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CONSTITUTIONAL LAW II

SECTION I – DUE PROCESS

Chapter 7 – The Post-Civil War Amendments and the “Incorporation” of Fundamental Rights (PG 441)

 The Bill of Rights originally guaranteed individual liberties only against the federal government
 The 14th Amendment’s Due Process Clause was later read to make applicable to state criminal proceedings virtually all of the
procedural requirements that govern federal criminal law enforcement as a result of the Bill of Rights
o The post-Civil War Amendments thus signified a major escalation in the national concern with the protection of individual
rights from state government action.

Section 1. Individual Rights Before the Civil War

 There were relatively few explicit references to individual rights in the original Constitution
o The most litigated limitation on state power was the ban on state impairment of contracts in Article I, §10
o In Barron v. Mayor and City Council of Baltimore, the Marshall Court held that the Bill of Rights restricted only the
national government, not the states.

Section 2. The Post-Civil War Amendments (PG 449)

 In 1865, the Thirteenth Amendment gave constitutional sanction to President Lincoln’s wartime Emancipation Proclamation
 The Fourteenth Amendment overruled Dred Scott, making all persons born within the United States American citizens, although it
did so without making mention or race.
 The Fifteenth Amendment was ratified two years later, in 1870, and it did speak explicitly about racial discrimination, in voting.
 The Court, however, soon gave a narrow reading to the 14th Amendment in the Slaughter-House Cases, emphasizing that the Civil
War Amendments had not been meant to expand radically the power of the Supreme Court to regulate the relationship of the states to
their own citizens

Chapter 8 – Due Process (PG 483)

 SCOTUS has held that the DP clauses of the 5th and 14th Amendments restrict the substance as well as the procedures of governmental
regulation.

Section 1. Substantive Due Process and Economic Liberties

 The natural law tradition, views a written constitution as merely reaffirming preexisting fundamental rights that are entitled to
protection whether or not they are explicitly stated in the basic document
 In Calder v. Bull (1798), the Court rejected an attack on a Connecticut legislative act setting aside a probative court decree that had
refused to approve a will
o The legislation required a new hearing; at that second hearing, the will was approved.
o The challenge to the law came from the heirs who would have taken the property if the will had been ineffective
 The Court rejected their claim that the Ex Post Facto Clause barred the CT act: that clause was construed as being
limited of criminal legislation
o Justice Chase’s most elaborately announced an inclination to invalidate legislation based on limitations not explicit in
constitutional text.
 The purposes for which men enter into society will determine the nature and terms of the social compact; and as
they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and
ends of legislative power will limit the exercise of it.
 This fundamental principle flows from the very nature of out free Republican governments, that not man
should be compelled to od what the laws do not require; nor to refrain from acts which the laws permit
 An ACT of the Legislature 9for I cannot call it a law) contrary to the great first principles of the social compact,
cannot be considered a rightful exercise of legislative authority
 It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore,
it cannot be presumed that they have done it.
 To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained;
would, in my opinion, be a political hersay, altogether inadmissible in our free republican governments.
o Justice Iredell’s opinion challenged Chase’s nature law approach:
 Some speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot
think that under a constitutional scheme allocating powers without explicit limitations, any Court of Justice would
possess a power to declare it so.
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 If any act of Congress, or of the Legislature of a state, violates Constitutional provisions, it is
unquestionably void.
 If, on the other hand, the Legislature of the Union, or any state, shall pass a law, within the general scope
of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their
judgment, contrary to the principles of natural justice.
 IN the early years of the Marshall Court, there ere occasional echoes of Chase’s natural law approach
o In Fletcher v. Peck (1810), Chief Justice Marshall offered alternative routes for invalidating a Georgia effort to revoke a land
grant “either by general principles which are common to out free institutions, or by the particular provisions of the
constitution of the US.”
 The growth of industrialization and corporate power in the post-Civil War years stirred popular demands for legislative responses
o Soon substantive due process began to surface in majority opinions
 In Munn v. Illinois (1877), the Court rejected an attack on a state law regulating the rates of grain elevators.
o Chief Justice Waite emphasized that the police power included regulation of individual use of property that was “affected
with a public interest,” and found regulation of grain storage to fit that category because storage monopolies, like utilities,
could exact monopoly prices.
 Chicago, M. & St. P Ry. Co. v. Minnesota (1890), was a significant turning point.
o That decision invalidated a state law authorizing administrative ratemaking without providing for judicial review.
o The majority explanation suggested concern with substance as well as procedure: reasonableness of rates was found to be
“eminently a question for judicial investigation”; depriving the railroad of the power to charge reasonable rates by
administrative order would be, “in substance and effect,” a deprivation of property without due process of law.
 Substantive due process soon ranged beyond rate regulation to encompass a wide variety of exercises of state police power.
o Mulger v. Kansas (1887), sustained a law prohibiting intoxicating beverages
 The first Justice Harlan stated that not “every statute enacted ostensibly for the promotion” of “the public morals, the
public health, or the public safety” would be accepted “as a legitimate exertion of the police powers of the State.”
 Accordingly, if a purported exercise of the police power “has no real or substantial relation to those objects, or is a
palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge.”
o 10 years later in Allegeyer v. Louisiana (1897), for the first time, the Court invalidated a state law on substantive due
process grounds.
 Allegeyer involved a Louisiana law that prohibited obtaining insurance on Louisiana property “from any marine
insurance company which has not complied in all respects” with Louisiana law.
 The Court reversed, holding the statute in violation of the 14 th Amendment “in that it deprives the defendants of
their liberty without due process of law.”

Lochner v. New York – SCOTUS – 1905 (Justice Peckham) (PG 487)

Facts
 Lochner was convicted and fined for permitting an employee to work in his Utica, NY bakery for more than 60 hours in one week, or
more than 10 hours in one day, in violation of a state maximum hours law.
Issue
 Does this law unconstitutionally burden a baker’s right to contract with employees in violation of the 14 th Amendment’s Due Process
Clause?
Reasoning
 The right to purchase or to sell labor is part of the liberty protected by this amendment
o There are however, state police powers relating to the safety, health, morals and general welfare of the public
o When the state legislature passed an act which seriously limits the right to labor or the right of contract, it becomes of great
importance to determine which shall prevail – the right of the individual to labor for such time as he may choose, or the right
of the State to prevent the individual from laboring beyond a certain time prescribed by the State
 It was held in Holden v. Hardy, that the kind of employment, mining, smelting, etc., and the character of the employee in such kinds
of labor, were such as to make it reasonable and proper for the State to interfere to prevent the employees from being constrained by
the rules laid down by the proprietors in regard to labor.
o There is nothing in Holden v. Hardy which covers the case now before us.
 It must, of course, be conceded that there is a limit to the valid exercise of the police power
o In every case that comes before this court, therefore, the question necessarily arises: Is this a fair, reasonable and appropriate
exercise of the police power, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to
his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for
the support of himself and his family?
 There is no reasonable ground for interfering with the liberty of person or the right to free contract, by determining the hours of labor,
in the occupation of a baker.
o We think that a law like this one before us involves neither the safety, the morals nor the welfare of the public, and that the
interest of the public is not in the slightest degree affected by such an act.
o Clean and wholesome bread does not depend upon whether the baker works but 10 hours per day or only sixty hours a week
 The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate
 We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would
authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as
employer or employee
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o There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant
legislative interference with liberty.
 It is also urged that it is to the interest of the State that its population should be strong and robust.
o If this be a valid argument and a justification for his kind of legislation, it follows that the prosecution of the Federal
Constitution from undue inference with liberty of person and freedom of contract is visionary, wherever the law is sought to
be justified as a valid exercise of the police power
 The act is not, within any fair meaning of the term, a health law, but is an illegal interference with the rights of
individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think
best, or which they may agree upon with the other parties to such contracts
 It was further urged that restricting the hours of labor in the case of bankers was valid because it tended to cleanliness on the part of
the workers
o The connection, if any exists, is too shadowy and thin to build any argument for the interference of the legislature.
 The purpose of a statute must be determined from the natural and legal effect of the language employed; and whether it is or is not
repugnant to the Constitution must be determined from the natural effect of such statutes when put into operation, and not from their
proclaimed purpose
o It is manifest to us that the law here has no such direct relation to and no such substantial effect upon the health of the
employee as to justify us un regarding the section as really a health law.
Holding
 Under such circumstances the freedom of master and employee to contract with each other in relation to their employment cannot be
prohibited or interfered with, without violating the Federal Constitution.
Dissent (Justice Harlan, White and Day)
 It is plain that this statute was enacted in order to protect the physical well-being of those who work in bakery establishments
 The statute must be taken as expressing the belief of the people of NY that, as a general rule, and in the case of the average man, labor
in excess of sixty hours during a week in such establishments may endanger the health of those who thus labor
o The courts are not concerned with the wisdom or policy of legislation.
o I find it impossible, in view of common experience, to say that there is here no real or substantial relation between the means
employed by the State and the ends sought to be accomplished by its legislation.
 Professor Hirt in his treatise on the “Diseases of the Workers” has said: “The labor of the bakers is among the hardest and most
laborious imaginable.
o Another writer says: “The constant inhaling of flour causes inflammation of the lings and of the bronchial tubes. The eyes
also suffer through this dust.”
 It is enough for the determination of this case that the question is one about which there is room for debate and for
an honest difference of opinion.
 There are many reasons that more than ten hours’ steady work each day may endanger the health, and shorten the lives of the
workmen
o If such reasons exist that ought to be the end of this case, for the State is not amenable to the judiciary, in respect of its
legislative enactments, unless such enactments are plainly, palpably, beyond all question, inconsistent with the constitution.
Dissent (Justice Holmes)
 It is settled by various decisions of this court that state laws may regulate life in many ways which we as legislators might think as
injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contact
 A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to
the State or of laissez faire.
 I think that the word liberty in the 14 th Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion,
unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental
principles as they have been understood by the traditions of out people and out law.

THE MEANING AND IMPLICATIONS OF LOCHNER

[notes]
1. Right to contract is fundamental w/in meaning of liberty protected by due process under the 14 th Amendment
2. Redistribution/Paternalism are illegitimate government ends
3. While health is legitimate, the fit or relationship between that end and means used to achieve it in the statute is too attenuated

1. Lochner and the text of the Fourteenth Amendment

2. Lochner and legislative ends
3. Lochner and the relationship between means and ends.
4. Extensions of Lochner
 From the Lochner decision in 1905 to the mid-1930s, the Court invalidated nearly 200 regulations on substantive due process grounds
 Following Lochner, the Court also invalidated many other sorts of labor laws, including those protecting the right to organize unions
 In Adair v. US (1908), the Court held unconstitutional, under Due Process Clause of the Fifth Amendment, a federal law prohibiting
interstate railroad employers from requiring that employees agree as a condition of employment “not to join or become or remain a
member of any labor organization.”
 Coppage v. Kansas (1915) arose from the conviction of an employer under a similar yellow-dog-contract law.
o The court held that the law violated due process: “Included in the right of personal liberty and the right of private property is
the right to make contracts.
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 An interference with this liberty so serious as that now under consideration must be deemed arbitrary, unless it be
supportable as a reasonable exercise of the police power of the state.
o Justice Holmes dissented:
 In present condition a workman not unnaturally may believe that only by belonging to a union can he secure a
contract that shall be fair to him
 It seems to me that it may be enforced by law in order to establish the equality of position between the parties in
which liberty of contract begins.
 The Court likewise invalidated a number of restraints on business entry
o In New State Ice Co. v. Liebmann (1932), the court invalidated an OK law that treated the manufacture of ice like a public
utility, requiring a certificate of convenience and necessary as a prerequisite to entry into the business
 Even during the Lochner era, however, many challenged laws withstood attack.
o For example, Muller v. Oregon (1908) sustained an Oregon law that provided that “no female” shall be employed in any
factory or laundry for “more than 10 hours during any one day.”
 Any special solicitude for regulations protecting women disappeared, however, in Adkins v. Children’s Hospital (1923), which held
that a DC law prescribing minimum wages for women violated due process.
o Justice Southerland noted that liberty of contract could not be subjected to “a naked, arbitrary exercise” of legislative power
over women any more than men.
5. Lochner’s Flaws
 By common consensus, Lochner was wrongly decided
o Perhaps Lochner was wrong because the Court stepped in to overturn a law passed with majority support.
o Alternatively, it could be argued, that Lochner was not wrong for overturning a popularity enacted law, but rather for
overturning it on the basis of a right not explicitly stated in the Constitution.
o Another possibility is that Lochner’s flaw lay neither in its countermajoritarian outcome nor its basing that outcome on an
implied constitutional right, but rather in simply ascribing too much weight to that right.
o Finally, Lochner may have been wrong just because it was decided in the realm of so-called “economic” rights rather than
personal liberty
6. Constitutionalizing an Economic Theory
 In Bailey v. Alabama (1911), Alabama had passed a law criminalizing any breach of a labor contract with intent to defraud; it also
established a prima facie presumption that any breach had been carried out with fraudulent intent.
o SCOTUS held that compelling laborers to carry out contracts they otherwise wished to breach violated the 13 th Amendment’s
prohibition on “involuntary servitude.”
o Justice Holmes dissented.
7. The Economic climate of the Great Depression: Lochner and the New Deal
 One reason for the Court’s shift away from Lochner may have been the inability to square Lochner with remedial legislation passed
during the Great Depression.

