ban. - Once they determined there is an individual right to bear arms, this is an easy case bc the law basically had no exceptions and was a complete ban. - This does not say that you cant regulate guns, just that there cannot be a complete ban. - But does not say what kind of regulation   **McDonald v. City of Chicago** - The state law was basically a complete ban and we know from Heller that the fed gov cant have a complete ban and this case now says the state cant have a complete ban either. - Court concludes that the due process clause incorporates the second amendment to the states. - If fundamental, then it is incorporated, and the Second Amendment is fundamental because it is deeply rooted in history and tradition. - Why it is deeply rooted - At the time they ratified 14th amendment, a federal right to keep and bear arms was created and it was a civil right. - When the 14th amendment was ratified, to make sure the people could arm themselves and protect themselves, especially the newly freed slaves. - Expanded second amendment applies to the state **NY State and Rifle v. Bruen** -- The NY law says you have to get a license to carry a gun and to get a license have to show proper cause (Special need). The burden is on the person wanting the gun. - Is the proper cause requirement consistent with 2^nd^ amendment? - Asserting the individual right to get a handgun (see Heller) and that right is applicable to the states (see McDonald) - Test the court uses - Historical Approach - To uphold this law look to history and tradition to find a historical example of a similar law or analogous to this law, the proper cause requirement - Holding: New York's special-need requirement is unconstitutional bc there is no law restricting public carry to only those with a special need for self-defense existed. **Current Rule for challenging a gun law: "Whether the law itself is consistent with historical tradition of firearm regulations"** - If we want to find out whether a gun law is consistent with the Second Amendment under the Bruen case, look at what kind of gun laws existed when the Second Amendment was ratified or when the 14^th^ Amendment was ratified bc that was when it became applicable to the states. Based on Bruen, what restrictions would be okay under the historical analogy test: - Restrict gun licenses based on the person seeking the license - Restrict bringing gun into sensitive places like churches, public school - Restrict into private places (Cant bring gun into private home or store; malls mogiht be considered to be able to restrict) - Require training, fingerprinting, and background checks NY got rid of the proper cause requirement and now defends a bunch of sensitive places where you cannot bring a gun *Bruen* teaches that if a modern firearm regulation is challenged under the Second Amendment, the government must show that the regulation is consistent with the nation's historical tradition of firearm regulation. The law need not be identical to a historically permitted regulation but must be relevantly similar, faithfully applying the Founders' intended balance of competing interests.  Fleshes out the confusion after the Bruen test - **U.S v. Rahimi --** Girlfriend gets restraining order from boyfriend after he hits her and tries to shoot at her. Rahimi is now unable to get a firearm, and he is being prosecuted for possessing a gun while he has a DV order against him. - The Federal statute prohibited a person with a domestic violence restraining order from possessing a firearm. The restraining order had to show that they are a credible threat. - Rahimi is arguing that he can't be prosecuted for possessing a gun while under a DV restraining order - To try to overtime his conviction under the 2^nd^ amendment the argument would be that the 2^nd^ amendment can not just restrict someone from having a gun bc they have a DV restraining order. - Holding: No violation of 2^nd^ amendment. - Historical Test: A historical tradition exists of regulating firearm use for the protection of others, as seen in the surety and going-armed laws that developed by the early 1800s. - Surety laws allowed magistrates to require a person suspected of future misconduct, including domestic violence and firearm misuse, to post a bond - If the person subsequently engaged in the prohibited conduct, the bond was forfeited. - The going-armed laws prohibited persons from going about armed with dangerous weapons to terrify others. A person who violated the law faced forfeiture of his firearms and imprisonment. Bruen and Rahimi Aftermath- The historical analogy test is not that you must find the exact law in the past. The court says that we want relevantly similar laws but not exactly the same laws. It has to be reasonably, relevantly similar so that we are faithfully applying the spirit of the second Amendment. **14th Amendment: No State shall deny to any person within its jurisdiction the equal protection of the** ---------------------- **EQUAL PROTECTION** ---------------------- When