Gender in Law Final Exam Case Review PDF

Gender in Law Final Exam Case Review Case Key Title 7 Cases: - 4 losing cases: Barnes v. Train; Corne & DeVance v. Bausch & Lomb; Miller v. B of A; Tompkins v. Public Services Electric & Gas Co. - Meritor Savings Bank v. Vinson; USCA v. CA (appeal of former) 1st winner ! - Harris v. Forklift Systems; Oncale vs. Sundowner Offshore Systems; Vance v. Ball State University. Title 9 Cases: Grove City College v. Bell Due Process cases: Goldberg v. Kelly; Goss v. Lopez; Mathews v. Eldridge Chastisement Cases: Commonwealth v. McAfee; Fulgham v. State of Alabama VAWA case: US v. Morrison Differential Treatment Cases: Reed v. Reed; Frontiero v. Richardson; Ledbetter v. Goodyear tire & Rubber Co. ‘Morality vs. Unconstitutional Discrimination’ Cases: Gaylord v. Tacoma School District; Bowers v, Hardwick; Lawrence v. Texas Gay Marriage Cases: Goodridge v. Dept. of Public Health; Masterpiece CakeShop v. Colorado Civil Rights Commission Abortion Cases/’Regulating Our Bodies’ Cases: Muller v. Oregon; Griswold v. Connecticut; Roe v. Wade; Planned Parenthood v. Casey; Whole Woman's Health v. Hellerstedt; Box (indians dept. Health) v. Planned Parenthood of Indiana & Kentucky per curiam; Dobbs v. Jackson’s Women’s Health Organization 1. Barnes v. Train (1974) Rule statement: sexual harassment is not part of sex discrimination b/c sexual harassment is a private matter. “Sex” is purely sexual activity, not the gendered interpretation. a. Fact pattern: Barnes was employed by Train (her supervisor) and she claimed she was sexually harassed by Train with unwanted advances and comments that created a hostile work environment. Barnes alleged Trains conduct made her job unbearable and created a work environment that interfered w/ her ability to perform her duties. Barnes thinks she was discriminated against not b/c she was a woman, but b/c she refused to engage in a sexual affair w/ her supervisor which resulted in the termination of her job. b. Issue: Did the EEOC err in finding that Barnes had not been sexually harassed by her employer, Train, under title 7 of CRA 1964? c. Rule: Court found that sexual harassment is not a part of sex discrimination b/c sexual harassment is a private matter. They found she was fired not for being a woman, but for not having sex with him. “Sex” inclusion in the CRA is interpreted as purely a sexual activity, not the gendered meaning. The Federal District Court judges have erased the gender aspect. d. Application: e. Conclusion: Court ruled against Barnes. 2. Corne and DeVance v. Bausch and Lomb (1975) Rule statement: sexual advances are not sexual discrimination, these advances are personal urges that have nothing to do with company policy. a. Fact pattern: Corne & DeVance were sexually harassed (manhandled) and were out of work for refusal of it. Women who complied with the sexual advancements were promoted in the workplace. b. Issue: Can a supervisor/employer be held liable under title 7 of the CRA for creating a hostile work environment through repeated sexual advances and harassment toward female employees, even if the employer was not directly aware, but should have known? c. Rule: The court dismissed the claim as “sexual advances are not sexual discrimination”--a game of wordplay. The judge makes the distinction between a proposition you don't want that leads you to get fired b/c you didn't take the proposition vs. being fired simply because you are a woman. Also these advances were personal urges not a company policy (holding the company liable requires a justification that the company was benefiting from these advances in some way) d. Application: e. Conclusion: Court ruled in favor of bausch and lomb, the company is not responsible for their behavior. 3. Miller v. Bank of America (1976) Rule Statement: sexual harassment is not actionable under title 7 b/c the circumstances are not sufficiently tied to a workplace context like employment, etc. a. Fact Pattern: Miller said she was fired from her job b/c she rejected the sexual advances of her supervisor. Also, the bank filed to take appropriate action to address her complaints. b. Issue: Was title 7 intended to hold an employer liable for what seuxal harassment between one employee and another? c. Rule: The judge held sexual harassment not actionable under title 7 b/c the circumstances complained of were not sufficiently tied to a workplace context (like employment policy, etc) d. Application: e. Conclusion: Court ruled in favor of the bank. 4. Tompkins v. Public Service Electric and Gas Co. (1976) Rule statement: Sexual harassment did not constitute sex discrimination protected under title 7. a. Fact pattern: Tompkins said she was terminated after rejecting sexual advances from her supervisor. She argued her firing was a direct consequence of her refusal to engage which constituted discrimination based on gender. b. Issue: Was Tompkin’s termination was linked to her gender? Can sexual harassment by a male supervisor towards a female employee constitute sex discrimination under title 7 of CRA? c. Rule:sexual harassment and sexually motivated assault don't constitute sex discrimination under title 7. d. Application: e. Conclusion: Court ruled in favor of the Company. all of these first 4 cases rule no link to employment. US district courts assert that they are all private matters which are walls of responsibility from the employers. 5. Meritor Savings Bank v. Vinson (1986) Rule statement: sexual harassment that results in a hostile work environment is a violation of title 7. - Rejects the premise that in order for title 7 to be invoked, you need to have tangible loss of eveonimic character now just physiological aspects of the environment is enough to prove an abuse work environment a. Fact pattern: the manager at the bank made sexual advances toward Vinson–fondoled her, exposed himself to her, raped her in the bathroom so she leaves employment due to these conditions. When she brought a case against him, the manager denied the charges, arguing she frequently wore provocative clothing to work, had bizarre sexual fantasies, and detailed intimate details of her sex life to other employees. b. Issue: Does title 7 of CRA’s prohibition of sex-based discrimination apply to hostile work environments? Or is it limited to sex-discrimination resulting in only tangible loss (like economic). c. Rule: District court ruled in favor of the bank, holding that the employee wasn't asked to submit to sex as a condition of her employment so she wasnt sex discriminated against. Also, the bank had not been given notice of the harassment so it could be held liable/responsible for the manager’s actions. (we know they are liable though b/c they hired these people to begin with. d. Application: e. Conclusion: Vinson (plaintiff) lost and appealed to the US court of Appeals –case below where she ultimatley won. 6. USCA DC v. CA (Appeal) Rule statement: Sexual Harassment that results in a hostile work environment (harm to mental wellbeing that impacts their ability to perform their job) is a violation of title 7 of the CRA which bans sex discrimination by employers. a. Fact Pattern: Vinson reinstated her complaint on the grounds that she has a title 7 claim because of the hostile environment created. It was pervasive on the job–the harassment “illegally poisoned the psychological and emotional work environment’ so the court ordered a remand. The bank argued they were not liable because the court is concerned with tangible loss of an economic character, not purely psychological aspects of the workplace environment. b. Issue: Does title 7 of CRA’s prohibition of sex-based discrimination apply to hostile work environments? Or is it limited to sex-discrimination resulting in only tangible loss (like economic). c. Rule: SCOTUS held the bank liable, ruling that the language of title 7 isn’t limited to economic or tangible discrimination. The phrase “terms, conditions, or privileges of employment” indicates that congress intended to “strike at the entire spectrum of disparate treatment of men and women in the workplace.” Quid pro quo doesn't have to only be economic damage, it can be psychological, it's the transactional nature of quid pro quo that makes the company liable. Also, in title 7 there is a “conditions of work” provision, meaning that the environment/way you are treated are the conditions of work. (she was put in a hostile environment). Also the bank denied ruling on employer liability, the bank itself is liable. The bank argues they were w/o notice and couldn't be held liable b/c of that. The district court agreed but SCOTUS doesn't–the company cant shield itself from liability by saying “no one told us” b/c you own the company, you have liability over your employee’s actions, you manage them. Court also took the position that the supervisory personnel is liable but SH claims that rest exclusively on a hostile work environment did not accord strict liability. d. Application: e. Conclusion: Court ruled in favor of vinson. First victory that happens in the line of sex harassment cases–held the bank liable. 7. Harris v. forklift systems (1993) Rule statement: to constitute a hostile work environment under title 7, a workplace environment must be “severe or pervasive’ enough to alter conditions of the victims employment and create an abusive work environment. (you don't need to proove tangible physcological damage, just is a reasonable person would be effected by this, its enough) –loosens the burden of proof for severe and pervasive. a. Fact Pattern: Harris sued her former employer (forklift) claiming the president of the company had conduct toward her that created an “abusive work environment” (psychological damage) in violation of title 7 of the CRA of 1964. The District Court found employer often insulted Harris b/c of her gender, made her the target of unwanted sexual innuendos and asked her to retrieve coins from his front pocket. She quit and sued. b. Issue: Must sexual harassment “seriously affect an employee’s psychological well-being in order to create an “abusive work environment” that violates title 7 of the CRA? c. Rule: the district court concluded these comments didn't create an “abusive environment” under title 7 because they were “not so severe as to seriously affect her physical well-being” or lead her to “suffer injury”--on appeal the USCA affirmed the DC decision, so it goes to SCOTUS–they are questioning whether the harassment must seriously affect an employee’s psychological well-being to be actional as an “abusive work environment”. The ruled that so long as the environment would reasonably be perceived as hostile or abusive (as in Meritor), there is no need for it to ALSO be psychologically injurious. It is not major psychological damage that needs to be found, rather just a reasonable person’s psychological well-being affected–there is no mathematically precise test, just take into account all of the circumstances. Any conduct that is merely offensive and requires the conduct to cause a tangible psychological injury is valid. When the workplace is permeated w/discriminatory insult/intimidation, it is sufficiently severe. d. Application: Concurring: Scalia & Ginsburg. Scalia–accepts meritor’s interpretation of the conditions of employment, the test is not