Nebbia v. New York – SCOTUS – 1934 (Justice Roberts) (PG 498)

Facts
 The Legislature of New York established in 1933 a Milk Control Board with the power to “fix minimum and maximum retail prices to
be charged by stores to consumers for consumption off the premises where sold.”
o The Board fixed nine cents as the price to be charged by a store for a quart of milk.
 Nebbia, the proprietor of a grocery store in Rochester, sold two quarts and a five cent loaf of bread for eighteen cents, and was
convicted of selling milk below the minimum price.
Issue
 Does the Constitution prohibit a state from so fixing the selling price of milk?
Reasoning
 During 1932 the prices received by farmers for milk were much below the cost of production.
o Milk is an essential item of diet.
o Failure of producers to receive a reasonable return threatens a relaxation of vigilance against contamination
 The legislature adopted this law as a method of correcting the evils, which the report of the committee showed could not be expected
to right themselves through the ordinary play of the forces of supply and demand, owing to the peculiar and uncontrollable factors
affecting the industry.
 The general rule is that both the use of property and the making of contracts shall be free of governmental interference.
o Equally fundamental with the private right is that of the public to regulate it in the common interest
 There is no closed class or category of businesses affected with a public interest
o The phrase “affected with a public interest,” can in the nature of things, mean no more than that an industry, for adequate
reason, is subject to control for the public good.
 So far as the requirement of due process is concerned, a state is free to adopt whatever economic policy may reasonably be deemed to
promote public welfare, and to promote the public welfare, and to enforce that policy by legislation adapted to its purpose
o If the laws have a reasonable relationship to a proper legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied.
Holding
 We find no basis for condemning the provisions of the law here drawn into question.
Dissent (Justice McReynolds, Van Devanter, Sutherland, and Butler)
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 Interference with guaranteed rights is defended upon the ground that the purpose was to promote the public welfare by increasing
milk prices at the farm
 The Legislative Committee pointed out as the obvious cause of decreased consumption notwithstanding low prices, the consumers’
reduced buying power.
o Higher store prices will not enlarge this power
o It appears to me wholly unreasonable to expect this legislation to accomplish the proposed end – increase of prices at the
farm

THE DEMISE OF LOCHNER AFTER THE NEW DEAL

1. Judicial deference to the means-ends relationship

 Nebbia marked a significant shift from Lochner, suggesting a much-reduced judicial role in scrutinizing the means employed in
economic regulations.
2. Judicial Deference to Legislative Ends
 A pivotal case was West coast Hotel Co. v. Parrish (1937) in which the Court overruled Adkins v. Children’s Hospital and upheld a
state minimum wage law for women.
o Chief Justice Hughes for the majority stated:
 The violation of due process alleged by those attacking minimum wage regulation for women is deprivation of
freedom of contract
 We think that Adkins was a departure from the true application of the principles governing the regulation by the
State of the relation of employer and employed.
 The legislature was clearly entitled to consider that women are in the class receiving the least pay, that
their bargaining power is relatively weak, and that they are the ready victims of those who would take
advantage of their necessitous circumstances.
 The legislature had the right to consider that its minimum wage requirements would be an important aid in
carrying out its policy of protection
 The exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus
relatively defenseless against the denial of a living wage is not only detrimental to their health and well being but
casts a direct burden for their support upon the community.
 The community may direct its law-making power to correct the abuse which springs from their selfish
disregard of the public interest.
o Justice Southerland, joined by the same 4 from above, dissented, insisting that “the meaning of the constitution does not
change with the ebb and flow of economic events” and that the law had not “the slightest relation to the capacity or earning
power of the employee, to the number of hours which constitute the day’s work, the character of the place where the work is
to be done, or the circumstances of the employment.”
 Note, that the court suggested that not regulating would be a subsidy to unconscionable employers” who would evade their fair share
of the welfare costs they had imposed upon the community.
3. The impact of Nebbia and West Coast hotel
 Two years after Nebbia, but before West Coast Hotel, the Court seemed to adhere to Adkins in Morehead v. New York ex rel.
Tipaldo (1936), which invalidated New York’s minimum wage law for women.
o Some viewed Justice Robert’s vote in West Coast Hotel as “the switch in time that saved the nine” from the Court-packing
plan, which failed in the Senate soon afterward.
 In 1938, in US v. Caroline Products Co., the Court rejected a due process challenge to a federal prohibition of the interstate shipment
of “filled milk” – skimmed milk mixed with non-milk fats – as an “adulterated article of food” whose sale constituted a “fraud upon
the public.”
o Even in the absence of such aids, the existence of facts supporting the legislative judgment is to be presumed, for regulatory
legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts
made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational
basis within the knowledge and experience of the legislators
 Justice Stone penned the famous Carolene Products Footnote 4, distinguishing cases warranting deference form those in which greater
judicial scrutiny might be appropriate.
o There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be
within a specific prohibition of the Constitution, such as those within the first 10 Amendments, which are deemed equally
specific when held to be embraced within the 14th.
 Justice Stone’s “political process” rationale in footnote 4 suggests that judicial intervention is more appropriate the less political
processes may be trusted to even out winners and losers over time.
o Note that the footnote seems to assume that rival economic factions, unlike other factions, will be able to compete fairly with
one another in the political process, with no one economic faction becoming systematically disadvantaged.

MINIMUM RATIONALITY REVIEW OF ECONOMIC LEGISLATION

 Carolene Products helped to introduce the minimum “rational basis” standard that continues to the present to govern due process
review of economic legislation.

Williamson v. Lee Optical Co. – SCOTUS – 1955 (Justice Douglas) (PG 503)
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PH and Outcome/Facts
 The DC held unconstitutional under the Due Process Clause the portions of a 1953 OK statute §2 which make it unlawful for any
person not a licensed optometrist or ophthalmologist to fit lenses to a face or to duplicate or replace into frames lenses or other optical
appliances, except upon written prescriptive authority of an OK licensed ophthalmologist or optometrist.
o An ophthalmologist is a duly licensed physician who specializes in the care of the eyes
 The effect of §2 is to forbid the optician from fitting or duplicating lenses without a prescription form an ophthalmologist or
optometrist
 The DC held that “although the legislature was dealing with a matter of public interest, the particular means chosen are neither
reasonably necessary nor reasonably related to the end sought to be achieved.
Issue
 Is §2 a violation of liberty under the DP clause of the 14 th Amendment?
Reasoning
 The OK law may exact a needless, wasteful requirement in many cases.
o But it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement.
 The Legislature might have concluded that the frequency of occasions when a prescription is necessary was
sufficient to justify this regulation of the fitting of eyeglasses
 The Legislature might have concluded that a written prescription was needed often enough to require one in every
case.
 The law need not be in every respect logically consistent with its aims to be constitutional
o The day is gone when this court uses the Due Process Clause to strike down state laws, regulatory of business and industrial
conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.
 An eyeglass frame, considered in isolation, is only a piece of merchandise.
o But an eyeglass frame is not used in isolation; it is used with lenses, pertaining as they do to the human eye, enter the field of
health
 Therefore, the legislature might conclude that to regulate one effectively it would have to regulate the other.
Holding
 We see no constitutional reason why a State may not treat all who deal with the human eye as members of a profession who should
use no merchandizing methods for obtaining customers.

CLOSER SCRUTINY OF ECONOMIC CLASSIFICATIONS?

1. Ex Post Justifications
 Lee Optical exemplifies an extremely deferential judicial stance
o Note the Court’s willingness to accept a conceivable rational relationship to any legitimate end as sufficient – meaning that
the challenged governmental actors can hypothesize reasons for the classification whether or not they contemplated those
reasons at the time of enactment.
 In Ferguson v. Skrupa (1963), which upheld a Kansas law prohibiting anyone form engaging “in the business of debt adjusting”
except as an incident to “the lawful practice of law.”
o Justice Black reiterated that the court had abandoned “the use of the ‘vague contours’ of the Due Process Clause to nullify
laws which a majority of the Court believed to be economically unwise.
 “We refuse to sit as a ‘super legislature to weigh the wisdom of legislation’”

Section 2. Substantive Due Process and Privacy (PG

 The Court has maintained and expanded a line of cases applying heightened judicial scrutiny to laws threatening certain rights to
“privacy”
 For example Meyer v. Nebraska (1923), read “liberty” broadly to reverse the conviction of a teacher for teaching German and thus
violating a state law prohibiting the teaching of foreign languages to young children
o Justice McReynolds, a devout Lochnerian found that the NB law “materially” interfered “with the calling of modern
language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the
education of their own.”
 Two years later, in Pierce v. Society of Sisters (1925), Justice McReynolds wrote in a similar vein sustaining a challenge by parochial
and private schools to an Oregon law requiring children to attend public schools.
o Under the Meyer view, there was no “general power of the State to standardize its children by forcing them to accept
instruction from public teachers only.”

SUBSTANTIVE DUE PROCESS, CHILDBEARING, AND CONTRACEPTION

 The Court’s invalidation of a state eugenics law in Skinner v. Oklahoma (1942), marked its first suggestion, after Lochner’s demise,
of a “basic liberty” not tied to a specific constitutional guarantee.
o Skinner’s use of a heightened standard of scrutiny to protect a Court-defined “fundamental right” arguably presaged
Griswold and Roe.
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o OK’s Habitual Criminal Sterilization Act provided for compulsory sterilization after a third conviction for a felony
involving “moral turptitude,” but excluded some felonies – like embezzlement – to which the sterilization requirement would
otherwise apply.
 Justice Douglas explained: “We are dealing here with legislation which involves one of the basic civil rights of man.
Marriages and procreation are fundamental to the very existence and survival of the race.”
o However, Justice Douglas stopped short of declaring compulsory sterilization inherently unconstitutional, and held that the
law’s true constitutional defect was its arbitrary application to some felonies but not others:
 “Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, it is
clear, pointed, unmistakable discrimination

Griswold v. Connecticut – SCOTUS – 1965 (Justice Douglas) (PG 510)

Facts
 The constitutionality of two CT provisions is involved
o One provides: “Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall
be fined not less than 50 dollars or imprisoned not less than 60 days nor more than 1 year or both.”
o The other provides: “Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may
be prosecuted and punished as if he were the principal offender
Issue
 Does this statute violate the 14th Amendment?
Reasoning
 We do not sit as a super-legislature to determine the wisdom of laws.
 The association of people is not mentioned in the Constitution nor in the Bill of Rights
o Yet the First Amendment has been construed to include certain of those rights
 We reaffirm the principle of the Pierce and the Meyer cases.
o The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from the
guarantees that help give them life and substance.
 The right of association contained in the penumbra of the first amendment is one, as we have seen
o We have had many controversies over these penumbral rights of “privacy and repose.”
 These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.
 The present case concerns a relationship lying within the zone or privacy created by several fundamental constitutional guarantees
o And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to
achieve its goals by means having a maximum destructive impact upon that relationship.
 We deal with a right to privacy older than the Bill of Rights
o Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.
o The association promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not
commercial or social projects.
Holding
 The right of married couples to use contraception is within the fundamental right to privacy.
Concurrence (Justice Goldberg, Chief Justice Warren and Justice Brennan)
 Although I have not accepted the view that “due process” as used in the 14 th Amendment incorporates all of the first 8 Amendments, I
do agree that concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill
of Rights
 My conclusion that liberty embraces the rgith of marital policy thought that right is not mentioned explicitly in the Constitution is
supported both by numerous decisions and by the language and history of the Ninth Amendment
o The ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.”
 To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage
may be infringed because that right is not guaranteed in so many words by the first eight amendments is to ignore
the 9th Amendment and to give it no effect whatsoever.
 The 9 Amendment simply lends strong support to the view that the “liberty” protected by the 5 th and 14th Amendments is not
th

restricted to rights specifically mentioned in the first 8 amendments.