would Equal Protection apply, what fact pattern? - When the government classifies you in some way, there is a potential equal protection issue Equal Protection and the Federal Government - The Equal Protection Doctrine applies only to the States. However, the Court has held that it also applies to the federal government. - ***Bolling v. Sharpe*** - court held that the 5^th^ amendment due process clause incorporates equal protection norms which are binding on the federal government. Basically, the approach to 5th amendment equal protection claims is precisely the same as to equal protection claims under the 14th amendment. +-----------------------------------------------------------------------+ | **Equal Protection Framework** | | | |   | | | | 1. What kind of classification? | | | | - Traditional Economic | | | | - Race | | | | - Gender | | | | - Other | | | | 2. What level of judicial scrutiny? | | | | - Rational Basis | | | | - Strict | | | | - Intermediate | | | | - Other | | | | 3. How can the government satisfy this level of scrutiny? | | | | - Rational Basis: Legitimate state interest/rationally related | | | | - Strict Scrutiny: Compelling state interest/narrowly tailored | | | | - Intermediate: Important state interest/substantially related | | | | - Other | | | |   | | | | 4. Fundamental Right: Is there one being denied/burdened and if so, | | need a compelling interest (Strict Scrutiny) | | | | Economic or social regulations -- Rational basis | | | | - **If there is evidence congress is motivated by animus, then does | | not pass rational basis** | | | | Racial classification - Strict Scrutiny | | | | - If \"de facto\" classification (on face neutral) - what was the | | \"intent\" behind governmental action | | | | - Was intent to discriminate or was there some other purpose? | | | | - Was the race the motivating factor in action? | | | | - If there is no evidence of discriminatory intent or purpose, then | | apply rational basis | +-----------------------------------------------------------------------+ 1. **[Traditional Approach: Rational Basis]** If classification does not involve, race, gender alienage etc. then level of scrutiny is different - If it involves economic or social regulations the level of scrutiny is **rational basis**, which is deferential. - But if there is evidence of Animus then you will not pass rational basis.   I. **[Underinclusive Classification]** **Underinclusive Legislation --** Does not include all classifications necessary to completely solve the problem or in general meet the purpose of the legitimate interest. Rule: When local economic regulation is challenged solely as violating the EP Clause, the court will defer to the legislature & presume it constitutional and require only that the classification be rationally related to a legitimate state interest (unless the classification is suspect). - States are afforded wide latitude in the regulation of their local economies under their police powers.   **Railway Express Agency v. New York** *-* NYC regulation that you can\'t advertise on a vehicle unless it\'s your own business you are advertising. - You cant advertise someone else - You can advertise you own business  Holding: No violation of EP   Railway\'s Constitutional EP Argument: NYC is violated equal protection because they are banning the same advertising for one group of ppl, and allowing that same advertising for another. - The problem here is not that they\'re banning advertising   1. **What is the Classification** - People advertising their own business vs People advertising other businesses - Here everyone is being treated equally because they are not banning advertising, people can still advertise.   1. **What is the Level of Scrutiny** -- Rational Basis - Not saying that NYC is correct, but also not going to intervene, - this is allowable (NYC has a legitimate state interest) - What is the Interest of the State: prevent distractions to drivers & pedestrians (safety) - **Is it legitimate for NYC to want to reduce traffic accidents? YES** - The question here: Is this classification allowable as an effort to achieve this interest, the method of regulation (advertising) - If you can limit who can advertise, it reduces the amount of advertising and this is related to the purpose of reducing safety and distraction.   1. What is the Government\'s justification for classification - People would be distracted by the advertisements. 