whether work has been impaired but whether working conditions have been discriminatorily altered. Ginsburg: agrees, but the critical issue is whether members of one sex are exposed to disadvantageous terms/conditions of employment to which members of the other sex are not imposed. So to prove that, the plaintiff doesn't need to prove their tangible productivity has declined but rather prove that a reasonable person subject to the discriminatory conduct would find this harassment. e. Conclusion: The court ruled in favor of Harris. They want something in the middle of psychological and economic harm, a wider latitude for the interpreter of the injury to not have to find it either an economic quid pro quo or psychological injury, but rather something in between. Also established using a reasonable person’s standard for well-being decline/harm. 8. Oncale v. sundowner offshore services (1998) Rule statement: sex discrimination consisting of same-sex sexual harassment is actionable under title 7 of CRA. a. Fact Pattern: Oncale alleged that he was forcibly subjected to sex-related, humiliating actions in the presence of the crew, and 2 employees physically assaulted him in a “sexual manner” and “threatened to rape him.” he complained to the supervisory personelle, but nothing changed. His supervisor even called him a name suggesting homosexuality. Oncale quit the job and said he voluntarily left due to sexual harassment and verbal abuse. When asked about why he left, he stated he felt he has to otherwise he would be raped/forced to have sex. Oncale alleges he was discriminated against in employment due to his sex (interpreting sex as sexuality) because he was gay. b. Issue: Does title 7 of CRA prohibit sexual harassment between individuals of the same sex? Does language “because of…sex” still apply when they are the same sex? c. Ruling: district court said as a male, he had no title 7 protection due to interpretation of the word sex–heteronormative view on sexuality, which was a way to get rid of the case–he did not fall within the narrow category. The company is saying title 7 is being turned into a general civility code–meaning the gov will be controlling the workplace, which doesn't go over well in capitalist america, intrusion into private property–the code is so broad it includes all these possibilities, so the gov is essentially controlling companies. The decision in Oncale is not a civility code however because title 7 only forbids behavior so objectively offensive as to alter the conditions of a victim's employment–not as across the board as civility codes are. Title 7 doesn't include conduct not so severe that it could make a workplace hostile. Title 7 prohibits discrimination on sex to protect men as well as women, so they have rejected any prosumption that workers will not discriminate against members of their own sex. Sexuality was included in this case–same-sex sexual harassment is actionable under title 7. d. Application: In the legal reasoning, they use a race analogy–in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race. (statutory interpretation). They also use Harris v. Forklift: when a workplace is permeated w/ discriminatory insult/intimidation, it is sufficiently severe. e. Conclusion: The court ruled in favor of Oncale. There was disparate treatment: treatment of someone when they are different–religion, color, national origin, sex, race. It is illegal in the workplace through refusal to promote, hire, terminate someone for one of these reasons. Established that SH claims can be made regardless of the gender of the harasser and victim, so long as the harassment is because of sex. 9. Vance v. ball state university (2013) Rule statement: SCOTUS established a rule that defines a “supervisor” for the purposes of title 7 workplace harassment cases. An employee is a supervisor only if he/she is empowered by the employer to take tangible employment actions against the victim for it to be vicarious liability on the company. a. Fact Pattern: The large issue is a dispute about who/what qualifies a supervisor. Vance loses at all levels up to SCOTUS, she is arguing she is being racially harassed, that is not the big issue but rather if Davis is her supervisor or co-worker. Vance is alleging Davis is her supervisor b/c Davis gives her a list of her catering duties so Vance colloquially considers her a supervisor–but a colloquial supervisor differs from a legal supervisor who has strict liability. A supervisor has the power to make tangible consequences and Vance is alleging that Davis stopped giving her a list of things to do which is tangible. Vance is suing the company on the theory that Davis was her supervisor, that is a lot more money if she beats Davis, if she simply sued Davis, it's another realm of negligence (co-worker negligence) and the university is removed. b. Issue: what constitutes a “supervisor” under title of CRA in the context of workplace harassment and vicarious liability? c. Rule: Vance lost in SCOTUS, it is a murky situation as to if Davis was ehr supervisor or co-worker. She is a supervisor to Vance but to Ball State, she is a co-worker to her. (if she is recognized as her supervisor, the court will go after Ball State, not Davis, because they hired Davis and they are superior) If it is a lateral position between 2 co-workers, BallU is not in trouble, which saves them money. There is no dispute that Davis was not racially discriminative, but whether or not she is the supervisor. d. Application: the court can either apply analytical jurisprudence or legal realism. Majority takes on analytical jurisprudence, Davis is not formally Vance’s employer, so Ball is not liable vs. dissent takes on legal realism: saying that law is a social institution built by social experiences, let's be real, if someone gives you orders to perform your job, that's the law in action. She may not be the formal supervisor, but look how clearly she serves as a supervisor in context, be real about it. The majority and dissent differ over what “tangible” means. e. Conclusion: The court held that BSU was not vicariously liable for Davis’ alleged actions b/c she couldmnt take tangible employment actions against vance. They ruled in favor of Ball State b/c Davis is not the supervisor, so Ball U is off the hook. 10. Grove city v. bell (1984) Rule statement: when students receive federally funded grants, title 9 requirements only apply to the specific program or activity that was benefited by the grants. Also, prohibiting discrimination under title 9 does not violate the 1st amendment, and the college is free to pull out of grant programs. a. Fact pattern: Grove college isn't complying with Title 9, so Congress wanted to take away the aid they were providing students via financial aid. Grove College said they were not taking any federal $ directly, it was indirect via the aid paying students tuition. b. Issue: Does title 9 violate the 1st amendment right of the college to not take or receive federal funding?Did congress intend to enforce the prohibition against discrimination based on sex under title 9 by withdrawing all federal financial assistance for any education program or activity if the aid received was “indirect” through government student loan programs rather than direct institutional assistance? c. Rule: the Dept. of Education concluded the college was a recipient of federal financial assistance b/c since it was paying for tuition, it trickled down into the school getting that money. The court majority found that the college wasn't reaching direct federal funding, the money through tuition is indirect. (this in our opinion was a misinterpretation, it eventually funded the school cause tuition funds the school). The court held that when students receive federally funded grants, title 9 requirements only apply to the specific program or activity that was benefited by the grants, so in this case, the financial aid office. d. Dissent: being real about it, the college receives money in aid from the gov through a trickle, so they should be held liable and obey title 9. e. Conclusion: The court ruled in favor of the College. Civil Rights restoration act: any college recieving federal funding must adhere to title 9 across all offices and organizations in the school. 11. Goldberg v. Kelly (1970) Rule statement: the due process clause of the 14th guarantees a recipient of government welfare benefits an evidentiary hearing before their benefits can be terminated (to ensure procedural due process) a. Fact Pattern: Kelly was an AFDC recipient under the NY state home relief program. His benefits were terminated w/o a hearing. NY state’s procedure for termination of benefits provided 1. No personal appearance before a reviewing official, no oral presentation of evidence, no opportunity for confrontation/cross-examination of adverse witnesses. NY state argued they provided a fair hearing after benefits had been terminated, the issue is timing. They lacked the notice that the benefits had been terminated–which is the main issue to be litigated. SCOTUS is concerned if this case violated the due process clause of the 14th amendment. b. Rule: the process that was due was the notification of the removal of the benefits and an opportunity to be heard–doesn't mean he would be able to keep said benefits but at least there was the summary adjudication (informally). Not providing due process could impose grievous loss, they ruled it is critical because welfare recipients rely on this money. c. Application: d. Conclusion: set precedent that states must afford public aid recipients a pre-termination evidentiary hearing before discontinuing their aid. It established the need for: 1. Timely and adequate notice, 2. Confronting adverse witnesses, 3. Oral presentation of arguments, 4. Oral presentation of evidence, 5. Cross-examination of adverse witnesses, 6. Disclosure to the claimant of opposing evidence, 7.the right to retain an attorney, 8. A determination on the record of the hearing, 9. A determination on the record of the hearing, 10. A statement of reasons for relying on evidence presented, 11. An imperial decision maker. i. These ingredients of the goldberg case helped create a balancing test. 12. Goss v. Lopez Rule statement: Public school students facing suspension are entitled to a minimum due process (including notice and a hearing) before being suspended, as protected under the 14th amendment due process clause. a. Fact Pattern: A group of high schoolers were suspended for 10 days from a public Ohio school because they were producing disorder in an anti-war protest. None of the students were given notice of this or a hearing before suspension. b. Issue: Did the students have an interest protected by the constitution (did they qualify for due process?) c. Rule: yes, they have an entitlement to public education. The suspension is seriously damaging for the student’s standing/reputation which is a “liberty” interest and could interfere with later employment/higher education +they have a freedom of speech interest. d. Application: dissent says the students have a right to notice, the response doesn't have to be a proper trial but that small engagement can settle a disagreement, so we should do the very least for them (fact check this) e. Conclusion: The court favored “Lopez” or the students which set the precedent that under Ohio law, education is a property interest protected by the 14th amendment’s due process clause and therefore, any suspension requires a notice & hearing. 