Concurrence (Justice Harlan)
 In my view, the proper constitutional inquiry in this case is whether this CT statute infringes the DP clause of the 14 th Amendment
because the enactment violates basic values “implicit in the concept of ordered liberty.”
 Justice Harlan in Griswold relied expressly on his dissent in Poe v. Ullman (1961):
o I believe a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustified
invasion or privacy in the conduct of the most intimate concerns of an individual’s personal life.
 This “liberty” is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary
impositions and purposeless restraints, and which also recognizes that certain interests require particularly careful
scrutiny of the state needs asserted to justify their abridgment.
o If we had a case before us which required us to decide simply, and in abstraction, whether the moral judgment implicit in the
application of the present statute to married couples was a sound one, the very controversial nature of these questions would,
I think, require us to hesitate long before concluding that the Constitution precluded CT from choosing as it has among these
carious views.
 8
 But we are not presented simply with this moral judgment to be passed on as an abstract proposition.
o Here, the state is asserting the right to enforce its moral judgment by intruding upon the most intimate details of the marital
relation with the full power of the criminal law.
 In sum, the statute allows the State to enquire into, prove and punish married people for the private use of their
marital intimacy.
o That aspect of liberty which embraces the concept of the privacy of the home receives explicit Constitutional protection at
two places only (the 3rd and 14th Amendments
 It is clear that this statute does not invade the privacy of the home in the usual sense
 Of the whole ‘private realm of family life’ it is difficult to imagine what is more private or more intimate than a
husband and wife’s marital relations.
o Of course there are countervailing considerations
 It would be an absurdity to suggest either that offenses may not be committed in the bosom of the family or that the
home can be made a sanctuary for crime.
 Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry,
however privately practiced.
 But it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it
undertakes to regulate by means of the criminal law the details of that intimacy
o Since the law marks an abridgement of important fundamental liberties, it will not do to urge in justification that the statute
is rationally realted to the effectuation of a proper state purpose.
 A closer scrutiny and stronger justification than that are required.
Concurrence (Justice White)
 In my view this CT law as applied to married couples deprives them of “liberty” without due process.
o The CT law deals rather substantially with this relationship
o A statute with these effects bears a substantial burden of justification when attacked under the 14 th Amendment
 But such statutes, if reasonably necessary for the effectuation of a legitimate and substantial state interest, and not
arbitrary or capricious in application, are not invalid.
 I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces the State’s ban on illicit sexual
relationships
o At most the broad ban is marginal utility to the declared objective
o A statute limiting its prohibition on use to persons engaging in the prohibited relationship would serve the end posited by CT
in the same way, and with the same effectiveness, or ineffectiveness, as the broad anti-use statute under attack in this case.
Dissent (Justice Black, Stewart)
 I think it belittles the 4th Amendment to talk about it as though it protects nothing but “privacy.”
o “Privacy” is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also easily be
interpreted as a constitutional ban against many things other than searches and seizures.
 I like my privacy as much as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless
prohibited by some specific constitutional provision.
 If these families based on “natural justice” are to prevail, they require judges to determine what is or is not constitutional on the basis
of their own appraisal of what laws are unwise or unnecessary.
o I do not believe we are granted this power.
o Nor does anything in the history of the 9th Amendment offer any support for such a shocking doctrine
Dissent (Justice Stewart, Black)
 I think this is an uncommonly silly law.
o But we are asked to hold that it violates the Constitution
o And that I cannot do.
 As to the 1st, 3rd, 4th and 5th Amendments, I can find nothing in any of them to invalidate this CT law.
 The 9th, like its companion the 10th, was simply to make clear that the adoption of the Bill of Rights did not alter the plan that the
Federal Government was to be a governmental of express and limited powers.
o What provision of the Constitution, then, does make this law invalid?
 With all deference, I can find no such general right to privacy in the Bill of Rights, in any other part of the
Constitution, or in any case ever before decided by this court.

THE MEANING AND IMPLICATIONS OF GRISWOLD

1. The constitutional basis of the privacy right in Griswold

 Justice Douglas disavows Lochner as a guide
o He relies instead on the “penumbras” and “emanations” of several specific guarantees in the Bill of Rights.
2. Lochner v. Griswold
 Liberty of contract surely could be seen as an emanation, or within the penumbra, of the Contracts Clause in Article I, section 10
o And a general protection of property could be seen as within the penumbra of the specific mention of “property” in the
Takings Clause
 Is Griswold best seen as a decision reinforcing the rights of groups especially likely to be systemically disadvantaged in the political
process?
o Note that the prohibition on contraception was enforced in practice not against doctors for the middle and upper classes but
against birth control clinics used by indigent women.
 9
 Or is there any difference between Lochner and Griswold related more to the nature of the government interest than the nature of the
individual right?
4. The scope of “privacy” after Griswold
 In Eisenstadt v. Baird (1972), the Court overturned a conviction under a law banning the distribution of contraceptives
o Baird had distributed contraceptive foam, and the recipient was described by the state court as an unmarried person
o SCOTUS purported to decide the case as a violation of equal protection even under a minimum rationality standard
 THIS MOVES FROM “MARRIED” TO INDIVIDUALS
 Justice Brennan wrote: “If the right of privacy means anything, it is the right of the individual, married or single, to
be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child.”
5. Access of Minors to Contraceptives
 In Carey v. Population Services, International (1977), a divided SCOTUS struck down a NY prohibition of the sale or distribution
of contraceptives to minors under 16.
o Justice Brennan stated that strict scrutiny was required for restrictions on access to contraceptives, “because such access is
essential to exercise of the constitutionally protected right of decision in matters of childbearing that is the underlying
foundation of the holdings in Griswold, Eisenstadt, and Roe.”
o State power over children is greater than over adults
 Against that background, he was unpersuaded that the state interest in discouraging sexual activity among the young
were sufficiently “significant,” and expressed “substantial reason for doubt that limiting access to contraceptives
will in fact substantially discourage early sexual behavior.”

SUBSTANTIVE DUE PROCESS AND ABORTION

Roe v. Wade – SCOTUS – 1973 (Justice Blackmun) (PG 520)

PH and Outcome/Facts
 The challenged Texas law made it a crime to “procure an abortion” except “by medical advice for the purpose of saving the life of the
mother.”
 The challengers were a pregnant single woman (Jane Roe), a childless couple (John and Mary Doe), and a licensed physician (Dr.
Hallford).
o The suits by Roe and the Does were class actions
 A 3-judge DC ruled the Does’ complaint nonjusticiable, but granted declaratory relief to Roe and Dr. Hallford, holding the law
unconstitutional under the 9th Amendment.
Issue
 Does the privacy calculus in reproductive decisionmaking alter once a pregnancy has begun?
Reasoning
 The constitution does not explicitly mention any right of privacy.
o But he Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist
under the Constitution.
o Decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered
liberty” (Palko) are included in this guarantee of personal injury.
 The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent
o Maternity, or additional offspring, may force upon the woman a distressful life and future.
o Psychological harm may be imminent.
o There is also the distress, for all concerned, associated with the unwanted child.
o In other cases, the additional difficulties and continuing stigma of unwed motherhood may be involved.
 A state may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential
live
o At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that
govern the abortion decision.
 Texas argues that the fetus is a “person” within the language and meaning of the 14 th Amendment.
o But in nearly all instances, the use of the word “person” in the Constitution is such that it has application only postnatally
 Neither in Texas nor in any other State are all abortions prohibited
 We did not resolve the difficult question of when life begins
o When those trained in medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in
the development of man’s knowledge, is not in a position to speculate as to the answer.
 With respect to the interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at
approximately the end of the first trimester.
o This means, on the other hand, for the period of pregnancy prior to this “compelling” point, the attending physician, in
consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s
pregnancy should be terminated.
 With respect to the interest in potential life, the “compelling” point is at viability
o If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period,
except when it is necessary to preserve the life or health of the mother.
 Measured against these standards, the TX law sweeps too broadly and cannot survive the constitutional attack made upon it here.
 10
o This decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens so long
as those restrictions are tailored to the recognized state interests.
Holding
 This right to privacy, whether it be founded in the 14 th Amendment’s concept of personal liberty as we feel it is, or as the DC
determined, in the 9th Amendment, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy
Concurrence (Justice Stewart)
 So it was clear to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding
that the CT statute substantively invaded “liberty.”
o The “liberty” protected by due process covers more than those freedoms explicitly named in the Bill of Rights.
Dissent (Justice White, Rehnquist)
 I find nothing in the language or history of the Constitution to support the Court’s judgment
 As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an
improvident and extravagant exercise of the power of judicial review.
Dissent (Justice Rehnquist)
 I have difficulty in concluding that the right of “privacy” is involved in this case.
o A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word.
 I agree that “liberty” embraces more than the rights found in the Bill of Rights
o But that liberty is not guaranteed absolutely against deprivation, but only against deprivation without due process of law
o The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has
a rational relation to a valid state objective
 The court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify
under that standard.