2. This is an underinclusive classification because if they have everyone from having ads there would be no equal protection argument:   **We do not have to be SURE if the solution could work, it just has to be reasonably (rational) that it COULD work**. - This is not egregiously wrong, the court should not intervene **New Orleans v. Dukes** - City ordinance banned all pushcart food vendors in the French Quarter except those who had continuously operated there for 8 or more years. Dukes (plaintiff) did not qualify under the exception (only been 2 years). This is a grandfathering law Holding: No Violation   This is underinclusive bc it does not ban all of them - Push cart Vendors: Arguing that they should be allowed to continue to use their pushcarts   1. [**Classification**:] General economic social welfare classification - As long as it does not use race, gender and not invading a personal fundamental right then the court is going to adopt a generous level of scrutiny - Older vendors v. New Vendors 2. **[Government Justification]** - they want to keep up the appearance for tourism 3. [**Level of Scrutiny**:] Rational basis - The classification challenged only needs to be rationally related to a legitimate state interest. - Legitimate state purpose - to preserve the appearance and custom valued by the Quarter\'s residents and attractive to tourists.   Rationally Related? Yes. Instead of proceeding by preventing all pushcarts, the city could have rationally decided that newer businesses were less likely to have built up substantial reliance interests, & the older businesses had become part of the distinctive character & charm of the area. - [Note]: the court is coming up with their own rationality of the law, & not necessarily asking the state to explain themselves.   I. **[Overinclusive Classifications]** - Subject an entire class to regulation, even though not every person within the class may pose the problem that the legislature seeks to address.   [Over inclusiveness VS under inclusiveness: ] - Over poses less danger than Under in terms of political accountability. Over does not ordinarily exempt potentially powerful opponents from a law\'s reach. - However, while Under fails to impose the burden on some who should logically bear it, Over actually does impose the burden on some who do not belong in the class.   **New York City Transit Auth. v. Beazer** -- NYC excluded all methadone users from any Transit Authority employment. If you are a methadone user you canot work for transit. Wanted to get rid of drug users and methadone users used to be drug users. Holding: No Violation   Justification: City's Purpose -- methadone use related to illicit drug use, and there is a concern for safety & job performance.   Classification is overinclusive -- some methadone users would have presented none of the risks associated with illegal drug use.   Level of Scrutiny- Rational Basis - Court held that this is rational. This is the most deferential standard of review possible - Creating more precise rules (not so overinclusive) creates an undue burden on Transit. - Too costly for such a big employer to make an individualized evaluation of each applicant. - Also, there\'s always a degree of uncertainty for ppl on methadone (not sure if they will stay free of illicit drugs). - No difference in the degree of rationality of the classification if it were only part of the class rather than the class as a whole.   **States can adopt [non-discrimination laws that are broader than the constitutional protection. ]**   II. **[Actual v. Plausible Purpose]** Rule: As long as there *could be* a rational/plausible reason, then it's ok. The court doesn't require the legislature to explain itself. Doesn't matter that it's not the actual purpose. **United States R.R. Retirement Bd. v. Fritz --**Similar to pushcart vendor case. Employees who worked less than 10 years do not receive windfall benefits. Some people got more benefits, some people got less benefits   Holding: No violation   1. [Justification:] Congress has no explanation   1. [Classification]: Those who worked \>10 yrs & \>25 yrs vs. those who worked in between 10-25 yrs. a. Those who worked 10-25 yrs don't get certain benefits   1. [Scrutiny] - Rational basis of a legitimate governmental purpose - Legitimate purpose --Avoid going bankrupt.   **If we don't know why they did this, can it be rational?** - **Yes, as long as there is a plausible reason why, that can satisfy the rational basis test.** - Court comes up with some plausible reasons. [Dissent]: look at the actual purpose when enacted, not post hoc justifications. It does matter the real reason behind legislation.   III. **Applying the EP Rational Basis Scrutiny to Invalidate Classifications**   **If there is evidence congress is motivated by animus, then that is not okay**  **United States Dept. of Agriculture v. Moreno - HIPPIES CASE -** Food stamp act excluded any household containing an individual who is unrelated to any other member of the household.   Holding: Unconstitutional - **Where court applies the most deferential standard (rational basis), still struck something down (you can still fault EP under rational basis if there is evidence of animus toward a particular group)** Legislature's Legitimate Purpose -- held that state acted for impermissible purposes i. Purpose of the act was to raise level of nutrition among low-income households. - But court said the classification is totally unrelated to this purpose. - Looks at legislative history -- intended to exclude hippie communities. **Not a legitimate purpose.