13. Mathews v. Eldrige (1976) Rule statement: SCOTUS established a 3 part test to determine when due process requires a pre-termination hearing–1. Considering the private interest of the individual, 2. The risk of an erroneous deprivation under current procedures, 2. the risk of erroneous deprivation under current procedures and 3. The government’s interest in efficient administration when deciding whether procedural safeguards are necessary in administrative hearings (balancing test). a. Fact Pattern: Eldridge qualified for & received social security disability benefits, however they were terminated w/o a due process hearing. They said Eldridge had recovered sufficiently to hold a job. On appeal the federal district court and USCA held that before termination, Eldridge should be afforded an evidentiary hearing like in Goldberg v. kelly. b. Issue: Whether Eldrige was entitled to a per-termination hearing before his social security disability benefits were terminated. c. Ruling: the degree of potential deprivation that may be created by a particular decision is a factor to be considered in assessing the validity of any administrative decision-making process, but a factor that must be weighed is the fiscal and resource burden for the government to do all these hearings. d. Application: Goldberg v. Kelly as case precedent. This case set the precedent that a 3-part test to determine if an individual’s due process rights were violated during administrative proceedings: 1. private interest, 2. risk of error (likelihood of erroneous deprivation of the private interest), 3. government interest (the fiscal/administrative burdens of additional procedures.) e. Conclusion: The court held that the inital termination of Eldrige’s benefits without a hearing did not violate due process. The existing procedures were sufficent given the nature of his medical condition and the administrative burden of providing a full hesaring in every case. The court weighed the private interest against the government’s interest and found the governments interest in chefficient administration outweighed Eldridges need for a pre-termination in his particular case. Though the case established the 3 part test to provide framework for the future, when they applied to Eldridge’s specific case, he did not prevail. 14. Commonwealth v. McAfee (1871) Rule statement: Men do not have the right to kill their wife under the doctrine of chastisement.. a. Fact Pattern: a drunk husband struck his wife, she fell and died, he was indicted for manslaughter and is asking for juror instructment on the right of chastisement. The husband says, let the judge know he had a right to do what he did under the chastisement common law, to which the judge said absolutely not. b. Issue: Can a man be excused from a charge of manslaughter on the grounds he was attempting to chastise her as part of his right under common law. c. Rule: d. Conclusion: Courts repudiated chastisement. McAfee was found guilty of murder. You cant use chastisement as a defense in court, first rejection of chastisement in the court system. 15. Fulgham v. State of Alabama (1971) Rule statement: a husband has no right to inflict personal chastisement on his wife. + states cant enforce partial laws–allowing common law to some and not to others. (helped abolish chastisement). a. Fact Pattern: A husband was beating his kids, the wife tried to step in to help her kids and he beat her too. The family was all emancipated slaves and the man was convicted. b. Issue: c. Ruling: the Alabama SC did not embrace blackstone–he said chastisement was ok to a degree, here they didn't have any tolerance for it. In the ruling against the husband, we must consider the racial component, there was a lot more interest in controlling black men than there was protecting women and that “emancipated slaves are the kinds of people Blackstone was referring to.” d. Application: e. Conclusion: Case established that states can’t enforce partial laws–i.e. Allow common law to some people and not to others, the case also helped abolish chastisement. A husband cannot chastise or physically assault his wife. (you cant pick and choose) 16. US v. Morrison (2000) Rule statement: established that the remedy in the VAWA (1994) was unconstitutional b/c it exceeded the powers granted to the US congress under the commerce clause and the 14th amendment’s equal protection clause. An individual who is a victim of gender violence doesn't have the right to sue in a federal court because it violates the 14th and commerce clause. a. Fact Pattern: Brzonkala went to virginia Tech where she met 2 kids off the varsity football team, they ended up assaulting and raping her. She filed a complaint against respondents and after the hearing, the judicial committee found insufficient evidence to punish 1 of the 2 guys. The case moves up to SCOTUS. b. Issue: Does Congress have the authority to enact provision 13981 of the VAWA under the Commerce Clause or the 14th Amendment? Is it constitutional to allow victims of gender-based violence to sue their perpetrator in federal court? c. Rule: there was no question that she deserves a federal civil remedy, but it can't be sustained under the commerce clause or the due process clause of the 14th amendment. The justice system will provide her a remedy, but it must be provided by Virginia and not the US fed. It can't be backed by the commerce clause b/c that concerns economics not gender violence and it cant be backed by the 14th because due process section says “congress may enforce by appropriate legislation, the constitutional guarantee that no state shall deprive any person of life, liberty, property w/o due process of law” but Rehnquist says that in this section the legislators were referring to equality treatment of slaves, not battered women–so he narrowed down the interpretation. Court ruled that not only is this not a federal problem, it's not even a state problem, it's an individual problem–gender based violence is. The right was originally very inclusive but now it is removed and people have to go backwards. d. Conclusion: The US lost this case (??) this case removed the heart of the VAWA, it took away 13891 provision and the 14rth amendment by saying it's a private/personal matter. It makes us question how this reasoning is any different than chastisement validations. Case also removed the federal right to be free of gender motivated violence–if you were in a relationship or not–this line was the heart of VAWA. it removed the fuzziness of the lines between private and public relationships, it called for the removal of violence all together. 17. Reed v. reed (1971) Rule statement: the equal protection clause of the 14th amendment prohibits differential treatment based on sex. (1st time the court struck down a law explicitly for gender discrimination) a. Fact Pattern: Richard leed, a minor, died without a will. His adoptive parents separated before his death. His mother sally reed, filed a petition to the probate court to be appointed administratrix of her son’s estate. The divorced parents of the dead kid are having a contest as to who will be the probate. An Idaho code gave preference to males over females, so the probate court appointed the father as the administrator. During the appeal process of the probate court’s decision, Idaho state supreme court upheld the constitutionality of the stature that prefers dads over moms. b. Issue: Is the Idaho Law violating the equal protection clause of the 14th amendment? Can gender alone be the sole determining factor when appointing an estate administrator? c. Rule: SCOTUS’s disagrees, they apply intermediate scrutiny (?). The issue is if the Idaho probat4e code is constitituional since it provides different treatment on the basis of sex. the preference must be reasonable, not arbitrary. Court finds it violates the 14th amendment’s equal protection clause so its constitutional and is differential treatment. RBG also says Sally Reed’s “property” is being deprived w/o due process, the process being the probate court. The decision must be reasonable, not arbitrary and rest upon some ground of difference having a fair and substantial relation to the object of legislation–in this case, Idaho only chose men over women so they could get rid of the administrative burden. d. Conclusion: SCOTUS ruled that to give a mandatory preference to members of one sex over another is an arbitrary legislative choice forbidden under the 14th amendment protection clause. First time court used equal protection for women to strike down a law that discriminated against women. 18. Frontiero v. Richardson (1973) Rule statement:A law is unconstitutional if it gives benefits to the spouses of only male but not female service members. Benefits given out by the military cant be given out differently on the basis of sex. a. Fact pattern: the federal statute prohibits a woman employed in the air force from declaring her husband as a “dependent” unless he depends on his wife for over half of his support. However, the statute doesn't prohibit a man employed in the air force from declaring his wife a dependent no matter how much she depends on him. Originally, the idea was made with the idea that only men serve in the force. b. Issue: Is the law that makes female force members prove spouse dependency unconstitutional sex discrimination under the due process clause? Is this differential treatment on a protected characteristic constitutional? c. Rule: The court used strict scrutiny and ruled this differential treatment is an unconstitutional discrimination against women–violates equal protection clause in 14th and they are depriving women of property w/o due process. Also, the 5th amendment was violated, it concerns the US/federal gov NOT the states. The dependent benefits must be uniform in the service. The district court says that since 99% of the service is male, this differential treatment will lead to savings in administrative expenses/manpower. But SCOTUS disagrees, you can't punish people for things they can't control– (CRA). Sex is different from other non suspect statutes like intelligence/disability bc w/ sex, there is no relationship to ability or preformance. d. Dissent:SCOTUS shoudlnt have used strict scrutiny, only rational basis. e. Application: the district court used the ‘administrative burden’ excuse we saw in reed v. reed. f. Conclusion: Frontiero won, benefits given out by the military cant be given differently on the basis of sex. 19. Ledbetter v. goodyear tire & rubber Co. (2007) Rule statement: a title 7 pay discrimination claim cannot be based on any pay decision that occurred prior to the last pay decision that affected the employee’s pay during the EEOC charging period. a. Fact Pattern: Ledbetter was 1 of few female supervisors at the goodyear tire and rubber plant in AL. Employees were given or denied raises based on performance evaluations. She faced SH at the plant and was told by her boss that he didnt think women should be working there. She was involuntarily transferred to a less desirable job on the production floor. She didn't