THE MEANING AND IMPLICATIONS OF ROE

1. The Protected privacy interest

 Roe locates the privacy right in the liberty protected by the 14 th Amendment Due Process Clause, without invoking the approaches
used by Justices Douglas (penumbras) and Goldberg (the 9 th Amendment) in Griswold.
2. “Balancing” the competing government interests
 The Court find that the woman’s prima facie right to end her pregnancy can be defeated only by “competing “ state interests
 Point being, Roe finds that the Constitution > a consensus or lack thereof.
5. The political reaction to Roe
 Roe elicited fierce opposition and fueled strong efforts at political reversal.
o Opponents first sought to amend the Constitution to overturn the decision.
 Efforts to curtail the force of Roe at the federal level then shifted from constitutional amendments to legislative initiatives under
Congress’s civil rights enforcement powers
o Again, this effort failed, in part as a result of doubts about the constitutionality of trying to overturn a SCOTUS decision by
statute.
 Opposition to Roe helped bring together Catholics and Protestant evangelicals, traditional religious opponents, in a common political
cause.
6. The feminist implications of Roe
 Some scholars have observed that the decision is antifeminist in its approach
o The opinion could be understood to discount the pregnant woman’s preference in favor of the (implicitly male) doctors.
7. State regulation of abortion from Roe to Casey
 State legislatures passed a variety of restrictions on abortion after Roe, and in the period between Roe and Casey, nearly all of them
were struck down as impermissible under Roe:
a. Regulations of Medical Procedures
 In Doe v. Bolton (1973), SCOTUS invalidated portions of a GA law requiring that abortions be performed in an accredited hospital,
requiring prior approval of abortions by a hospital staff committee, and requiring the additional approval of an abortion by two doctors
in addition to the attending doctor
o The Court concluded that the attending physician’s “best clinical judgment should be sufficient.”
 In Akron v. Akron Center for Reproductive Health (Akron I) (1983), SCOTUS invalidated a requirement that abortions performed
after the first trimester be performed in a hospital rather than in outpatient facilities, which were typically less expensive.
o The Court also invalidated a provision mandating a set of detailed guidelines regarding information the attending physician
had to convey to the woman regarding the development of the fetus, the date of possible viability, and the complications that
might result from an abortion
o Justice Powell found much of the information required was “designed not to inform the woman’s consent but rather to
persuade her to withhold it altogether.”
b. Spousal and parental consent requirements
 In Planned Parenthood of Central Missouri v. Danforth (1976), the Court struck down MO’s requirement of a husband’s written
consent for an abortion during the first 12 weeks of pregnancy.
o Justice Blackmun held that “ the State cannot delegate authority even to the spouse to prevent abortion during the first
trimester,” since the woman “is the more directly and immediately affected by the pregnancy.”
o Rather, as elaborated in a companion case, Bellotti v. Baird (Bellotti I) (1976), a blanket “parental veto” is “fundamentally
different” from one permitting “a mature minor to obtain an over permitting the abortion without parental consultation.”
 11
 In Bellotti v. Baird (Bellotti II) (1979), Justice Powell’s plurality opinion announced that a state could involve a parent in a
minor’s abortion decision only if it also provided an alternative judicial bypass procedure so that the parental involvement would not
amount to an “absolute, and possibly arbitrary, veto.”
 In Planned Parenthood Assn. of Kansas City v. Ashcroft (1983), the court upheld a requirement of parental consent of a judicial
alternative, because the alternative comported with the Bellotti II requirement that “the State must provide an alternative procedure
whereby a pregnant minor may demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her
immaturity, an abortion would be in her best interests.”
8. Roe and Stare Decisis
 Notwithstanding the occasional strength of her rhetoric, Justice O’Connor has never questioned Roe’s central premise that the liberty
to choose abortion is fundamental, nor accepted the view that any state interest at any point in pregnancy may, if a state legislature
chooses, outweigh a woman’s right to choose.
o That prediction proved correct, and Justice O’Connor’s “undue burden” test became the prevailing one in the following
decision, reviewing a set of abortion regulations from PA

Planned Parenthood of Southeastern PA v. Casey – SCOTUS – 1992 (Justice O’Connor) (PG 532)

Facts
 A Pa law placed various limits on the availability of abortions, such as imposing a mandatory 24-hour waiting period after a woman
seeks an abortion before it be performed, and requiring spousal notification absent a certification that such notice might cause physical
injury
Issue
 Do these conditions violate the holding of Roe v. Wade?
Reasoning
 It is settled now that the Constitution placed limits on a State’s right to interfere with a person’s most basic decisions about family and
parenthood, as well as bodily integrity
o Our obligation is to define the liberty of all, not to mandate our own moral code
o At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of
human life.
 The liberty of the woman is at stake in a sense unique to the human condition and so unique in the law
o Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role,
however dominant that vision has been in the course of our history and our culture.
o In some critical respects the abortion decision is of the same character as the decision to use contraception, to which
Griswold, Eisenstadt, and Carey afford constitutional protection
 When this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic
considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law
o Although Roe has engendered opposition, it has in no sense proven “unworkable,” representing as it does a simple limitation
beyond which a state law is unenforceable.
 It’s determinations fall within judicial competence
o For two decades, people have organized intimate relationships and made choices that define their views of themselves and
their places in society, in reliance on the availability of abortion in the event that contraception should fail.
 While the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for
people who have ordered their thinking and living around that case be dismissed.
o No evolution of legal principle has left Roe’s doctrinal footings weaker than they were in 1973
o Time has overtaken some of Roe’s factual assumptions
 But these factual underpinnings of 1973 have no bearing on the validity of Roe’s central holding that viability marks
the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on
nontherapeutic abortions.
 The sustained and widespread debate Roe has provoked calls for some comparison between that case and others of comparable
dimension that have responded to national controversies
o The first example is that line of cases identified with Lochner
o The second comparison that 20th century history invites is with the cases employing the separate-but-equal rule
 Plessy v. Ferguson held that legislatively mandated racial segregation in public transportation works no denial of
equal protection.
 This rule was repudiated in Brown v. Board of Education, where this court observed that whatever may have been
the understanding in Plessy’s time of the power of segregation to stigmatize those who were segregated with a
“badge of inferiority,” it was clear by 1954 that legally sanctioned segregation had just such an effect, to the point
that racially separate facilities were deemed inherently unequal.
 Because neither the factual underpinnings of Roe’s central holding, not our understanding of it has changed, the court could not
pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the
Court in 1954.
 Overruling Roe’s central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously
weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of
law
o To overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the
Court’s legitimacy beyond any serious question.
 12
 In our view, the undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s
constitutionally protected liberty.
o Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor,
may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s
exercise of the right to choose.
o Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.
 To the extent Akron I and Thronburgh find a constitutional violation when the government requires, as it does here,
the giving of such truthful, non-misleading information, those cases go too far and are overruled.
 For those women who have the fewest financial resources, those who must travel long distances, and those who have difficulty
explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be particularly burdensome.
o These findings are troubling in some respects, but they do not demonstrate that the waiting period constitutes an undue
burden.
 There are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their
husbands.
o The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion.
o The husbands interest in the life of the child does not permit the State to empower him with thus troubling degree of authority
over his wife.
 Women do not lose their constitutionality protected liberty when they marry.
 We reaffirm today that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided there is
an adequate judicial bypass procedure.
 Every facility required to file a detailed report on the circumstances of the abortion must also file quarterly reports showing the
number of abortions performed broken down by trimester
o In all events, the identity of each woman who has had an abortion remains confidential
Holding
 We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot not repudiate
 We think all of the provisions here except that relating to spousal notice are constitutional
Concurrence (Justice Stevens)
 The court is unquestionably correct in concluding that the doctrine of stare decisis has controlling significance in a case of this kind
 I agree with the joint opinion that the State may “express a preference for normal childbirth,” that the State may take steps to ensure
that a woman’s choice “is thoughtful and informed.”
o However, decisional autonomy must limit the State’s power to inject into a woman’s most personal deliberations its own
views of what is best.
Concurrence (Justice Blackmun)
 I remain steadfast that the right to reproductive choice is entitled to the full protection afforded before Webster.
o The Roe framework is far more administrable and far less manipulable, than the “undue burden” standard.
Dissent (Chief Justice Rehnquist, White, Scalia, Thomas)
 We believe that Roe was wrongly decided, and that it can and should be overruled.
o One cannot ignore the fact that a woman is not isolated in her pregnancy, and that the decision to abort necessarily involves
the destruction of a fetus.
o At the time of the adoption of the 14th Amendment, statutory prohibitions or restrictions on abortion were commonplace.
 The joint opinion’s discussion of the principle of stare decisis appears to be almost entirely dicta, because the join opinion does not
apply that principle in dealing with Roe
o Authentic principles of stare decisis do not require that any portion of Roe be kept intact
o Erroneous decisions in constitutional cases are uniquely durable, because correction through legislative action, save for
constitutional amendment, is impossible.
 The opinion contends that the Court was entitled to overrule Plessy and Lochner in those cases, despite the existence of opposition to
the original decisions, only because both the Nation and the Court had learned new lessons in the interim.
o This is at best a feebly supported, post hoc rationalization.
 The sum of the joint opinion’s labors in the name of stare decisis and “legitimacy” is this: Roe stands as a sort of judicial Potemkin
Village, which may be pointed out to passers by as a monument to the importance of adhering to precedent.
o But behind the façade, an entirely new method of analysis is imported to decide the constitutionality of state laws regulating
abortion.
Dissent (Justice Scalia, Chief Justice Rehnquist, White, Thomas)
 Applying the rational basis test, I would uphold the PA statute in its entirety
 It is not reasoned judgment that supports the Court’s decision; only personal predilection
 I am appalled by the Court’s suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly
influenced – against overruling, not less – by the substantial and continuing public opposition the decision has generated.

THE MEANING AND IMPLICATIONS OF CASEY

1. Casey’s influence on substantive due process

 The notion of personal dignity has had an especially powerful influence on Justice Kennedy’s subsequent jurisprudence.
4. The “undue burden” standard and facial and as-applied challenges
 13
 The join opinion in Casey, while finding the informed consent and waiting period requirement constitutional on their face, left
open the question of whether they imposed undue burdens as applied
 Is facial invalidation always the right remedy for an abortion law containing a constitutional infirmity in some applications?
o Ayotte v. Planned Parenthood of Northern New England (2006) answered that question in the negative.
o Justice O’Connor wrote for the unanimous court:
 NH does not dispute, and our precedents hold, that a State may not restrict access to abortions that are ‘necessary,
in appropriate medical judgment, for preservation of the life or health of the mother,’
 Only a few applications of NH’s parental notification statute would present a constitutional problem
 So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory
judgment and an injunction prohibiting the statute’s unconstitutional application
5. “Partial birth” abortion
 In Stenberg v. Carhart (2000), SCOTUS, applying Casey, struck down a NB law prohibiting late-term “dilation and extraction (D &
X) abortions without providing for exceptions to preserve the mothers health.
o Justice Breyer wrote the majority:
 Where substantial medical authority supports the proposition that banning a particular abortion could endanger
women’s health, Casey requires the statute to include a health exemption when the procedure is ‘necessary, in
appropriate medical judgment, for the preservation of the life or health of the mother.’”
o Justice Kennedy dissented, joined by Chief Justice Rehnquist: “The Court’s failure to accord any weight to NB’s interest in
prohibiting partial-birth abortion is erroneous and undermines its discussion and holding.
o Justice Thomas dissented, joined by Scalia and Rehnquist: “The majority fails to distinguish between cases in which health
concerns require a woman to obtain an abortion and cases in which health concerns cause a woman who desires an abortion
(for whatever reason) to prefer one method over another.

Gonzales v. Carhart – SCOTUS – 2007 (Justice Kennedy) (PG 541)

PH and Outcome/Facts
 The surgical procedure referred to as “dilation and evacuation” or “D & E” is the usual abortion method in the second trimester.
o In D & E, the doctor inserts grasping forceps through the woman’s cervix and into the uterus to grab the fetus, evacuating the
fetus piece by piece until it has been completely removed.
 The abortion procedure that was the impetus for the numerous bans on “partial-birth abortion,” including the Act, is a variation of this
standard D & E
o In an intact D & E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping
it apart.
Issue
 Under Casey, does this Act, measured by its text in this facial attack, impose a substantial obstacle to late-term, but previability,
abortions?
Reasoning
 The Act here departs in material ways from the statute in Stenberg.
o It adopts the phrase “delivers a living fetus,” instead of “ ‘delivering a living unborn child, or a substantial portion thereof.’”
o The identification of specific anatomical landmarks requires the fetus to be delivered so that it is partially “outside the body
of the mother,” unlike the NB statute.
 The Act expresses respect for the dignity of human life
o The government may use its voice and its regulatory authority to show its profound respect for the life within the woman
 Congress determined that the abortion methods it prescribed had a “disturbing similarity to the killing of a newborn infant,” and thus it
was concerned with “drawing a bright line that clearly distinguishes abortion and infanticide.”
o The State has an interest in ensuring so grave a choice is well informed.
 Congress demonstrates both sides have medical support for their position
o The question becomes whether the Act can stand when this medical uncertainty persists
o The act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a
woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives.
 In these circumstances the proper means to consider exceptions is by as-applied challenge
o Can it be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the
procedure prohibited by the act must be used.
Holding
 The Act does not on its face impose a substantial obstacle.