** - **Even if the purpose was to discriminate against hippies it would still not be rational.** ii. State argues issue of fraud which is the purpose behind the exception -- - But court said too underinclusive. If ppl were to commit the fraud, then they would just change their living arrangements to receive the benefits. The provision only excludes those ppl who are so poor they can't change that.   ***Moreno* can be read narrowly to hold that \"a bare congressional desire to harm a politically unpopular group\" is not a constitutionally permissible purpose.** IV. **Weird Classifications:** **Village of Willow brook -** Easement Requirement - Homeowner alleged village imposed unusual easement requirements on her. - Is this an EP issue if it applies only to her - This makes the EP argument stronger because the city drafted a set of rules that only punishes one resident, and this raises a red flag of discrimination   **Logan v. Zimmerman Brush Co.** (1982) - statutory discrimination against claimants who did not get a timely hearing (b/c of the statute of limitations), through no fault of their own. i. State terminated a claim which the State itself had mis scheduled. This is not rational for the purpose of expediting the resolution of disputes. 2. **[Race & Ethnicity Ancestry]** 13^th^: outlawed slavery and authorized Congress to enact implementing legislation, but it did not expressly confer any further guarantee of equal protection 14^th^ Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws   15^th^: Prohibits racial discrimination with respect to voting rights. First Post Civil War Race Discrimination Case: - **Strauder v. West Virginia -** State law forbade black people from serving on grand or petite juries. - The Fourteenth Amendment was adopted to protect a race of people, recently freed from slavery, from adverse action by the states, and to prevent the states from denying them their civil rights. - It further authorized Congress to enforce these provisions by appropriate legislation. - The Fourteenth Amendment is a declaration that all persons, regardless of race or color, must be held equal under the laws of the states. - No state may discriminate by law against a person because of his race. - The words of the amendment contain an immunity / right most valuable to people of color -- exemption from legal discrimination. B. **[Separate But Equal]**   ***Strauder* was Political Equality and *Plessy* is Social Equality** ** ** ** Plessy v. Ferguson** - Louisiana law required that railway passenger cars have equal but separate accommodations for the white and colored passengers. Plessy (7/8th white; 1/8th black) and was entitled to every right of the white race. He was then arrested when he refused to vacate a seat in a coach for whites.   **Key Point: separate but equal was a different type of equality that the constitution was not concerned with** [Majority (7:1)]: Separate but Equal is constitutional. This law is not unreasonable or obnoxious to the 14th amendment   Other State laws creating racially segregated facilities did not violate the EP clause if those facilities were separate but equal. - The Louisiana Law recognizes the fact that two races preferred to remain segregated. Strauder v. West Virginia - it was held that a law of the state forbidding black people to serve on juries was a discrimination which implied a legal **[inferiority]** in civil society, which lessened the security of the colored race and was a step towards reducing them to a condition of servility.   Every exercise of the police power must be **reasonable** and extend only to such laws as are enacted in good faith for the promotion of the public good and not for the annoyance or oppression of a particular class - In determining **reasonableness**, the state is at liberty to act with reference to the established usages, customs and traditions of the people and with a view to the promotion of their comfort and the preservation of the public peace and good order   Court uses **reasonability in its scrutiny** of the law and holds that legislation to separate the races in rail road cars is reasonable.   1. Government purpose - public welfare a. Tradition -- they've done it in the past b. People have grown accustomed to segregation, and it keeps good order in our society   1. Although the 14^th^ amendment requires the state to guarantee equal protection, they say that separate is ok as long as it's equal, and there are equal accommodations.   [Dissent] (Harlan) - **\"Our Constitution is color-blind.\" What else can arouse hate and distrust more than to perpetuate the idea that there is a difference in the races that we need to separate them. \"Equal\" is misleading. The problem is that although separate *can* be equal, in reality, it is not.