know she was the subject of pay discrimination until she received an anonymous note revealing the salaries of 3 other male managers–she was making 29% less. Ledbetter submitted a formal EEOC charge in July 1998. After she retired, she filed suit, asserting among other things, a sex discrimination claim under title 7. She went through this process of going to the agency while still employed but she filed suit after she retired which is the main issue in this case–she waited more than 180 days to bring for her Title 7 claim. b. Issue: Can an employee allege pay discrimination on the basis of sex under title 7 when the disparate pay is reported outside the time limitation? c. Ruling: US district court: applied the rational relationship test (they arent scrutinizing conditions but going along with them) and ruled that despite goodyear maintaining the evaluations were non-discriminatory however ruled in favor of Ledbetter and awarded her 3 million, reduced to 300k due to title 7 damages cap. Then, Court of appeals, switched up, they sided with Goodyear who argued Lilly's pay discrimination was “time-barred”--a title 7 pay discrimination claim cannot be based on alleged discrimination events after the last pay decision, after she retired. The period for filing an EEOC charge begins when the act occurs”. SCOTUS agrees, there is a time constraint. d. Dissent: RBG, This is not fair because she had no idea she was being paid less, she is not alleging she is being discriminated against at work due to treatment but a culmination of pay amounts. She has no transparency on pay amounts, she was isolated as one of few women. Says the court overlooks common characteristics of pay discrimination. The disparities often occur in small increments causing suspicion of discrimination at work, but this develops only over time. Comprehensive pay info is often hidden from the employee’s view. The issue mounted with time passage and the differential pay growing wider, it didn't happen overnight and that needs to be taken into consideration to understand the 180 day time-bar is unfair. RBG is using strict scrutiny, she is contextualizing the issue, Title 7 is not once discussed in the majority opinion which is concerning, Goodyear clearly broke title 7 and thats the top issue, you cant enforce CRA if the 180 day time barre is your top priority. Dissent prioritizes CRA and constitution majority prioritizes the rules of the company policy. e. Conclusion: SCOTUS ruled with Goodyear, since she didnt file in time, her claim is disregarded. Later, The Lilly Ledbetter Fair Pay Act of 2009 (signed by obama into law, enables individuals to challenge continuing pay discrimination, with attention to emphasizing that employees are not penalized if they aren't initially unaware of the discrimination) bc if you don't know you are being discriminated against, how could you raise a case. 20. Gaylord v. Tacoma School District (1977) Rule statement: a school board can terminate a teacher if they believe the teacher’s ability to perform their job is impaired. (homosexuality could be a sufficient cause for discharge if it impaired their academic efficiency). a. Fact Pattern: A former Wilson high school student told the Tacoma HS’s vice principal he thought Gaylord was a homosexual. Gaylord knew of his homosexuality for 20 years prior to the trial, he actively sought homosexual company and participated in homosexual acts. He believed if it was known he was a homosexual, it would jeopardize his employment/damage reputation. The VP confronted Gaylord at his home on the same day w/ a written copy of the student’s statement. Gaylord admitted he was gay and attempted the VP to drop it, but was unsuccessful. The Board of Directors of the Tacoma School Board notifies Gaylord they have found probable cause for discharging him due to his status as a publicly known homosexual. (he is not breaking the law, there is no anti-homo law in WA, but the norm, since homophobic people worried he would corrupt schools) b. Issue: Is Gaylord is guilty of immorality? Was Gaylord’s homosexuality a sufficient cause for his discharge? c. Rule: the standard of evidence the court applied was “substantial evidence”, supporting the finding that Gaylord was discharged for “sufficient cause” Substantial evidence is in the realm of the “rational basis test”, strict scrutiny did not apply because this is just a norm he broke. Since Gaylord sought no psychiatric help/desire to change, he made a voluntary choice for which he must be held morally responsible. The court is prosecuting compliance with a norm not a law–it's fuzzy, he is guilty in a social sense, not legal. Gaylord broke the school board's policy by pursuing “immorality” affecting his fitness to teach. d. Application: the WA supreme court turned to the new catholic encyclopedia, the encyclopedia of human behavior, Webster's dictionary. The dissenters disagree because there was no evidence of him participating in acts of being a homosexual, just speculation and status which is not enough to draw these conclusions. (he was discharged with no sufficient cause, the school district had the burden of proof and they did not have evidence of his homosexuality outright) e. Conclusion: Tacoma School District won, Gaylord was guilty with no firm laws, just norms of who is considered dangerous. Also note, the state repealed the criminal sodomy statute after his discharge, so sodomy was no longer a crime. 21. Bowers v. Hardwick (1986) Rule statement: the constitution doesn't provide a fundamental right to privacy for consensual homosexual sexual activity, meaning states could criminalize such acts, effectively establishing that a person doesn't have a constitutional right to engage in private, consensual homosexual sex. (the constitution doesn't protect the right of gay adults to engage in private, consensual sodomy) (eventually overturned by lawrence) a. Fact Pattern: in 1982, a police officer went to Hardwick’s home to serve a warrant for failure to pay a fine for public drunkenness, he saw Hardwick and another man engaging in oral sex, they were both arrested for sodomy, a crime in Georgia criminal law. Court’s issue: Does the constitution give rights to homosexuals engaged in sodomy? b. Rule: the USCA held that the Georgia statute violated Hardwick’s fundamental rights in the 9th and 14th amendments. The Supreme Court disagrees–their issue differs. Sodomy being ok or not ok is not an issue in this wheelhouse, it's not wise, said and done. The issue is the constitution doesn't address rights for homosexuality/sodomy, USCA made a case for it by interpreting the constitution. The majority disagrees with USCA’s claim that there is a right to privacy that extends to homosexual sodomy. Privacy is protected under ‘liberty’ in the due process clause, but the majority says you only get privacy over your thoughts (liberty), but this is behavior. (note this case contains a statute vs. gaylord who was battling a norm–a “norm” distances the court from having a hand in it. Also that was homosexuality, this is sodomy (behavior vs. engagement) which has always been forbidden (in common law, and original 13 colonies) so the court doesn't want to go against a forever norm, its rooted in national history/tradition, they can't be the ones to change ancient values against sodomy/homosexuality. Not saying the values are “right” but they don't want to change it, it shifts responsibility off the court. c. Application: the dissent built on the right to privacy, privacy was abridged when the police officer was led into his home. Ancient norms against homosexuality are set off b/c of the doctrine of the right to privacy. d. Conclusion: Ruled in favor of Bowers, court ruled the Georgia Sodomy law was constitutional. The right to “think” homosexually is protected by liberty, but right to sodomy isn’t protected, not in the nations history or constitution so its not a fundamental right. 22. Lawrence v. Texas (2003) Rule statement: the supreme court established that the constitution protects the right of consenting adults to engage in private, intimate sexual conduct, regardless of their sexual orientation, under the due process clause of the 14th amendment, effectively striking down laws criminalizing homosexual sex between consenting adults in the privacy of their homes. (invalidated sodomy law across the US, making same-sex sexual activity legal in every state and US territory) a. Issue: Houston TX police responded to a reported weapons disturbance and entered Lawrence’s apartment: saw him and another man engaging in a sexual act. Lawrence and his partner were arrested and convicted of “deviate sexual intercourse”, violating the TX “homosexual conduct law”--criminalizes intimacy between same-sex couples. (actual law broken, unlike gaylord) the statute defines deviate sex intercourse as contact of genitals, mouth, anus, etc. (This case and Hardwick both involve someone stumbling onto the scene.) This is also an issue of conduct, not just being gay–unlike Gaylord. Is this criminal conviction a violation of the 14th amendment Equal Protection/Due Process clause? b. Rule: Court applies the rational basis test for review. The majority talks not about the case facts, but go back to the beginning of court cases in this area and builds for a historical viewpoint of how this field has grown. The court wants to strike down the Texas statue on the reasoning that 1. It violated the 14th’s “Liberty” rights. The court also applies Griswold v. CO to disucuss the right to privacy, decisions you make in your life are private and not the states/courts. The court looks at tradition or “ancient roots” which the court dispels, there is no basis for the myth of these ancient roots in homosexuality. The court also says, equal treatment and due process rights demand respect for individual’s conduct protected by liberty. Time blinds truths, and these laws that once seemed necessary are now only oppressing people. c. Application: the court looks at Griswold v. Connecticut: use of contraceptives is protected by the “right to privacy”, but the constitution doesn't involve this “right to privacy”. But decisions as important to having a life of one's old w/o a child is a private decision not the state’s/federal courts. Also they use SCOTUS's invalidation of a NY statute that forbidden the sale of contraceptive devices to people under 16. THe cour used Bowers on the same inquiry of “reach of liberty”, the relationship was a protected liberty and they had the right to make the choice. d. Dissent: Stare decisis, compares roe v. wade’s use of stare decisis, notes if all sodomy laws are overturned, other laws will have to be looked over as well which is annoying. e. Conclusion: applying Bowers v. Hardwick, District Court rules against Texas and invalidates all sodomy laws across the states, makes same-sex activity legal, overturned Bowers. 