Concurrence (Justice Thomas, Scalia)

 I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe, has no basis in the
Constitution.
Dissent (Justice Ginsburg, Stevens, Souter, Breyer)
 For the first time since Roe, the court blesses a prohibition with no exception safeguarding a woman’s health
o This Court has consistently required that laws regulating abortion, at any stage of pregnancy and in all cases, safeguard a
woman’s health.
 The Act scarcely furthers the Government’s “legitimate and substantial interest in preserving and promoting fetal life.”
o The law saves not a single fetus from destruction, for it targets only a method of performing abortion
 14
 Ultimately, the Court admits that “moral concerns” are at work
o Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence:
Women who have abortions come to regret their choices, and consequently suffer from “severe depression and loss of
esteem.”
 The solution the court approves, then, is not to require doctors to inform women, accurately and adequately, of the different
procedures and their attendant risks
o Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

Whole Woman’s Health et al. v. Hellerstedt, Comis. , TX Dept. of State Health Services – SCOTUS – 2016 (Justice Breyer) (Memo)

Facts
 The first provision, which we shall call the “admitting-privileges requirement,” says that “a physician performing or inducing an
abortion must, on the date the abortion is performed or induced, have acting admitting privileges at a hospital that is located not
further than 30 miles form the location at which the abortion is performed or induced.”
 The second provision, which we shall call the “surgical-center requirement” says that “the minimum standards for an abortion facility
must be equivalent to the minimum standards adopted under the TX health and safety code for ambulatory surgical centers.”
Issue
 We must determine whether the two provisions of TX’s House Bill 2 violate the Constitution as interpreted by Casey.
Reasoning
 The court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon
evidence and argument presented in judicial proceedings.
o In Gonzales, the court added that we must not “place dispositive weight” on those “findings.”
 The relevant statute here does not set forth any legislative findings
o Rather, one is left to infer that the legislature sought to further a constitutionally acceptable objective (namely, protecting
women’s health).
 The purpose of the admitting-privileges requirement is to help ensure that women have easy access to a hospital should complications
arise during an abortion procedure.
o But the DC found that it brought about no such health-related benefit:
 A collection of at least 5 peer-reviewed studies on abortion complications on the first trimester, showing that the
highest rate of major complications – including those that required hospital admissions – was less than ¼ of 1%
 Figures in 3 peer-reviewed studies showing that the highest complication rate found for the much rarer second
trimester abortion was less than ½ of 1% (0.45% or about 1 out of about 200)
 Expert testimony that complications rarely require hospital admission, much less immediate transfer to a hospital
from an outpatient center
 Expert testimony stating that “it is extremely unlikely that a patient will experience a serious complication at the
clinic that requires emergent hospitalization” and “in the rare cases, the quality of care that the patient receives is not
affected by whether the abortion provider has admitting privileges at the hospital.
 Expert testimony in respect to surgical abortion patient who do suffer complications requiring hospitalization, most
of these complications occur in the days after the abortion, not on the spot.
 Expert Testimony stating that a delay before the onset of complications is also expected for medical abortions, as
“abortifacient drugs take time to exert their effects, and thus the abortion itself almost always occurs after the patient
has left the abortion facility.”
 Some experts added that, if a patient needs a hospital in the day or week following her abortion, she will likely seek
medical attention at the hospital nearest her home.
 We have found nothing in TX’s record evidence that shows that compared to prior law, the new law advanced TX’s legitimate interest
in protecting women’s health.
o TX admitted that there was no evidence in the record of such a case.
 At the same time, the record evidence indicates that the admitting-privileges requirement places a “substantial obstacle in the path of a
woman’s choice.”
o In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of
TX’s clinics, or thereabouts.
 There is considerable evidence in the record supporting the DC’s findings indicating that the statutory provision requiring all abortion
facilities to meet all surgical-center standards does not benefit patients and is not necessary.
o Complications would almost always arise only after the patient has left the facility
o Abortions in an abortion facility are, indeed, safer than numerous procedures that tale place outside hospitals
 Nationwide, childbirth is 14 times more likely than abortion to result in death
 Colonoscopy has a mortality rate 10 times higher than an abortion
 Liposuction, 28 times higher.
o Moreover, many surgical-center requirements are inappropriate as applied to surgical abortions
 The record provides evidentiary support that the surgical-center requirement places a substantial obstacle in the path of women
seeking an abortion
Holding
 We conclude that neither of these provisions confers medical benefits sufficient to justify the burdens upon access that each imposes.
Concurrence (Justice Ginsburg)
 15
 It is beyond rational belief that H.B. 2 could genuinely protect the health of women, and certain that the law would simply make it
more difficult for the to obtain abortions.
o Women in desperate circumstances may resort to unlicensed rogue practitioners.
Dissent (Justice Thomas)
 Whatever scrutiny the majority applies to TX’s law, it bears little resemblance to the undue-burden test the Court articulated in Casey.
 First, today’s decision requires courts to “consider the burdens a law imposes on abortion access together with the benefits those laws
confer.”
 Second, today’s opinion tells the courts that, when the law’s justifications are medically uncertain, they need not defer to the
legislature
 Finally, even if a law imposes no “substantial obstacle” to women’s access to abortions, the law mow must have more than a
“reasonable relation to a legitimate state interest.”
Dissent (Justice Alito, Chief Justice Roberts, Thomas)
 The absence of proof regarding the reasons for particular closures is a problem because some clinics have or may have closed for
reasons other than the two HB 2 requirements at issue here.
 Petitioners offered scant evidence on the capacity of the clinics that are able to comply with the admitting privileges and ASC
requirements, or on those clinic’s geographic distribution.
 If the only clinics in the State were those that would have remained open if the judgment of the 5 th Circuit had not been enjoined,
roughly 95% of the women or reproductive age in the State would live within 150 miles of an open facility (or lived outside that range
before HB 2).

SUBSTANTIVE DUE PROCESS AND MARRIAGE AND FAMILY RELATIONSHIPS

1. Marriage
 The state obviously regulates marriage and divorce extensively by setting forth the rules for entry dissolution
 SCOTUS’s 1967 decision in Loving v. Virginia, striking down VA’s ban on interracial marriage, relied principally on equal
protection, but Chief Justice Warren also stated as an alternative ground for the holding, “These statutes also deprive the Lovings of
liberty without due process of law in violation of the Due Process Clause of the 14th Amendment.
o “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”
 In Zablocki v. Redhail (1978), the Court invalidated a WI law that provided that any resident “having minor issue not in his custody
and which he is under an obligation to support by any court order” could not marry without obtaining court approval, which depended
on proof that the applicant’s support obligation had been met and that children covered by the support order “are not then and are not
likely thereafter to become public charges.”
o Redhail’s application for marriage was denied because he had not obtained court permission, not could he, because he had
not been paying court-ordered support for a daughter he had had in a previous unmarried relationship had been receiving
benefits under the AFDC program since her birth.
o He brought a class action challenging the law under the Equal Protection and Due Process Clauses
 Justice Marshall’s opinion stated that since “the right to marry is of fundamental importance, and since the
classifications at issue here significantly interferes with the exercise of that right, we believe that ‘critical
examination’ of state interests advanced is required.
 “The right to privacy is part of the fundamental ‘right to marry’ implicit in the Due Process Clause.
 “If the right to procreate means anything at all, it must imply some right to enter the only relationship in
which the State allows sexual relations legally to take place.
o “The state had other, less intrusive means for exacting compliance with support obligations.”
 Justice Powell’s concurrence objected that “a ‘compelling state purpose’ inquiry would cast doubt on the network of
restrictions that the States have fashioned to govern marriage and divorce,” such as “bans on incest, bigamy, and
homosexuality, as well as various preconditions to marriage, such as blood tests,” but concluded that the law could
not pass muster under even less exacting scrutiny
 Justice Stewart’s concurring opinion was the only one which found substantive due process the sole appropriate
basis for decision.
 Justice Rehnquist, the sole dissenter, insisted on “the traditional presumption of validity” as expressed in such cases
as Lee Optical.
 In Turner v. Safley (1987), the Court struck down a prison regulation that restricted prison inmates’ right to marry by conditioning it
on the prison superintendents’ approval for “compelling reasons ‘such as pregnancy or birth of a child.’”
o Justice O’Connor stated, “Many important attributes of marriage remain as a result of incarceration.
 “First, inmate marriages, like others, are expressions of emotional support and public commitment.
 “Many religions recognize marriage as having spiritual significance
 “Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are
formed in the expectation that they ultimately will be fully consummated.
 “Finally, marital status often is a pre-condition to the receipt of government benefits.”
2. Household composition and extended family relationships
 In Moore v. East Cleveland (1977), the court invalidated a zoning ordinance limiting occupancy of a dwelling to members of a single
“family,” narrowly defined, as applied to a grandmother who shared her home with two grandsons who were first cousins rather than
siblings.
o According to the City’s position “any constitutional right to live together as a family extends only to the nuclear family
 16
o Justice Powell’s plurality opinion gave substantive due process as the ground for invalidating the application of the
ordinance to Mrs. Moore, suggesting that a scrutiny stricter than deferential rationality review was appropriate
 Powell held that the principles of the cases beginning with Meyer and Pierce covered “extended family”
relationships such as Mrs. Moore’s as well as “the nuclear family – essentially a couple and its dependent children.”
 Powel acknowledged that “there are risks when the judicial branch gives enhanced protection to certain substantive
liberties without the guidance of the more specific provisions of the Bill of Rights.
 “That history, however, does not counsel abandonment, nor does it require what the city urges here: cutting
off any protection of family rights at the first convenient, if arbitrary boundary – the boundary of the
nuclear family.
 “Our values, moral and traditional, are by no means a tradition limited to respect for the bonds uniting the
members of the nuclear family.”
o Justice Stevens concurred only in the result, resting on a right to the enjoyment of property rather than on the liberty interest
identified in Justice Powell’s plurality opinion.
o Justice White’s dissent argues that Justice Powell’s emphasis on history and tradition would “broaden enormously the
horizons” of substantive due process
o Justice Stewart’s dissent, joined by Justice Rehnquist, likewise argued that Mrs. Moore’s interest could not be considered
“implicit in the concept of ordered liberty.”
 Contrastingly, Village of Belle Terre v. Boras (1974), Justice Douglas’s majority opinion, over Justice Marshall’s dissent, found no
privacy rights involved in a family oriented zoning restriction excluding most unrelated groups from a village.
o Justice Douglas insisted the ordinance represented “economic and social legislation” and invoked the deferential judicial
stance characteristic of zoning cases
o Justice Powell, in Moore, distinguished Belle Terre because it had affected “only unrelated individuals.”
o Justice Marshall argued that strict scrutiny was appropriate.
 In Troxel Granville (2000), the court concluded that, when applying a Washington statute that granted “any person” the right to
petition for child visitation rights “at any time,” substantive due process required the state court to give “special weight” to the
parent’s preferences.
o The facts of the case involved a disagreement between the sole surviving parent of two children – a “fit, custodial mother” –
and the children’s paternal grandparents over how much visitation time the grandparents should receive.
o Justice O’Connor stated that “it cannot now be doubted that the Due Process Clause of the 14th Amendment protects the
fundamental right of parents to make decisions concerning the care, custody, and control of their children.
 “If a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least
some special weight to the parent’s own determination.”
o Justice Stevens dissented: “There are plainly any number of cases in which the ‘person’ seeking visitation is a once-custodial
caregiver, an intimate relation, or even a genetic parent.
 “We have never held that the parent’s liberty interest in this relationship is so inflexible as to establish a rigid
constitutional shield.
 “There is at a minimum a third individual, whose interests are implicated – the child.
 “It seems clear to me that the Due process clause of the 14th Amendment leaves room for States to consider
the impact on a child of possibly arbitrary decisions.”
o Justice Scalia also dissented: “I do not believe that the power which the Constitution confers upon me as a judge entitles me
to deny legal effect to laws that (in my view) infringe upon what is (in my view) an unenumerated right.
o Justice Kennedy’s dissent echoed Justice Stevens: “Family courts in the 50 States confront these factual variations each day,
and are best situated to consider the issues that arise.”
3. Family relationships and the role of tradition
 Can tradition and historical custom serve as useful checks upon judicial interpretation of “fundamental values” in substantive due
process cases?
 In Michael H. v. Gerald (1989), a case that arose from application of a CA law establishing a presumption that a child born to the wife
is legitimately a child of the marriage, a presumption rebuttable only under limited circumstances.
o Michael H., claiming to be the biological father of the child of Carole D. and Gerald D., a married couple, sought visitation
and other rights with respect to the child.
 The CA courts, rejected Michael H.’s claim of paternity even though blood tests established a 98.07% probability
that he is the father.
o Justice Scalia, writing also for Chief Justice Rehnquist and in part for Justices O’Connor and Kennedy, concluded that none
of Michael H.’s constitutional rights had been violated.
 In Scalia’s view, due process protection required “not merely that the interest denominated as a liberty ‘liberty’ by
‘fundamental,’ but also that it be an interest traditionally protected by our society.
 “Thus, the legal issue here reduces to whether the relationship between the persons in the situation of
Michael and Victoria (the child) has been treated as a protected family unit under the historic practices of
out society, or whether on any other basis it has been accorded special protection.
o We think it impossible to find that it has.
 In a lengthy footnote, Justice Scalia defended his position that resort to “tradition” required emphasis on the “most
specific” level of generality at which the history and tradition could be perceived.
 WE GET THIS FROM HARLAN
o Justice O’Connor, joined by Justice Kennedy, joined all of Justice Scalia’s opinion except the footnote
 17
 “On occasion the Court has characterized relevant traditions protecting asserted rights at levels of generality that
might not be ‘the most specific level’ available.”
o Justice Brennan’s dissent, included strong opposition to Justice Scalia’s methodology: “apparently oblivious to the fact that
the concept of tradition can be as malleable and as elusive as ‘liberty’ itself, the plurality pretends that tradition places a
discernable border around the Constitution.”
 THINGS HAVE CHANGED; TAKE CHANGE INTO CONSIDERATION WHEN VIEWING FUNDAMENTAL
RIGHTS