**   Justice Harlan and the "Color Blind" Constitution - **Cumming v. Richmond County Board of Education**: Upholding a county school board's decision to close an all black high school while continuing to maintain an all white high school. - The board had chosen to use its limited resources to provide primary schooling to a large number of black elementary school children rather than to maintain a high school for a small number of students - **US v. Wong Kim Ark** - Harlan dissented from a court\'s decision holding that a Chinese person born in the US to non citizen parents was entitled to citizenship by birth. - He concluded that Congress could permissibly prescribe that all persons of a particular race or their children cannot become citizens. ------------------------------------------------------------------------------------------------------------------------------------------------------- **Racial/ethnic classifications are subject to strict scrutiny. The classification must be narrowly tailored to a compelling governmental interest.** ------------------------------------------------------------------------------------------------------------------------------------------------------- *** *** **Korematsu v. United States** - First case to apply strict scrutiny to racial classifications - After the Japanese attack on Pearl Harbor, the Government started taking people of Japanese ancestry and sending them to relocation centers; no evidence of involvement in any sabotage. - Korematsu was an American citizen (of Japanese ancestry) and was convicted for not relocating.   Holding:  Government restrictions targeting a specific racial group are inherently suspect and subject to strict scrutiny but the need to protect against espionage outweighed Korematsu's rights.   If a restriction addresses a pressing public necessity, then that necessity might satisfy strict scrutiny, and the restriction may be upheld. - However, racial antagonism is never sufficient to satisfy strict scrutiny. It does not matter that many Japanese Americans remain loyal to the United States. The military has determined that many within the impacted population retain loyalties to the Japanese government. - Further, the government does not have the resources to make individualized determinations of loyalty during the war effort. Compulsory exclusion, though constitutionally suspect, is justified during circumstances of "**[emergency and peril]**." Gov't doesn't have the time to sort through everyone to figure out who is actually dangerous. - If there\'s any evidence that the purpose of the order was just animosity towards ppl of Japanese descent, then this would be unconstitutional. - There\'s a lot of evidence of that here, but the court accepted the other purpose given - there\'s a legitimate threat that the U.S. is trying to protect citizens against.    **Ex Parte Endo** - basically same facts as *Korematsu*, he was detained in a relocation center bc he was of Japanese ancestry. Except the government had conceded that the individual of Japanese ancestry was not a threat, so the Court ordered Endo\'s release. - The decision was not based on the constitutionality of the government\'s action, but rather that there\'s no reason to hold Endo if there\'s no security reason for holding her.   [Criticism of *Korematsu*] -- This was not justified by military necessity, and the decision was not driven by analysis of military conditions. The real reasons were race prejudice, war hysteria, and the failure of political leadership.   **[Discrimination Against Racial and Ethnic Minorites: Modern Cases ]**   **Separate but Equal is Inherently Unequal** - Segregation in public education is not reasonably related to any proper governmental objective. \* * Court applied Plessy doctrine in a variety of cases to find that the system is not equal even if it is separate. - Segregated Law schools was a violation of EP bc they were separate but equal The legal innovation is not that they were desegregating institutions bc they were already doing that before Brown v. Board - Brown is important bc It went further to say that in public education, there can never be separate but equal, no matter what evidence you give, it is invalidated.   **Brown v. Board of Education**- a bunch of black children want admission to the public schools of their community on a nonsegregated basis. In each of these cases the federal district court denied relief to the P on the "separate but equal" doctrine announced by Plessy.   **Holding: Separate but equal violates the 14th amendment, b/c it is inherently unequal**. Court moves for the desegregation of public schools. - **Stigma of inferiority**. Studies show a stigma in young children, and they are being punished in this environment. Segregation denotes an inferiority of blacks, & this affects the motivation of children to learn. - Even though there was equality between the schools, the separation is a violation of the Equal protection Clause   Does reasoning of Brown v. Board apply to only education or does it apply to public accommodations like such as in Plessy? - **Brown relies on the idea that education is different**   Brown does not adopt the Plessy \"color-blind\" dissent: The case makes it really hard for the Gov to justify racial