23. Goodridge v. Dept. Public Health (2003) Rule statement: excluding same-sex couples from marriage violates the state constitution, essentially establishing that same-sex couples have the right to marry under the law, marking the first time a state’s highest court recognized this right nationwide. a. Issue: appellants are a group of 14 individuals who were denied marriage licenses in Massachusetts bc MA laws did not permit same-sex couples to marry. The appellants challenged this law as a violation of the MA constitution that 1. guarantees citizens freedom from unwarranted government intrusion into protected areas of life and freedom to partake in state benefits. b. Rule: The MA supreme judicial court applied a “rational basis test” which only requires that the government needs to show that same-sex marriage is rationally related to serving a legitimate state interest. MA’s “interest” was that hetero-marriage provides for a “favorable setting for procreation”. The court found that procreation wasn't a necessary interest of civil marriage, same-sex couples “reproduce” too and procreation isn’t a necessary byproduct of procreation. MA also “legitimizes” it by saying the policy preserves state and private financial resources by allocating funds to only marriages between a man and a woman (saving money). The court rejects this, MA dept. Of health cant presume same-sex couples are financially independent. c. Dissent: it isn’t differential treatment bc the sexes are treated the same and doesn't discriminate on basis of sexual orientation bc these protections are for individuals not couples, doesn't stop gay people from marriage, just same-sex marriage. Dissent also says you cant use loving v. virginia as precedent bc in that case, there was no compelling state interest, heterosexualoity is also rooted in the nation’s history, its not a fundamental right recognized by the constitution. d. Conclusion: Gooridge won and the court overturns MA and legalizes gay marriage in MA. 24. Masterpiece cakeshop LTD, v. Colorado Civil Rights Commission (2018) Rule statement: the court ruled that the Colorado civil rights commission’s actions violated the free exercise clause of the 1st amendment. (commission did not act w/ religious neutrality) a. Issue: Craig and Mullins (gay couple) sought to purchase a wedding cake from Masterpiece cakes. The owner (Phillips) refused, claiming he could, based on his “free exercise of religion” and “free speech” rights under the 1st amendment. He is going to the constitution to protect himself. (he practices christianity and same-sex couples are not permitted, his cakes are expressive of his art and does it for god and making a same-sex marriage cake goes against what god wants for him. The couple filed a complaint against Phillips saying that the Colorado anti-discrimination Act (CADA) prohibits discrimination against customers on their sexuality. Phillips alleged the CCRC favored pro-gay bakers when CCRC didnt sanction 3 bakers who refused to decorate cakes with anti-gay phrases b/c they were offensive and conflict with the CADA, phillips alleges the CADA violated religious neutrality when it “disparaged” his religious beliefs during the hearing. Phillips is using the precedent that in the past, CCRC wouldnt sanction a baker for not writing biblical verses/anti gay phrases so they should be able to do that the other way around– (the people who wanted anti-gay cakes were treated differently than those who want pro-gay cakes. Philips also is not outright discriminating– he is not anti-gay, he is pro-christian. b. Rule: The court didn’t rule on whether mr. Phillips justification for refusal to bake was/wasn't constitutional under 1st amendment but rather that anti-religious decisions made by the CCRC violated CCRCs duty to uphold religious neutrality. Phillip’s views also need respect, otherwise its disparate treatment. His religious beliefs are entitled to no less respectful treatment than the baker’s secular beliefs in the precedent case. Gorsuch: the problem is that the constitution doesn't play w/ the level of generality like the precedent case. NO matter the beliefs, the court has to apply case 1 to case 2. The court uses strict scrutiny bc a law cant take away a fundamendtal right (freedom of speech) unless it passes that high a test. c. dissent: RBG + sotomayor–the 2 cases are not comparable. The bakers would have refused to make a cake with anti-gay phrases (precedent) for any customer regardless of his/her religion. This case, Phillips wouldn't sell to Craig and Mullins for no reason other than their sexual orientation. d. Conclusion: The bakeship wins, because the commission violated religious neutrality and philips has a right to free speech/exercise of religion. 25. Muller v. oregon (1908) Rule statement: established rule that states could constitutionally limit the working hours of women, based on the idea that protecting women’s health as potential mothers justified different labor regulations based on sex, upholding Oregon's law that restricts a woman’s workday to 10 hours. a. Issue: the owner of the grand laundry, Muller, violated the state’s 1903 statute that prohibits women from employment “in any mechanical establishment or factory or laundry in Oregon for more than 10 hours per day. Muller was tried & convicted of violating this law & fined $10. b. Rule: the Oregon supreme court affirmed his conviction, muller appealed to SCOTUS with the argument that his 14th amendment due process rights were violated. Muller argues that the statute interfered with his “freedom of contract”--he believes that the guarantee in the 14th amendment should trump this Oregon statute that caps the workday for women. He thinks the work time cap is restraining his contract w/hiring people. Muller is thinking the freedom of contract is not a mutual agreement, he is “the boss” making the contract and can do whatever he wants to do, he thinks it doesn't give the employee discretion, he has the right to dictate his contract. He also thinks it isn’t a valid exercise of the police powers (where states develop the power to put limits on “how late a park will stay open” for example, and the state is policing its jurisdictions. The court says there needs to be a difference in legislation to compensate for the burdens on women (needing to reproduce, women need to be protected from doing this kind of work b/c they are weak and so they need to stay home to take care of domestic duties) (this case has irony b/c its moving forward about women workplace treatment but its based on the understanding that women need to be limited in work time so they can stay home b/c they are weak) The court is applying the rational basis test for the state law and upholds the work hour limit in Ohio. c. Conclusion: Oregon won, the court upheld its law that limits the workday for females to 10 hours. 26. Griswold v. Connecticut (1965) Rule statement: the court identified a constitutionally protected right to privacy (marital privacy is within the penumbra of guarantees of the bill of rights), which the court reasoned prohibited states from denying birth control to married couples. (constitutional right to privacy and right of married couples to use contraceptives) a. Issue: a Connecticut statute (1879) made it a crime for any person to use any drug, medical article, or instrument for the purpose of preventing conception. Griswold was the head of planned parenthood in connecticut. b. Rule: there is a wide range of questions concerning the due process clause (14th). The court examines relevant rights guaranteed by the “implied powers” clause in the US constitution clause in the US constitution. It's not about “life, liberty, property” it's about the process. So Griswold is raising the issue that there was no due process in taking away birth control, it's just a flat out ban on contraceptives. The liberty interest is very important, there is choice here. The choice cant be taken away w/o due process. Also, there has been a challenge to the law saying “these things can't be distributed’--griswold is saying these things need to be distributed b/c women who don't want to be pregnant all the time, these women have liberty to not be breeders, they need autonomy which is a feature of liberty interest and you can't deny a liberty interest w/o having due process. c. Application: dissent (black & Stewart): criticizing the 9th amendment for lacking articulation, yes, you could say that is true but the whole point of the 9th amendment was to leave it as space for things that previous bill of rights did not include, which makes a compelling argument for privacy. Dissent interprets the 9th by saying it lets unelected justices make judgements on good vs bad, not constitutional/unconstitutional. Black is saying it is not the courts issue, but the legislators (because they were elected) so it is a democratic decision. d. Griswold won against connectifuct, the constitution does provide right of marital privacy because it is within the penumbra of specific guarantees of he bill of rights. 27. Roe v. Wade (1973) Rule statement: a woman's right to privacy under the 14th amendments due process clause protects her right to have an abortion. The government can't completely prohibit abortion access, yet this right is not absolute and needs to be balanced against the state’s interest in protecting the health of the mother and the potential life of the fetus, which established a trimester framework to regulate abortion access at different stages of pregnancy. a. Issue: a person given the name “jane roe” challenged the constitutionality of a TX law prohibiting abortions except when it was necessary to save the life of the mother. b. Rule: the court uses many legal reasonings to set up the trimester guidelines. Anti-abortion statutes aren't an old idea we are now trying to change, it's been around. The court looks to 5 sources for a historical context to interpret legal attitudes toward abortion to apply now. 1. Ancient attitudes–mixed position on abortion based on ancient practices, 2. Hippocratic oath: the ethical guide of the medical profession says “i won't give a woman an abortion” bc its unethical. 3, the common law: abortions performed before “quickening” when the fetus starts moving around, wasn't an offense. 4. English statutory law: 1803 England's 1st criminal abortion statute was established in 1967, when physicians were allowed to terminate a pregnancy if they determined that the abortion is necessary to save the life/health of the woman. 