SUBSTANTIVE DUE PROCESS, SEXUALITY, AND HYBRID DUE PROCESS-EQUAL PROTECTION RIGHTS

 Does substantive due process protect only negative liberty – freedom from government interference in private decisions, such as
consensual sexual behavior – or does it extend to positive liberty – the freedom to participate fully in all societal institutions, including
marriage and child rearing?
 In Hollenbaugh v. Carnegie Free Liberty (1978), the court denied a petition for cert from a decision upholding the discharge of two
public library employees for adulterous co-habilitation, over Justice Marshall’s and Brennan’s dissent.
 The Court’s first consideration of the merits of a claimed right of privacy in sexual conduct occurred in Bowers v. Hardwick (1986),
a case involving a facial challenge to a GA law that defined sodomy as “committing or submitting to ‘any sexual act involving the sex
organs of one person and the mouth or anus of another,’” and made such an act a felony punishable by up to 20 years in prison.
o By a vote of 5-4, the Court upheld the statute as applied to “homosexual sodomy.”
o Justice white found that so defined, the right was not fundamental within the meaning of the Court’s precedents under the
Due Process Clause:
 No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has
been demonstrated.
 Proscriptions against that conduct have ancient roots
 In 1868, when the 14th amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy
laws.
 Against this background, to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history
and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.
 The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law
having little or no cognizable roots in the language or design of the Constitution.
o Applying rationality review, the majority opinion upheld the law.
o Chief justice Berger filed a concurrence emphasizing that “proscriptions against sodomy have very ‘ancient roots’” in
“Judeo-Christian moral and ethical standards.”
o Justice Powell filed a concurrence suggesting that he might have regarded the 20-year prison sentence “for a single private,
consensual act of sodomy” as creating “a serious 8th Amendment issue.”
 After his retirement, Justice Powell stated that he “probably made a mistake” in voting as he did.
o In dissent, Justice Blackmun, joined by Brennan, Marshall, and Stevens, argued that the right in question had been defined
too narrowly:
 This is about ‘the most comprehensive of rights of the right most valued by civilized man,’ namely, ‘the right to be
let alone.’
 The fact that individuals define themselves in a significant way through their intimate sexual relationships with
others suggests, in a Nation as diverse as ours, that there may be many ‘right’ ways of conducting those
relationships, and that much of the richness of a relationship will come from the freedom an individual has to
choose the form and nature of these intensely personal bonds.
o Justice Stevens dissented too, emphasizing that if the law could not be enforced as written, and was being used to target only
a subset of the population, namely gay men, then the state must justify its application of the law under heightened scrutiny.

Romer v. Evans – SCOTUS – 1996 (Justice Kennedy) (PG 553)

Facts
 An amendment to the Colorado Constitution adopted in a 1992 statewide referendum as “Amendment 2” stemmed in large part from
ordinances that had been passed in various CO municipalities, banning discrimination in many transactions and activities, including
housing, employment, education, public accommodations, and health and welfare services.
o What gave rise to the statewide controversy was the protection the ordinances afforded to persons discriminated against by
reason of their sexual orientation.
 Amendment 2 prohibits all legislative, executive, or judicial action at any level of state or local government designed to protect the
named class, a class we shall refer to as homosexual persons or gays and lesbians.
o The Amendment reads:
 Neither the State of CO, through any of its branches or departments, shall enact, adopt or enforce any statute,
regulation, ordinance, or policy whereby homos, lesbian or bisexual orientation, conduct, practices or relationships
shall constitute or otherwise by the basis of or entitle any person or class of persons to have or claim any minority
status, quota preferences, protected status or claim of discrimination.
Issue
 Is Amendment 2 a violation of Due process or equal protection?
Reasoning
 18
 The State’s principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons
o We rely on the authoritative construction of CO’s Supreme Court:
 The immediate objective of Amendment 2 is, at a minimum, to repeal existing statutes, that barred discrimination
based on sexual orientation.
 The ‘ultimate effect’ of Amendment 2 is to prohibit any governmental entity from adopting similar, or more
protective statuses, in the future unless the state constitution is first amended to permit such measures.
o The amendment withdraws from homos, but no others, specific legal protections form the injuries caused by discrimination,
and it forbids reinstatement of these laws and policies.
 The change that Amendment 2 works in the legal status of gays and lesbians in the private sphere is far-reaching
 These statutes and ordinances also depart form the common law by enumerating the groups of persons within their ambit of
protection.
o CO’s state and local governments have not limited anti-discrimination laws to groups that have so far been given the
protection of heightened equal protection scrutiny under our cases.
o Rather, they set forth an extensive catalogue of traits which cannot be the basis for discrimination, including age, military
status, marital status, pregnancy, among others.
 Amendment 2 bars homos from securing protection against the injuries that these public-accommodations laws
address.
 Not confined to the private sphere, Amendment 2 also operates to repeal and forbid all laws or policies providing specific protection
for gays or lesbians from discrimination by every level of CO government
o The State Supreme Court listed 2 examples
 The fist is the CO Executive Order which forbids employment discrimination against “ ‘all state employees,
classified and exempt’ on the basis of sexual orientation.”
 Also repealed, and now forbidden, are “various provisions prohibiting discrimination based on sexual orientation at
state colleges.”
 At some point in the systematic administration of these laws, an official must determine whether homosexuality is an arbitrary and
thus forbidden basis for decision.
o Yet a decision to that effect would itself amount to a policy prohibiting discrimination on the basis of homosexuality, and so
would appear to be no more valid under Amendment 2 than the specific prohibitions against discrimination the state court
held invalid.
o Even if, as we doubt, homos could find some safe harbor in laws of general application, we cannot accept the view that
Amendment 2’s prohibition on specific legal protections does not more than deprive homos of special rights.
 To the contrary, the amendment imposes a special disability upon those persons alone.
 We find nothing special in the protections Amendment 2 withholds.
o These are protections taken for granted by most people either because they already have them or do not need them; these are
protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life
in a free society.
 The equal protection guarantee must co-exist with the practical necessity that must legislation classifies for one purpose or another,
with resulting disadvantage to various groups or persons
o If a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as
it bears a rational relation to some legitimate end.
o Amendment 2 fails even this:
 First, the Amendment has the peculiar property of imposing a broad and undifferentiated disability on a single
named group.
 Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable
by anything but animus toward the class that it affects.
 To search for a link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and
discipline for the legislature, which is entitled to know what sorts of laws it can pass; and in marks the limits of our own authority.
o By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that
classifications are not drawn for the purpose of disadvantaging the group burdened by the law.
 Amendment 2 confounds this normal process of judicial review
o It is at once too narrow and too broad.
o Central both to the idea of the rule of law and to our own Constitutional’s guarantee of equal protection is the principle that
government and each of its parts remain open on impartial terms to all who seek its assistance.
 A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born
of animosity toward the class of persons affected.
o Amendment 2, in making a general announcement that gays and lesbians shall not have any particular protections from the
law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be
claimed for it.
 The primary rationale the State offers for Amendment 2 is respect for other citizens’ freedom of association, and in particular the
liberties of landlords or employers who have personal or religious objections to homos.
o We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective
Holding
 Amendment 2 lacks a rational relationship to legitimate state interests
 A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is
itself a denial of equal protection of the laws in the most literal sense.
 19
Dissent (Justice Scalia, Chief Justice Rehnquist, Thomas)
 The constitutional amendment before us here is not the manifestation of a “bare desire to harm” homos, but is rather a modest attempt
by seemingly tolerant Coloradians to preserve traditional sexual mores against the efforts of a politically powerful minority to revise
those mores through the use of the laws.
 In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here,
pronounced only 10 years ago, see Bowers, and places the prestige of this institution behind the proposition that opposition to
homosexuality is as reprehensible as racial or religious bias.
o This Court has no business upon all Americans the resolution favored by the elite class from which the Members of this
institution are selected, pronouncing that “animosity” toward homosexuality is evil.
 I agree that we need not resolve this dispute because the Supreme Court of Colorado has resolved it for us:
o Amendment 2 seeks only to prevent the adoption of antidiscrimination laws intended to protect gays, lesbians, and bisexuals.
 The clear import of the CO Court’s conclusion is that “general laws and policies that prohibit arbitrary discrimination” would continue
to prohibit discrimination on the basis of homosexual conduct as well.
o The only denial of equal treatment it contends homos have suffered is this: They may not obtain preferential treatment
without amending the state constitution.
 What CO has done is not only unprohibited, but eminently reasonable.
o But I had though that one could consider certain conduct reprehensible – murder, for example, or polygamy, or cruelty to
animals – and could exhibit even “animus” toward such conduct
 Surely that is the only sort of “animus” at issue here: moral disapproval of homo conduct, the same sort of moral
disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.

THE MEANING AND IMPLICATIONS OF ROMER

1. Romer’s rationale
 The Court has established three levels of review under the Equal Protection Clause
o The most demanding, known as strict scrutiny, apples to suspect classifications – discrimination against groups that the court
has held merit special protection, owing to their status as “discrete and insular minorities.”
 Strict scrutiny also applies when a particular group is singled out for deprivation of a fundamental right
o Intermediate Scrutiny, is mainly used for classification on the basis of gender
 Intermediate scrutiny requires that government action be substantially related to an important government interest.
o All other classifications are subject to deferential “rational basis review,” meaning the will be upheld if they are rationally
related to some legitimate governmental interest
 The Court relied on an amalgam of two arguments
o The 14th Amendment by its terms guarantees equal protection of the law; in choosing that language, its Framers were
concerned in part that Southern officials not look the other way when lynchings and other violence affected African-
Americans
o The second argument on which Justice Kennedy relied was that Amendment 2 could not survive even minimum rationality
review.
 In only one case has any Justice ever argued that the analogy to race discrimination is sufficient to warrant formal heightened scrutiny
of classifications based on sexual orientation: Justice Brennan, in a dissent from a denial or cert in Rowland v, Mad River School
District (1985) wrote: “Homos constitute a significant and insular minority of this country’s population.”
2. Alternative justifications for Romer
 Farber & Sherry, “The Pariah Principle,” argues that the ruling was justified because of the principle that “forbids the government
from designating any societal group as untouchable, regardless of whether the group in question is generally entitled to some special
degree of judicial protection, like blacks, or to no special protection, like left-handers.”
 Seven years later, Bowers was formally overruled.
o The overruling occurred in a case involving a TX law that, unlike the GA law in Bowers, prohibited only sodomy between
persons of the same sex.