classifications, but not impossible   Legal Consequences of *Brown* - Essentially, it\'s seen as a repudiation of *Plessy*, even though they didn't actually overturn it. *Brown* said *Plessy* doesn't apply in public education. Later cases say *Plessy* doesn't belong in any context. +-----------------------------------------------------------------------+ | Do not have to show that the law discriminates, it is if the law uses | | **race** to **classify** people that triggers **strict scrutiny | | (*Loving*)** | | | | If the law classifies race and triggers strict scrutiny, the gov has | | to have a compelling state interest that is narrowly tailored to | | avoid using race as much as possible (heaviest burden to meet) | | | | Does not matter that the law punishes one group more than the other | | (no requirement of discrimination) | +-----------------------------------------------------------------------+       **Loving v. Virginia** - The Lovings, a black woman and white man, were married in DC, and returned to reside in VA. They were convicted under a VA statute that prohibited whites marrying nonwhites. I. **Purpose**: the state\'s purpose was to \"preserve the racial integrity of its citizens, and to prevent the corruption of blood, and the obliteration of racial pride\" (white supremacy argument).   I. **State\'s equal application argument**- It is illegal for black to marry white and white to marry black. It punishes both groups the exact same.   I. **Holding**: Organic purpose of the 14th amendment was to eliminate all official state sources of invidious racial discrimination in the States. At the very least, the EP Clause demands that racial classifications be subject to the most rigid scrutiny. - Such race-based **classifications** are subject to **strict scrutiny** and cannot be upheld unless they are shown to accomplish a permissible state objective independent of the racial discrimination. - Under this test, the statute had no purpose beyond **invidious racial discrimination** (upholding White Supremacy) Also, the statute deprives them of liberty without due process. Marriage is one of the basic civil rights of man. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes surely denies due process.   **[Requiring Racial information]** - **Anderson v. Martin**- statute requiring that the race of candidates for elective office be on the ballot - Holding: Violated Equal Protection - "The vice lies in the placing of the power of the State behind a racial classification that induces racial prejudice at the polls." If you did apply strict scrutiny here what would the analysis be: 1. Suspect - the gov is using racial classifications so Strict Scrutiny is triggered 2. Compelling state Interest- Maybe. But if they do disclose then people would vote based on race not policies so problem not compelling. **[Family issues]** - **Palmore v. Sidoti** - Florida's denied child custody to a white mother because her new husband was black - Holding: Violated Equal Protection - Strict Scrutiny Analysis - Yes based on race - Compelling state interest: Best interest of the child: Pressures and stresses on children in schools, stigma of coming from non-racially traditional household. - This reason does not satisfy the strict scrutiny test   Foster children need to go to foster parents of same race - Courts addressing post-Palmore, race-based family law practices typically held them to be categorically constitutional before a congressional statutory intervention precluding the use of race as a basis for denying or delaying adoption and foster care placements, where race was not the exclusive factor considered as part of the best interest of the child assessment. - Family law has been conceived of as simply too 'different' to warrant the type of intervention typically demanded -- -- **Johnson v. California** - **Adds the Narrowly Tailored Requirement to Strict Scrutiny** - State prison needs to assign new prisoners to temporary cells based on race because they are worried about race riots in the prison system. - Court says it may be compelling - Problem here was not the compelling state interest, it was about **narrowly** being tailored. - Narrowly Tailored: The problem is that it is easier to use race, but did the gov try another way besides race to achieve the goal? - Unless you can show that there is no other way to achieve that goal without race, then you cannot use race.   **Equal Protection After Loving** - Establishes that a law that classifies on the basis of race triggers strict scrutiny - Do not need to show evidence that the law has impact on one group or the other, or that it was intended to impact one group negatively. - If you use race in the law then that triggers strict scrutiny and gov must justify under heavy burden **[De Jure and De Facto Discrimination]** I. De Jure discrimination - laws that explicitly discriminate against racial and ethnic minorities II. **De Facto (or intentional) discrimination - the law may be racially neutral on its face, but ends up being racially discriminatory** - May have been deliberately administered in a discriminatory way - May have been enacted with a purpose (or motive) to disadvantage a \"suspect\" class   Although the law is clear that the Equal Protection Clause forbids racial discrimination and classification in the enforcement of the laws, states still discriminate/classify in their laws even though on the face it does not look like it.   ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- **Enforcement of a law that is facially neutral can still violate Equal Protection based on its enforcement when deliberately administered in a discriminatory way and therefore is subject to strict scrutiny analysis. Have to show that you were being treated differently than similarly situated individuals of a different race were** ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- \* * **Yick Wo v. Hopkins**- Law neutral on its face (doesn't mention race), the reality was that only Chinese laundries were negatively impacted by it. About 80 similarly situated laundry operators who were not of Chinese descent were granted permits.   Holding: Violation of EP. - Equal protection is denied when a facially neutral law is applied unequally among similarly situated people. - Here, the San Francisco ordinance appears to be neutral and fair on its face. However, the ordinance has been applied unequally to similarly situated people.  -  These facts demonstrate that the permits were denied for no reason other than hostility against their Chinese nationality. Thus, the application of this ordinance has denied Yick Wo and Wo Lee the equal protection of the laws in violation of the Fourteenth Amendment.  There was disparate impact here - the law does not mention race but only has been applied to one racial group   The legislature had a very good purpose -- preventing fires. **[The problem here is with the law's application --]** the law is applied so unequally and oppressively as to amount to a practical denial by the State of equal protection.   **United States v. Armstrong** - 24 defendants prosecuted for drug offenses in 1991 who were all black.  - The claimant must show that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose, which may be demonstrated by showing that similarly situated individuals of a different race were not prosecuted. - Racial disparate numbers alone is not enough to trigger strict scrutiny standard. - Armstrong requires not just numbers alone, that there is similarly situated.   --------------------------------------------------------------------------------------------------------------------------------------------------------------- New Rule - **Facially-neutral law that has a racially discriminate impact doesn't trigger strict scrutiny unless there is a purpose/intent to discriminate.** --------------------------------------------------------------------------------------------------------------------------------------------------------------- **Washington v. Davis (1976)** -- Test administered to applicants to become police officers. About 4 times as many blacks then whites failed the test. Other than this test, the police dept had affirmatively sought to enroll black officers. There is no allegation that the Dept acted with discriminatory intent, but only that the test had a discriminatory impact. - This test was developed for federal government jobs, not just police officers a. Although disproportionate impact is not irrelevant, it shouldn't be the sole reason to trigger a strict scrutiny review of the law. - **Facially neutral conduct does not constitute an equal-protection violation merely because it has a disproportionate impact, affecting one race more than others. Have to show that there was intent that is racially discriminatory by the government actor.** a. There is no evidence that the test is motivated by a discriminatory purpose. - The test serves a legitimate government interest in determining which applicants are best suited for department positions. - Showing that there was no discriminatory intent: There are a substantial number of Black officers in the department; and the department actively recruits Black officers. The court applies **rational basis.** - The test is neutral on its face and rationally may be said to serve a purpose the government is constitutionally empowered to pursue (to make sure it\'s employees have verbal communication and writing skills).   Why the Court disfavors the \"effects\" test: - For the court to use strict scrutiny for every instance of a statute\'s disproportionate impact would infringe too far on governmental decision-making. Also, this open-balancing of all governmental acts would invite too many inquiries into impact that is not determined by legal rules. ** ** **[What is a discriminatory purpose?]