5, American law: 1828 NY state legislation distinguished between before and after quickening only in terms of the offense, before is a misdemeanor and after is 2nd degree manslaughter + it established the need for therapeutic abortion as necessary to preserve the life of the mother. After looking at these 5 sources for historical context, blackmun concludes that women “enjoyed the opportunity to make this choice” earlier in our history (particularly in the pre-quickening stage). Blackmun also raises a 3rd issue: the right to privacy–the guarantee of personal privacy has the right to extension to activities related to child rearing. Is this right absolute? Is a fetus a person who gets 14th amendment rights? TX says life begins at conception and because of this, they have a compelling interest in protecting that life from/after conception. The state’s compelling state interest standard is its duty to protect the fetus’ life. The compelling point is at viability because then, the fetus presumably has the capability of meaningful life outside the mothers womb.State regulation protecting fetal life post viability is logical/biologically justified for their interest in protecting fetal life. i. A criminal state abortion statute that only doesn't criminalize you if it's a lifesaving procedure for the mother (without regard to pregnancy stage and other interests) is violative of the due process clause 14th amendment. ii. Rule: also established the 3 trimester criteria: just before the end of the 1st trimester, the decision for an abortion is left to the medical judgement of the pregnant woman’s physician. In the 2nd trimester, the state may regulate the abortion procedure in ways that are reasonably related to the mother/maternal health. (a fetus may not be healthy/a mother may be unable to carry the baby) so the life of the mother is still considered at the 2nd stage. In the 3rd stage (subsequent to viability), the state is promoting its interest in the potentiality of human life, so it may regulate and forbid an abortion with the only exception being to save the life of the mother. (abortion is not allowed in the 3rd stage) C. Application: dissent (rehnquist)--has trouble concluding the right to privacy is involved in this case, the performance of an abortion is not private nor is the ‘privacy’ the court finds here is a “distant relative of the freedom forms searches and seizures protected by the 4th amendment”. –he says abortion is not privacy since its transactional between a doctor and a woman and the decision to break pregnancy into 3 terms and outline when the state can step in on each one is lots of judicial legislation, he thinks the justices are stepping out of line. D. Conclusion: Roe won the case, the texas abortion ban was unconstitutional bc the due process clause of the 14th protects a woman’s right to choose an abortion before viability, the court created a framework–the trimesters–to balance state’s interests with privacy rights. The trimester system defines the point of viability as the beginning of the 3rd trimester, so then a state can more significantly regulate/restrict abortions except in the case of the mothers health/life being at risk. 28. Planned Parenthood v. Casey (1992) Rule statement: restrictions on an abortion are unconstitutional if they place an undue burden on a person seeking an abortion before the fetus is viable. established the “undue burden” standard. Reaffirmed the core right to abortion established in roe v. wade, while allowing for some state restrictions on abortion access. a. Issue: this case concerned a PA abortion statute requiring that 1. Women are informed by doctors about fetal development 2. Women give consent, and minors need parental permission 3. Women wait at least 24 hours after giving consent (so she can live with her decision, a form of deterrent, lowkey deprivation of her rights rooted in misogyny.) 4. Married women had to notify their husbands and get permission from them to have an abortion. 5. Doctors must follow specific reporting and public disclosure requirements. - Upon seeing this, planned parenthood of PA and other abortion clinics immediately challenged the constitutionality of this law. The USCA 3rd circuit court upheld all but 1 provision–the telling husbands one, and both sides appealed back to this. b. Rule: liberty finds no refuge in a jurisprudence of doubt–if you don't support liberty, then you shouldn't have doubts about it. In this SCOTUS case, they reject Roe’s trimester framework bc liberty cant have parameters/doubt if its true liberty and rather say the line should be drawn at viability, not trimesters. They also think the trimester system places an undue burden on the woman. They then follow precedent, adhere to stare decisis and judicial restraint - They criticize roe, concluding the claims of a woman to retain ultimate control over her body claims implicit in the meaning of liberty. It falls to the court to give real substance to the woman’s liberty to determine to carry her pregnancy full time. - This court does not focus on the privacy of fetal development (like Roe) but instead focuses on a woman’s liberty to determine for herself what she wants. (come up with 1 standard rather than using a developmental framework-trimester system, being viability) so they can set a standard for abortion as a whole. The state steps in at viability in roe to protect the fetus but before the woman gets to choose, but even then that doesn't mean the state is prohibited from making sure her choice is informed, they are free to enact laws that provide the framework to aid her big decision. (consistent w/ roe that the state has an interest in protecting the life of the unborn) - The court strikes down on PA provision requiring a “married woman to provide a signed statement that she notified her spouse about the abortion. c. Conclusion: Planned Parenthood won because the restrictions on abortion are constitutional if they place an undue burden on a person seeking an abortion before the fetus is viable. (The case established the Undue Burden standard/test) 29. Whole Woman’s Health v. Hellerstedt (2016) Rule statement: state laws imposing restrictions on abortion access that create an “undue burden” on women seeking abortions are unconstitutional, essentially meaning that abortion regulations can't place a substantial obstacle in the path of a woman seeking an abortion, striking down texas laws requiring abortion providers to have admitting privileges at local hospitals and that abortion clinics meet ambulatory surgical center standards. a. Issue: gynecology and abortion clinics throughout cities in TX challenge a TX law requiring that all physicians who perform abortions have 1. “admitting privileges” at a hospital within 30 minutes from where the procedure is performed. (this limits physicians if they don't have the privileges to the hospital from providing abortion services in the hospital. + for most people there is not a hospital 30 min away with an abortion center, so it's a burden for them. Plus, 2. The surgical centers located in the abortion facilities meet the same standard as required for ambulatory surgical centers in TX. This is limiting, physicians and women have to jump through many loops and TX is huge–only at surgical centers where the doctor has privileges within 30 miles of the procedure can abortions take place.The abortion clinics argue these requirements imposed a “substantial burden” on the right to decide to have an abortion. This law reduces the # of physicians who could be providing abortion services bc they lack these admitting privileges (de-incentivizing doctors to do abortions b/c of the requirements) b. Rule: the court declared that the “admitting privileges” and the “surgical-center requirements” were unconstitutional b/c the texas law unduly burdened the abortion choice for women. The majority argues there is no evidence these “admitting privilege” requirements have anything to do with health related benefits, it even goes against it in terms of access. TX couldnt prove a rational relationship test between this law and a state interest, it serves no legit state interest, so the majority ruled this as common sense, you can't do these regulations when medically, people will need abortions, and TX cant prove a good reason for the law. c. Dissent: (Thomas) is speculative if there is an undue burden on a woman’s access to abortion in this law, he mulls it over based on “tiers of scrutiny”. He thinks the tiers of scrutiny tests are made up and not constitutional, they are random and the judges themselves get to pick which test they apply which makes them even more wishy-washy. d. Conclusion: The TX law was ruled as unconstitutional b/c it placed an “undue burden’ on women seeking an abortion, effectively restricting abortion access in the state. The case reaffirms a woman’s right to access a legal abortion. 30. Box (indiana dept. health) v. Planned Parenthood of Indiana and Kentucky (2019) per curiam Rule statement: the court upheld an Indiana law relating to the disposition of fetal remains as rationally related to a legitimate state interest. a. Fact pattern: Indiana’s petition for cert argues the US court of Appeals (7th circuit) incorrectly invalidated 2 new provisions of the indiana law being: 1. Relating to the “disposal of fetal remains by abortion providers” and 2. “Barring the knowing provision of sex, race, or disability-selective abortions by abortion providers. b. Issue: May a state barre the knowledge of the sex, race, or disability of the aborted fetus? Is regulating the disposal of the fetus rationally related to a legitimate state interest? c. Rule: The majority reverses the appellate court with respect to the 1st question: Indiana’s upset fetal remains are being thrown away with medical waste, which is disrespectful, (alters the manner in which abortion providers may dispose of the remains, b/c it doesn't place an undue burden on the woman’s right to obtain an abortion or infrine on a fundamental right), Indiana also wants the information of the sex, race, disability of the fetus provided to them. The 7th circuit invalidated these 2 provisions (saying there is no state interest in the way the remains are thrown away), so Indiana is bringing it to SCOTUS to try to bring it back. d. Application: Thomas Concurrence: His concurrence concerns the 2nd provision, that SCOTUS shot down, he wants it to remain so the state can enhance eugenic movements. He is saying people may treat boy fetuses better than girl fetuses or treat black fetuses worse than white ones. He says the controversy over the case in Indiana is an example of eugenics when you throw the remains out, he says we must pay attention to the sex, race, disability of the fetuses to see if people are being racist, abilest, sexist. e. Conclusion: Dobbs v. Jackson Women’s Health Organization (2022) Rule statement: established that the constitution doesn't confer a right to an abortion and the authority to regulate abortion is returned to the people and their elected representatives i.e. the state. a. Issue: Jackson women’s health organization operated the only clinic that provided abortion services in Mississippi. In 2018, the Mississippi state legislature passed the “Mississippi gestational age act” which forbids all abortions after the first 15 weeks of pregnancy unless a medical emergency or severe fetal abnormality exists. The Jackson women's health organization immediately filed a lawsuit after the act passed against Dobbs (who is the state health officer of the Mississippi dept of health) saying the law is a violation of the constitutional right of an abortion protected by the due process clause of the 14th amendment. Court of appeals agrees but Dobbs appeals to SCOTUS. b. Rule: Alito (majority) makes 3 main points: 1. Nations history 2. Doctrine of stare decisis 3. Rational-basis review. So 1, the constitution makes no reference to abortion and no such right is protected by constitutional provisions, including the 14th amendment, which Roe + Casey depends on. The 14th has been used to guarantee rights not mentioned in the constitution, and these rights must be rooted deeply in the nation's history and implicit in the concept of liberty, something abortion isnt. 2. The doctrine of stare decisis counsels continued acceptance of roe and casey. It protects the interest of those who rely on the past decision. Roe is weak, it had no grounding in the constitution, so majority wants to upset any semblance of stare decisis in Roe/Casey. 