Lawrence v. Texas – SCOTUS – 2003 (Justice Kennedy) (PG 561)

Facts
 In Houstan, TX, officers of the Harris County PD were dispatched to a private residence in response to a reported weapons
disturbance.
o They entered an apartment where one of the petitioners, John Geddes Lawrence, resided.
o The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act.
 The two petitioners were arrested, held in custody over night, and charged an convicted before a justice of the Peace of “deviate sexual
intercourse, namely anal sex, with a member of the same sex (man),” under TX Penal Code Ann. § 21.06(a) which provides: “A
person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.”
o The statute defines “deviate sexual intercourse” as follows:
 “(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the
penetration of the genitals or the anus of another person with an object.”
 The petitioners were adults at the time of the alleged offense.
o Their conduct was in private and consensual.
Issue
 20
 Is the TX statute, making it a crime for two persons of the same sex to engage in certain intimate sexual conduct a violation of
substantive due process or equal protection under the 14 th Amendment?
Reasoning
 Freedom extends beyond spatial bounds.
o Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct
o The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
 The most pertinent beginning point in our decision is Griswold.
o There, the Court described the use of drugs or devices of contraception as a right of privacy and places emphasis on the
marriage relation and the protected space of the marital bedroom.
o After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the
marital relationship. – Eisenstadt.
 The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a
fundamental right upon homos to engage in sodomy and hence invalidates the laws of the many states that still make such conduct
illegal and have done so for a very long time.”
o That statement, we now conclude, discloses the Court’s own failure to appreciate the context of the liberty at stake.
 The laws involved in Bowers and here do seek to control a personal relationship that, whether or not entitled to formal recognition in
the law, is within the liberty of persons to choose without being punished as criminals.
o When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in
personal bond that is more enduring.
o The liberty protected by the Constitution allows homo persons the right to make this choice (RIGHT TO DIGNITY)
 In academic writings, and in many of the scholarly amicus briefs filed to assist the court in this case, there are fundamental criticisms
of the historical premises relied upon by the majority and concurring opinions in Bowers that counsel against adopting the definitive
conclusions upon which Bowers placed such reliance.
o The absence of legal prohibitions focusing on homosexual conduct throughout common law history may be explained in part
by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until
the late 19th century.
 Thus early American sodomy laws were not directed at homos as such but instead sought to prohibit nonprocreative
sexual activity more generally
o Laws prohibiting sodomy do not seem to have been enforced against consenting adults in private
 The infrequency of these prosecutions makes it difficult to say that society approved of a rigorous and systematic
punishment of the consensual acts committed in private and by adults
 Far from possessing “ancient roots,” American laws targeting same-sex couples did not develop until the last third
of the 20th century.
o The issue is whether the majority may use the power of the State to enforce these views on the whole society through
operation of the criminal law.
 Our laws and traditions in the past half-century show an emerging awareness that liberty gives substantial protection to adult persons
in deciding how to conduct their private lives in matters pertaining to sex.
o In 1955 the American Law Institute promulgated the Model Penal code and made clear that it did not recommend or provide
for “criminal penalties for consensual sexual relations conducted in private.”
o It justified its decision on 3 grounds:
 1. The prohibitions undermined respect for the law by penalizing conduct many people engaged in;
 2. The statutes regulated private conduct not harmful to others; and
 3. The laws were arbitrarily enforced and this invited the danger of blackmail
o Likewise, a committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct.
 Almost 5 years before Bowers was decided the European High Court of Human Rights considered a case with parallels to Bowers and
to today’s case.
o An adult make resident of northern Ireland alleged he was a practicing homo who desired to engage in consensual
homosexual conduct.
 The laws of Northern Ireland forbade him that right
o The Court held that the laws proscribing the conduct were invalid under the European convention on Human Rights
 The 25 States with laws prohibiting sodomy are reduced now to 13, of which 4 enforce their laws only against homosexual conduct.
o In those States where sodomy is still proscribed, there is a pattern of nonenforcement with respect to consenting adults acting
in private.
 Two principal cases decided after Bowers cast its holding into even more doubt.
o In Planned Parenthood v. Casey, the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause
o Persons in a homo relationship may seek autonomy for these purposes, just as heterosexual persons do.
 The decision in Bowers would deny them this right.
o The second post-Bowers case of principal relevance is Romer v. Evans.
 There, the court struck down class-based legislation directed at homos as a violation of the Equal Protection Clause
 As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the
basis for declaring the TX statute invalid under the Equal Protection Clause
 That is a tenable argument, but we conclude that the instant case requires us to address whether Bowers
itself has continuing validity.
 When homo conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homo persons
to discrimination both in the public and in the private spheres.
 21
 In the US, criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just to its
historical assumptions.
o Other nations, too, have taken action consistent with an affirmation of the protected right of homo adults to engage in
intimate, consensual conduct.
o There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more
legitimate or urgent.
 The holding in Bowers, has not induced detrimental individual or societal reliance of the sort that could counsel against overturning its
holding once there are compelling reasons to do so.
 Justice Stevens’ analysis, in his dissent in Bowers, in our view, should have been controlling in Bowers and should have control here:
o Our cases make two propositions abundantly clear:
 First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not
a sufficient reason for upholding a law prohibiting the practice;
 Second, individual decisions by married persons, concerning the intimacies of their physical relationship are a form
of ‘liberty’ protected by the Due Process Clause of the 14 th Amendment.
 The case here involves two consenting adults who, with full and mutual consent from each other, engaged in common sexual practices
o The petitioners are entitled to respect for their private lives.
o The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.
 The TX statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual
o As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedoms.
Holding
 Bowers v. Hardwick should be and is now overruled
 Consenting adults’ right to liberty under the Due Process Clause gives them the full right to engage in their conduct without
intervention of the government.
Concurrence (Justice O’Connor)
 I joined Bowers, and do not join the court in overruling it.
o Nevertheless, I agree with the court that TX’s statute banning same-sex sodomy is unconstitutional
o I base my conclusion on the 14th Amendment’s Equal Protection Clause.
 When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis
review to strike down such laws under the Equal Protection Clause
o The TX statute makes homos unequal in the eyes of the law by making particular conduct – and only that conduct – subject
to criminal sanction.
o And the effect of TX’s sodomy law makes it more difficult for homos to be treated in the same manner as everyone else
including in the areas of “employment, family issues, and housing.”
 This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state
interest to justify itself a statute that bans homo sodomy, but not hetero sodomy.
o Whether a sodomy law that is neutral both in effect and application would violate the substantive component of the Due
Process Clause is an issue that need not be decided today.
Dissent (Justice Scalia, Chief Justice Rehnquist, Thomas)
 Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that
certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation.
 There is no right to “liberty” under the Due Process Clause, though today’s opinion repeatedly makes that claim
o The 14th Amendment expressly allows States to deprive their citizens of “liberty,” so long as “due process of law” is
provided.
 We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called
“heightened scrutiny” protection – that is, rights which are “ ‘deeply rooted in this Nation’s history and tradition.’”
o Homosexual sodomy is not a right “deeply rooted in our Nation’s history and tradition.”
o Constitutional entitlements do not spring into existence because foreign nations decriminalize conduct.
 The Court’s discussion of foreign views is therefore meaningless dicta.
 The TX statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and
unacceptable” – the same interest furthered by criminal laws against fornication, bigamy, adultery, adult interest, bestiality, and
obscenity.
o This effectively decrees the end of all morals legislation.
 Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called
homosexual agenda, by which I mean the agenda promoted by some homo activists directed at eliminating the moral opprobrium that
has traditionally attached to homo conduct
 Let me be clear that I have nothing against homos, or any other group, promoting their agenda through normal democratic means.
o But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste
that knows best.
Dissent (Justice Thomas)
 I write separately to note that the law before the Court today “is uncommonly silly.” – Giswold (Stewart J., dissenting).
o Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly
situated as I “can find neither in the Bill of Rights not any other part of the Constitution a general right of privacy,” or as the
Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions.”

THE MEANING AND IMPLICATIONS OF LAWRENCE

 22
2. Due process vs. equal protection for claims of gay rights
 The comparison of due process and equal protection, as a source of rights for gay and lesbian people, also turns on how sexual
orientation is defined.
o Consider the view that “the situation of gay people provokes an ‘analogical crisis,’ because in some ways it involves
regulation of particular acts in which gay people engage, and so seems most amenable to analysis under the liberty prong of
the due process clause, while in other ways it involves regulation of a group of people who are defined not so much by what
they do in the privacy of their bedrooms, but by who they are in the public sphere.” – Karlan, “Loving Lawrence” (2004)
 The Court’s opinion in Lawrence may reflect a recognition by Justice Kennedy that a narrow decision under the Equal Protection
Clause would have been inadequate without a substantial die process dimension, and that the two strands were intertwined like a
double helix.
4. Use of comparative constitutional law
 Justice Kennedy’s opinion in Lawrence, for the first time in a SCOTUS majority opinion, cited with approval an authority from
European law.
o According to Justice Kennedy, it was important to take judicial notice of the laws throughout the larger Western civilization
of which the US is a part because there was nothing to suggest that the governmental interest in proscribing such conduct was
more compelling in this country than in the others.
5. Lawrence and same-sex marriage
 Justice Kennedy pointedly noted that its decision invalidating a same-sex sodomy law on due process grounds “does not involve
whether the government give formal recognition to any relationship that homo persons seen to enter.”
o Just 5 months after Lawrence was handed down, the Supreme Judicial Court of MA held that the state’s limitation of
marriage to that between a man and a woman violated both the Due Process and Equal Protection clauses of the state
constitution, making MA the first state in the nation with legal same-sex marriage.
o 10 more states, plus the DOC, followed over the next ten years.

US v. Windsor – SCOTUS – 2013 (Justice Kennedy) (PG 572)