** ** ** +-----------------------------------------------------------------------+ | **If there is no evidence of discriminatory intent or purpose then | | apply rational basis** | | | | - **Default is rational basis and back to pushcart vendors** | +-----------------------------------------------------------------------+ **Administrator v. Feeney (1979)** -- MA had an \"absolute lifetime preference to veterans\" for civil service positions (state jobs). This preference overwhelmingly advantaged males. - Court found that the distinction of veterans vs. nonveterans was not a pretext for gender, & was enacted for legitimate and worthy purposes. - They were not purposefully trying to prefer men over women, they were trying to give preference to veterans - There are too many men who are nonveterans to infer that the statute is a pretext for preferring men over women. - This is not an EP issue and does not trigger strict scrutiny. - The fact that men are also impacted (non-veterans) shows that there is no discriminatory purpose. - This is different from them saying that they are trying to preference men over women, this is a way to keep women out of these jobs (This would trigger EP analysis) - Need to have a permissible purpose     **Arlington Heights v. Metropolitan Housing Dev. Corp**- Held that a Village\'s refusal to re-zone land from single-family to multiple-family that then prevented construction of racially integrated housing did not violate EP. - To determine whether invidious discriminatory purpose was a factor, the court should inquire into circumstantial and direct evidence of intent. - The impact of the action is an important starting point, but since it's not always clear, other circumstances to look at are: 1. Historical background of the decision 2. Specific sequence of events leading up to the challenged decision 3. Departures from the normal procedural sequence 4. Legislative or administrative history - minutes of meetings, reports However, even if a discriminatory purpose is found, this doesn't automatically invalidate the law. - Instead, the burden shifts to the legislature to prove that the same decision would have resulted even absent the impermissible purpose. - If so, then the complaining party could no longer attribute the injury to improper consideration of a discriminatory purpose. **[Affirmative Action "Benign Racial Classification" ]** Intended to support or provide support for previously unrepresentative minorities. -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- **Now, we have almost a color-blind constitution that literally we see no race, the gov cannot use race absent a VERY compelling state interest (which diversity is not one)** -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- **Regents of CA v. Bakke** - University of California Medical School reserved 16 out of 100 spots were in its entering class for members of minority groups. The program was challenged by Bakke a white male applicant who was rejected. Applicants were admitted under the affirmative action program who had significantly lower grade point averages and test scores. - Bakke arguing that this violated EP clause b/c the policy was classified based on race so therefore strict scrutiny applies. - Holding: Dismissed the case Dissent - Justices that said the case should go forward: - Title 6 of the Civil Rights Act says that you cant be subject to discrimination on race, color or origin, so any school that receives federal assistance must adopt a non discrimination policy - Here, CA is discriminating based on race so Bakke should win Concurrence - Level less then Strict Scrutiny should apply bc whites should not get the same protection under the EP clause. - Whites are not a suspect class so classifications which disadvantage them are not subject to strict scrutiny. Justice Powell - Middle ground Justice - Upholds CA law differently - Does not adopt position that CA violated Civil rights Act and does not take position that White male should not get EP protections as other racial groups - Racial diversity is an important goal for higher education - diversity creates a better learning environment and this is why CA should be allowed to use race - This is enough of a gov interest to satisfy EP clause concerns - The problem here was the quota - Quota here says that no matter what your grades are, this spot will go to a minority no matter what - this is not narrowly tailored, did not try to avoid using race as much as you could. - Justice Powell says instead of a quota where they must have a certain number or minorities, you can have factors, where you give a boost in points to minorities for diversity   **Grutter v. Bollinger** - Univ of Michigan law school used race as a positive factor in admission, but not the only factor. - Majority adopts Powell rational - Policy was upheld. a. Law school interest in using race - Diversity is the justification and this satisfies compelling state interest test. b. Narrowly Tailored - Race is considered but it is not the only factor in admissions. - Court says: In 25 years the use of racial preferences will no longer be necessary and this may not be a compelling state interest in 25 years.   **Gratz v. Bollinger** - Admis