3. The majority is using rational-basis review as a standard for challenging Roe bc since abortion rights are constitutionally fundamental, they don't need to go to heightened scrutiny. - Legal reasoning for overturning roe: 1. For 185 years post constitution, the states were permitted to address abortion issues in accordance with their citizen’s views. 2. In 1973 (Roe) the court held that its a broad right to obtain an abortion, Roe didn't claim that the american law or common law had ever recognized this right, its survey of history is constitutionally irrelevant, this is true, abortion was never established in the constitution, roe just established trimesters as forms of regulation. Roe abused legal authority and disrupted stare decisis 3. The constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision, including the 14th which Roe depends on. (majority is demanding the word abortion to be in the text for it to be protected.)--they are removing the idea that the 14th could be used to aid roe or casey or jackson for abortion rights. - ‘Liberty’ argument helped Roe, “viability” helped planned parenthood (“life” in 14th) majority is saying forget all about due process, the constitution makes no reference to abortion–”originalism” POV/stare decisis vibe–keep as intended. - Stare decisis aspect of roe doesn't compel them to adhere to roe’s abuse of judicial authority–saying roe overstepped, this is a legislature's job. (in this case the legislator is Mississippi, so we rule with them). - Also a state’s regulation of abortion is not a sex-based classification so it's not subject to heightened scrutiny. (grounds for arguing the rational relations test) - Women’s org is saying mississippi is depriving women the right to an abortion and dobbs takes down this entire framework–14th doesn't mention abortion so it's not applicable. c. Conclusion: The constitution does not confer a right to abortion, the right is not rooted in the nation’s history/tradition + stare decisis, rational-basis review, Dobbs overturns roe and casey, allowing individual states to regulate or ban abortion access within their jurisdiction (removing the federal constitutional right to abortion). California Federal Savings & Loan Association v. Guerra (?) a. Fact pattern: A receptionist at the loan association took pregnancy leave but when she notified work she was able to come back, there were no similar positions available. She filed a complaint with the Dept. of fair housing and employment which charred CFSLA with violating a provision, so before the hearing CFSLA brought action to federal court saying this provision is inconsistent with title 7…. b. Issue: Pregnancy rules often subordinated women to men, eliminated job competition, and reinforced patriarchal social structures. whether a state may require employers to provide greater pregnancy benefits than required by federal law, as well as the ability to require pregnancy benefits to women without similar benefits to men. c. Rule: the act requires employers to provide leave and reinstatement to employees disabled by pregnancy since title 7 prohibits employment discrimination on the basis of sex. Term & Reading Revision Civil Rights Act of 1964 - The act prohibits the discrimination based on race, national origin, color, sex, religion. It established the Equal Employment Opportunity Commission. Equal Employment Opportunity Commission - An administrative agency that focuses on sexual harassment (title 7). It provides guidance and authority toward employment discrimination, EEOC has guidelines: title 7 doesn't reach conduct involving personal relationships in the employment situation that don't have a discriminatory effect. It takes into account the “totality of circumstance” and the “context of the alleged conduct” as a necessary step in any analysis of sexual harassment allegations. There also needs to be a “pattern of harassment” like isolated incidents of flirtation and vulgar remarks, or a request for a date are normal interactions between the sexes and are not actionable. The EEOC also creates 2 categories of discrimination. Its framework for separating liability between supervisors and liability amongst co-workers. 1. Supervisor liability a. The strict liability standard applies to employers for the harassment acts of its supervisors regardless of whether the acts were authorized or even forbidden and regardless of whether the employer knew or should have known about the occurrence. (it's about hierarchy, the boss is liable for his employer’s harassment since their actions are a reflection of them) 2. Co-worker liability/negligence a. “Negligence” standard that can only be imposed on the employer when an employer/their supervisor knew or should have known of the conduct, unless the employer can show they took immediate/appropriate corrective action. b. The legal standard for SH w/ co-workers is to say there was negligence, which is lower than strict liability which is a greater punishment. Title 7 - Statute under CRA protects employees/job applicants from employment discrimination based on the same attributes. It is unlawful employment practice for an employer to fail/refuse to hire/discharge any individual or otherwise to discriminate against any individual w/ respect to his compensation, terms, conditions, or privileges of employment because of their race, color, religion, sex, or national origin. Equal Employment Opportunity Act - Amendment to title 7 adding the phrase “with respect to their compensation, terms, conditions, or privileges of employment…” They added that to strengthen the enforcement power of the EEOC, b/c it allows them to directly file lawsuits against employers who violate title 7. Title 9 - Part of the education amendments of 1972: prohibits sex discrimination in educational programs and activities that reieve federal financial aid. “No person in the US shall–on the basis of sex–be excluded from participating in/denied benefits of/subjected to discrimination under any education program/activity receiving federal financial assistance. (if you receive federal funding, you have to go along with federal guidelines. If the gov gives money to institutions, this allows them to regulate what universities do like comply with title 9) - Title 9’s liability standard: deliberate indifference: the conscious/reckless disregard of the consequences for one's actions or omissions. - Title 9’s standard of evidence: preponderance of evidence (civil standard) Evidence Standards 1. Preponderance of evidence: (civil standard)--requires proving it is more likely than not the reported sexual misconduct occurred. This burden of proof is met if the party with the burden convinces the fact finder that there is a greater than 50% chance the claim is true. 2. Clear and convincing: (higher civil standard)--the evidence is highly substantially more likely to be true than untrue (the evidence makes it obvious). This is used when you have a little bit of doubt, this doesn't hold on the criminal standard b/c you are going to lose your freedom/life which is heavier. 3. Beyond a reasonable doubt: (criminal standard)--there is NO doubt whatsoever, they are either 100% guilty or innocent. You need to be sure beyond a reasonable doubt in criminal cases b/c people may be getting the death sentence. Clery Act 1990 - The clery disclosure of campus security policy & campus crime statistics Act - Jeanne Clery was raped and murdered in her dorm, the development of that outrage led to the federal law that addresses what happened to her and demands campus’ keep crime statistics. - Public state/federal rights (like title 9) can invoke the clery act. The rights can also reverse discrimination under title 9 when there are false accusations or false charges being pressed. It's a formal policy/ framework with open crime data on a university. VAWA (The Violence Against Women Act) - In the 1st draft, VAWA was supposed to create federal civil rights remedies for victims of domestic violence. It would skip over the variations people get caught in at the state level and make it more universal and have heavier weight as a federal civil right. (this hasn't happened yet b/c appealing to federal courts as opposed to state courts is to escape a bias that exists in your state court) - By getting the cases to jump over state to federal would be simply the plantiff getting the case in the federal court b/c their issue is a violation of their civil rights/sex discrimination. Access to federal civil rights gives you more power if you have a case for making that basis on a federal level as opposed to a state level–you won't have to cut a pathway to make your argument. - VAWA aimed to prevent violent crime on women. Due Process - Due process of law applies to how an administrative law is carried out. In the 5th amendment it says “congress shall make no law depriving a person of life, liberty, and property” and the 14th adds they can't be deprived of that w/o due process. Due process is not applicable unless the person is deprived of something they have a right to. Mathew’s wishlist for due process requirements list details what due process needs to guarantee. Equal Protection - A governmental body may not deny anyone equal protection of its governing laws. Mathew’s 3 Prongs - This is a precedent established from Mathew v. Eldrige in which Mathew lost social security disability benefits w/o a due process hearing. This is a general approach to applying due process in any situation. 1. What right is at stake? a. When you look at the issue of due process, you want to know what right is at stake, in Mathews it was the constitution of benefits. A hearing is important b/c they need to figure out if there has been a mistake/erroneous deprivation. 2. What is the probable value of an additional procedural safeguard? a. Why not notify someone/remind them they are receiving these benefits and info has come out that they no longer need/are eligible for them? Why not have a hearing before/why does the gov get to cut off the benefits? (in this case they may be entitlements not rights in which there is no right to an attorney) 3. What administrative burden does it impose on the government/university/institution? a. Gerstman argues for applying his balancing test to determine the burden. It maintains that full participation by attorneys should be allowed in student SA hearings when there are consequences of suspension, expulsion. A sexual offense mark on a student's record. (attorneys wouldn’t be there to fend of all charges but these possible consequences are serious enough to ensure your rights be abided during the hearing, which balances interests) Gerstmann’s Balancing Test (Goldberg v. Kelly? or/and mathews v eldridge?) - The balancing test is not a compromise, it is used in a situation where both sides have opposed legitimate concerns, gerstmann says to settle the controversy, take parts of each side and weigh them equally as best as you can, but this doesn't ensure equal outcome. - The balancing test requires: 1. Timely & adequate notice 2. Confronting adverse witnesses 3. Oral presentation of evidence 4. Oral presentation of arguments 5. Cross-examination of adverse witnesses 6. Disclosure to the claimant of opposing evidence 7. The right to attain an attorney 8. A determination on the record of the hearing 9. A statement of reasons for relying on evidence presented. An impartial decision-maker. Loco Parentis - The school/uni is standing in place of the student’s parents. The student is not the first actor in the situation but it enables the university to stand in the place of the student, representing them in the process. This is an informal framework, it is more tailored to the relationship of the students/faculty to the university. Quid Pro Quo (Title 7) - If you are asked to do something outside the law but you're doing it for an economic advantage, that's a quid pro quo. - You are doing something in trade for something else, often money. In the legislature, a quid pro quo can be psychological damage as opposed to just economic damage, the pure transaction nature is what makes the companies liable. Chastisement - Common law until the 19th C: men can discipline their wives up to a certain extent. The wife is property of the husband so he is responsible for her actions so if need be, he can punish her to an extent to keep her in line. Judge Blackstone says in public, you can't chastise larger than the thumb when you conduct punitive judgement on your “property”--which limits the magnitude of husband’s force. Common Law - Inherited from England post US revolution. Our court system hasn't changed since we were under them. Common law doesn't have borders. It distinguishes between any other kind of law b/c other types are all written down. It derives from judicial precedent over and over again. 1st Wave Feminism - The roots of the American women’s movement. Ran alongside the abolitionist movement. Sisters were in full support of the crusade against slavery and thought women were also slaves, so the 2 should mobilize together for rights. The suffrage fight continued and the Grimke sisters won in 1920 w/ the 19th amendment (voting) to the constitution. 2nd Wave Feminism - Amidst civil rights struggle against Jim Crow and racial segregation, time of anti-poverty programs, labor mobilization, vietnam anti-war movement, sexual and LGBTQ movement, all mobilized rights as a political resource. 3rd Wave Feminism - #metoo, gender fluidity, human rights movement, paying attention to SA survivors on social media, Harvey Weinstein outed for SA which catapults hashtag. Difference approach - Views sex discrimination as an arbitrary distinction and favors a ‘gender-neutral norm’, its viewed as a naive approach because how can neutrality be achieved in a patriarchal society. Inequality approach - Views social differences as conditions or forces that produce social inequalities. Levels of scrutiny - The court chooses to apply a level of scrutiny when reviewing cases/decisions. 1. Strict Scrutiny a. Applies to race and fundamental rights (protected characteristics too) i. We all have protection from being discriminated against, strict scrutiny applies b/c the protection pre-exists the challenged state law. b. Requires government to prove they have a compelling state interest behind the challenged policy and that the challenged law/regulation is narrowly tailored to achieve its result. (high level of significance) 2. Intermediate Scrutiny a. To pass intermediate scrutiny the challenged law must either further an important governmental interest b. a lower burden than a compelling state interest required by strict scrutiny and also do so by means that are substantially related to that interest. 3. Rational basis Scrutiny a. The government needs to only show that the challenged classification is rationally related to seeing a legitimate state interest. It's the lowest/easiest level of scrutiny, if the court is applying this, it is not allowing the state to put forth a compelling interest, they may have a legitimate interest but it's not as important as ‘compelling’ requires. Differential treatment (standard) - An individual/employer treats groups differently based on characteristics like race, gender, age, disability or other protected attributes.(discrimination) The right to be let alone - Individual autonomy, be left alone without governmental regulation. Ex. marital privacy, like there is a right to privacy in the choice of who you marry? Intersectionality Affective privacy - When people know about your business, it's disparaging to the perpetrators image/reputation. Things that happened in privacy shouldnt be public. The idea of ‘keeping it in the family and shame, wanting to keep a family together, finances, are reasons why women who experience violence don't come forward. VAWA wanted people to come out of the shadows as the only way to challenge the norm. Siegel says it is a myth/legacy, it's tied to the world of chastisement and used as a tool to inscribe gender hierarchies even further. Couverture - Once a woman got married, she was the property of her husband, coverture validates chastisement since if a woman needed to be put in line, he could hit her since she is his property and a reflection of him. It legitimizes male and female inequality. Immorality - Referenced in Gaylord v. Tacoma School District. Immorality is used as ‘not being moral’ but what is morality? Doctrine of Stare Decisis - The idea/precedent/law/standard has been established and accepted, it's a norm you don't break from to keep everything in its place b/c it's grounded in history–the tradition OF tradition, the way it's been, it will continue to be. Doctrine of the right to privacy - Legal tradition that intends to restrain governmental and private actions that threaten the privacy of individuals. (the right of a person to be free from intrusion or publicity concerning matters of a personal nature) the right to privacy is implied by the guarantee of due process for all individuals under the 14th. Affirmative Consent Standard - Relevant to a 2014 CA legislation that said the standard for consent is it has to be (1) affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved to ensure affirmative consent of the other(s) to engage in sexual activity (2). Affirmative consent must also be ongoing throughout the activity and can be revoked at any time. (3) - Affirmative consent is only for colleges.universities - The burden of proof in this framework makes affirmative consent controversial. The burden is on the person who is accusing someone of SA, they have to prove they didn't give consent (the burden of proof) which is crazy. The accused will be guilty if they also can't prove there was affirmative consent. This is a reversal of the standard of innocence and guilt. - Gerstmann says these rules are overly broad/arbitrary b/c it doesn't correspond to how students engage in sexual contact–its not realistic. (some also say they violate due process and privacy b/c they reverse the usual standard of innocence) Unless the guy can prove his sex partner did everything in the affirmative consent contract, the burden is on him and he is presumed guilty.--how can he prove this if there was no witnesses, recordings. Gender substantive regulation - Why is affirmative consent a gender substantive regulation? Because to deviate from following affirmative consent is to be grounds for bringing a substantive regulation. We are shifting from due process to the substance that's being regulated–college students. Substantive due process - Protects individual rights against unwarranted government intrusion Undue Burden Standard - A law can't be too restrictive or burdensome on fundamental rights. It is referenced in Planned Parenthood v. Casey where the court rejects Roe's trimester framework and says there is an undue burden standard with all the requirements a woman needs to go through to get an abortion. As well as in Whole woman’s health v. Hellerstedt which argued the TX statutes placed an undue burden on women trying to get an abortion Joshua Wilson, “the New States of Abortion Politics” (2016)/ Anti-Abortion movement - 1980-1990 anti abortion movement starts with operation called “operation rescue” which aimed to bomb clinics & murder providers, very brutal “clinic-front activism” - 1990s-2009 less activism - 2009 assassination of Dr. Tiller, an abortion provider - 2015-present: “center for medical progress” circulated undercover videos claiming to show that planned parenthood was involved in the illegal sale of aborted fetus tissue which wasn’t true but PP workers were killed. + emergence of “National Personhood Alliance” which is a “christ-centered, biblically informed organization dedicated to the non-violent advancement of the recognition and protection of the gd-given, right to life of all human beings as people at every stage of their development” + 2016 Trump election. Counter-Mobilization/ + professionalization of the Anti-Abortion movement. - 2022 Dobbs decision - “The new christian right”--”Massachusetts Citizens for Life” incorporated the day after Roe was decided. (played a role in Whole woman's Health case too) Textualism - Emphasizes the original meaning of something based on the text/focusing on language. So like if abortion is not explicitly protected in the constitution text, it's going to stay that way. Originalism - As it has and always will be, judges aren't going to be the one to change rooted national history and tradition. We are going with what has been before. Legal Realism - Law is a social institution built by social experiences. Looking at how law performs in society rather than an ancient tomb of stones to make decisions. It looks at behavior and interactions that go on in real life, rather than analytical tangible definitions and facts. Analytical Jurisprudence - Follows formal, written down rules, not realistic but strict Statutory construction - Determining what a statute means so the court can apply it correctly. Readings 1. Reva Seigel: “The Rule of Love” “The Rule of Love” talks about wife beating as a prerogative and privacy. - Discusses how common law’s doctrine of coverture says a wife is absorbed/property of her husband under ‘marital union’ and allows chastisement to work. - There was a conversation happening amongst the temperance + abolitionist + women’s rights movements in the progressive era that radically rethinks the moral environment of the U.S. - The formal removal of chastisement happens in the 1870s, every judge is not appealing to chastisement, via cases like commonwealth v. McAfee & Fulgham v. State of Alabama both in 1871. Siegel is challenging the right to chastisement - Chastisement historically reflects the practice of women being dominated by men and it was tolerated until the Women’s Movement. - It points out the public vs. private dichotomy in common law/affective privacy that reinforces gender discrimination rather than protecting women from violence. - How did we get stuck here? By keeping these cases in state courts rather than giving them access to federal courts. - She wants reform against chastisement bc when there is sufficient social pressure, you see it change in the way reformers want it to. Chastisement is being protected by other principles, now women are no longer considered property but it is protected by “privacy of the household”--it substitutes 1 problematic principle for another

Gender in Law Final Exam Case Review PDF

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