Facts
 In 1996, Congress enacted the Defense of Marriage Act (DOMA).
 Section 3 of DOMA provides as follows:
o In determining the meaning of any Act of Congress, or of any other ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the US, the word “marriage” means only a legal union between one man and one
woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
 The enactment’s comprehensive definition of marriage for purposes of all federal statutes does control over 1,000 federal laws in
which marital or spousal status is addressed as a matter of federal law.
 Edith Windsor and Thea Spyer met in NYC in 1963 and began a long-term relationship
o They registered as domestic partners when NYC gave that right to same-sex couples in 1993.
 Concerned about Spyer’s health, the couple made the 2007 trip to Canada for their marriage, but they continued to reside in NYC
o The state of NY deems their Ontario marriage to be a valid one.
 Spayer died in in February 2009l, and left her entire estate to Windsor.
o Due to DOMA, Windsor did not qualify for the marital exemption from he federal estate tax, which excludes from taxation
“any interest in property which passes or has passed from the decedent to his surviving spouse.”
 Windsor paid $363,053 in estate taxes and sought a refund.
o The IRS denied the refund.
Issue
 Does DOMA violate the guarantee of equal protection as applied to the Federal Government through the Fifth Amendment?
Reasoning
 The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental,
came to be seen in NY and certain other States as an unjust exclusion.
 By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the
separate States.
o Through other federal statutes establish the constitutionality of limited federal laws that regulate the meaning of marriage in
order to further federal policy, DOMA has a far greater reach; for it enacts a directive applicable to over 1,000 federal statues
o The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relation with
respect to the “protection of offspring, property interests, and the enforcement of marital responsibilities.”
 Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are
uniform for all married couples within each State.
o Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the
Constitution because it disrupts the federal balance.
 DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define
marriage.
 NY’s actions were without a proper exercise of its sovereign authority within out federal system, all in the way that the Framers of the
Constitution intended,
o Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can
form “but one element in a personal bond that is more enduring.” – Lawrence.
 23
o For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status
 This status is a far-reaching legal acknowledgement of the intimate relationship between two people, a relationship
deemed by the state worthy of dignity in the community of equal with all other marriages.
 The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular
group cannot” justify disparate treatment of that group
o DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates
to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriage.
 The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a
dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute.
o It was its essence.
 The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that
heterosexuality better comports with traditionally (especially Judeo-Christian) morality.
 Were there any doubt of this far-reaching Purpose, the title of the Act confirms it: The Defense of Marriage Act.
 DOMA’s principal purpose is to impose inequality, not for other reasons like governmental efficiency
o DOMA undermines both the public and the private significance of state-sanctioned same-sex marriages; for it tells those
couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.
o The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, and whose
relationship the State has sought to dignify.
 And it humiliates tens of thousands of children now being raised by same –sex couples.
 Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways
o By its great reach, DOMA teaches many aspects of married and family life, from the mundane to the profound
o For certain married couples, DOMA’s unequal effect are even more serious.
 DOMA also brings financial harm to children of same-sex couples.
 It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-
sex spouses.
Holding
 DOMA seeks to injure the very class of NY seeks to protect and by doing so it violates basic due process and equal protection
principles applicable to the Federal Government
 The federal statute is invalid, for no legitimate purposes overcomes the purpose and effect to disparage and to injure those whom the
State, by its marriage laws, sought to protect in personhood and dignity.
Dissent (Chief justice Roberts)
 Interests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been
adopted in every state in our Nation, and every nation in the world.
 The majority sees a more sinister motive, pointing out that the federal Government has generally (though not uniformly) deferred to
state definitions of marriage in the past.
o That the Federal Government treated this fundamental question differently than it treated variations over consanguinity or
minimum age is hardly surprising – and hardly enough to support a conclusion that the “principle purpose” of the 342
Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm
 The court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise
of their “historic and essential authority to defined the marital relation” may continue to utilize the traditional definition of marriage.
Dissent (Justice Scalia, Thomas, Chief Justice Roberts (to part I))
 There are many remarkable things about the majority’s merits holding
o The first is how rootless and shifting its justifications are.
o Equally perplexing are the opinion’s references to “the Constitution’s guarantee of equality.”
 In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review
this classification only for its rationality.
 As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms.
o However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many
perfectly valid – indeed, downright boring – justifying rationales for this legislation.
 To choose just one of these defendants’ arguments, DOMA avoids difficult choice-of-law issues that will not arise
absent a uniform federal definition of marriage
 The penultimate sentence of the majority’s opinion is a naked declaration that “this opinion and its holding are confined” to those
couples “joined in same-sex marriage made lawful by the State.”
o In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond
mistaking by today’s opinion
o By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every
challenger to a state law restricting marriage to its traditional definition.
Dissent (Justice Alito, Thomas)
 Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of
marriage and the family can have profound effects
o The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.
o And judges are certainly not equipped to make such an assessment
 The Constitution simply does not speak to the issue of same-sex marriage.
o In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own
destiny.
 24
 By asking the court to strike down DOMA as not satisfying some form of heightened scrutiny, Windsor and the US are really
seeking to have the Court resolve a debate between two competing views of marriage.
o The first and older view, which I will call the “traditional” or “conjugal” view, sees marriage as an intrinsically opposite-sex
institution.
o The other, newer view is what I will call the “consent-based” vision of marriage, a vision that primarily defines marriage as
the solemnization of mutual commitment – marked by strong emotional attachment and sexual attraction – between two
persons.
 The Constitution does not codify wither of these views of marriage (although I suspect it would have been hard at the time of the
adoption of the Constitution or the 5th Amendment to find Americans who did not take the traditional view for granted).
 Because our constitutional order assigns the resolution of questions of this nature to the people, I would not presume to enshrine either
vision of marriage in our constitutional jurisprudence.

THE MEANING AND IMPLICATIONS OF WINDSOR

2. Lawrence and Windsor: differing conceptions of dignity

 Lawrence conceptualized dignity as inherent in the individual
 Windsor, by contrast, understood dignity as a status conferred by the state on particular relationships; DOMA thus infringed a dignity
interest that the state had created.

Obergefell v. Hodges – SCOTUS – 2015 (Justice Kennedy) (PG 581)

Issue
 Is same sex marriage guaranteed by the 14th Amendment to the Constitution via liberty and/or equal protection?
Reasoning
 From their beginning to their most recent stage, the annals of human history reveal the transcendent importance of marriage
o Rising from the most basic humans needs, marriage is essential to out most profound hopes and aspirations.
o Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together.
 That history is the beginning of these cases
o The respondents say it should be the end as well.
 Marriage, in their view, is by its nature a gender-differentiated union of man and woman
 This view has long been held and continues to be held in good faith by reasonable and sincere people here
and throughout the world.
o The petitioners acknowledge this history but contend that these cases cannot end there.
 Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect and need for its
privileges and responsibilities.
 The history of marriage is one of both continuity and change
o That institution even as confined to opposite-sex relations has evolved over time.
 For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial
concerns; but by the time of the nation’s founding it was understood to be a voluntary contract between a man and a woman.
o As women gained legal, political and property rights, and as society began to understand that women have their own equal
dignity, the law of coverture was abandoned.
 It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners
o The Court, like many institutions, has made assumptions defined by the world and time of which it is a part
o Still, in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic
reasons why the right to marry has been long protected.
 A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of
individual autonomy.
o The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression,
intimacy, and spirituality.
 A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike
any other in its importance to the committed individuals (Griswold).
 A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning form related rights of
childrearing, procreation, and education.
o Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry.
 Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing
their families are somehow lesser
 Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.
o Just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and
material benefits to protect and nourish the union.
o There is no difference between same- and opposite-sex couples with respect to this principle
 It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.
 The right of same-sex couples to marry that is part of the liberty promised by the 14 th Amendment is derived, too, form that from that
Amendment’s guarantee of the equal protection of the laws.
o The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent
principles.
 25
 This interrelation of the two principles furthers our understanding of what freedom is and must become
o Lawrence drew upon principles of liberty and equality to define and protect the rights of gays and lesbians
 This dynamic also applies to same-sex marriage
o The marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded
to opposite-sex couples and are barred from exercising a fundamental right.
Holding
 The Equal Protection Clause, like the Due Process Clause, prohibits an unjustified infringement to the fundamental right to marry
 Same-sex couples may exercise the right to marry.
Dissent (Justice Scalia, Thomas)
 Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the 9 lawyers on the
Supreme Court
o This practice of Constitutional revision by an unelected committee of 9, always accompanied (as it is today) by extravagant
praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in
the Revolution of 1776; the freedom to govern themselves.
o A system of government that makes the People subordinate to a committee of 9 unelected lawyers does not deserve to be
called a democracy.
 The strikingly unrepresentative character of the body of voting on today’s social upheaval would be irrelevant if they were functioning
as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood
to proscribe the traditional definition of marriage.
 The opinion’s shadowy profundities are often profoundly incoherent
o The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law
 With each decision of ours that takes form the People a question properly left to them – with each decision that is unabashedly based
not on law, but on the “reasoned judgment” of a bare majority of this Court – we move one step closer to being reminded of our
impotence.
Dissent (Chief Justice Roberts, Scalia, Thomas)
 Petitioners contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-
sex couples
o That position has undeniable appeal
o But this Court is not a legislature
 Under the Constitution, judges have power to say what the law is, not what it should be
o Stealing this issue from the people’s will for many cast a cloud over same-sex marriage, making a dramatic social change that
much more difficult to accept
 As the majority notes, some aspects of marriage have changed over time,
o These changes did not, however, work any transformation in the core structure of marriage as the union between a man and a
woman
o The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of
marriage has endured.
 The majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that
characterized discredited decisions such as Lochner.
 Neither Lawrence nor any other precedent in the privacy line of cases supports the right that petitioners assert here.
o Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit
 One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two
people.
o Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater
than one from a two-person union to plural unions, which have deep roots in some cultures around the world.
 Petitioners contend that the Equal Protection Clause requires their States to license and recognize same-sex marriages
o The marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and
same-sex couples is rationally related to the States’ legitimate state interest in preserving the traditional institution of
marriage.
Dissent (Justice Thomas, Scalia)
 The majority claims these state laws deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resemblance
to any plausible meaning of that word as it is used in the Due Process Clause.
 Both of the Constitution’s Due Process Clauses reach back to the Magna Carta
o William Blackstone referred to the provision as protecting the “absolute rights of every Englishmen.”
o The Framers drew heavily upon Blackstone’s formulation, adopting provisions in early State Constitutions that replicated
Magna Carta’s language, but were modified to refer specifically to “life, liberty, or property.”
 To the extent the Framers would have recognized a natural right to marriage that fell within the broader definition of liberty, it would
not have included a right to governmental recognition and benefits
 The majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples
o The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government
would be incapable of bestowing dignity.
 The government cannot bestow dignity, and it cannot take it away.
Dissent (Justice Alito, Scalia, Thomas)
 26
 If the issue of same-sex marriage had been left to the people of the States, if is likely that some States would recognize same-sex
marriage and others would not.
 By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have
traditional ideas.

THE MEANING AND IMPLICATIONS OF OBERGEGELL

1. Due process and equal protection: a “profound connection.”

 Obergefell made explicit what Lawrence and Windsor implied: rights, and in particular rights for gays and lesbians, can flow jointly
from the Due Process Clause and Equal Protection Clause, with those two provisions acting in a synergistic way.
o Notice that the Corut’s opinion spends little time on the government interests at stake in same-sex marriage bans
 Could Obergefell have reached the same result by invoking equal protection alone?
o Consider the fact that a state can respond to a pure equal protection decision in one of two ways: by expanding access to the
status or right at issue and providing it to both the formerly excluded group and the formerly included group, or by
contracting access and denying the benefit to both groups.
 Using due process instead of equal protection compels a state to expand the right.
3. The court as educator
 The court’s opinion places weight on the role that law and constitutional values play in educating the public

SUBSTANTIVE DUE PROCESS AND RIGHTS OVE THE TIMING AND CIRCUMSTNACES OF ONE’S DEATH

Cruzan v. Director, Missouri Dept. of Health – SCOTUS – 1990 (Chief Justice Rehnquist) (PG 590)

PH and Outcome/Facts
 Since 1983, when the then 25-year-old Nancy Beth Cruzan suffered severe injuries in an automobile accident, she had been in a
persistent vegetative state.
o She exhibited some motor reflexes but no indications of significant cognitive functions.
 When it became apparent that Cruzan had virtually no chance of regaining her cognitive faculties, her parents sought to discontinue
tubal feeding
 The Missouri Trial Court ordered the removal of the tube.
 The closely divided Missouri Supreme court reversed the trial court ruling.
 SCOTUS affirms the Missouri Supreme Court.
Issue
 Does the Constitution prohibit Missouri from choosing the ruling that it did?
Reasoning
 Whether respondent’s constitutional rights have been violated must be determined by balancing his liberty interests against the
relevant state interests.
 An incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any
other right.
 Missouri requires that evidence of the incompetent’s wishes as to the withdrawal of treatment be proved by clear and convincing
evidence
o The question, then, is whether the US Constitution forbids the establishment of this procedural requirement by the State
 We hold that it does not.
 MO relies on its interest in the protection and preservation of human life, and there can be no gainsaying this interest
o We do not think a state is required to remain neutral in the face of an informed and voluntary decision by a physically0able
adult to starve to death.
 We believe MO may legitimately seek to safeguard the personal element of this choice through the imposition of heightened
evidentiary requirements.
o A state is entitled to guard against potential abuses
 Finally, we think a State may properly decline to make judgments about the “quality” of life that a particular individual may enjoy.
 The more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision.
o We believe that MO may permissibly place an increased risk of an erroneous decision on those seeking to terminate an
incompetent individual’s life-sustaining treatment.
Holding
 We conclude that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue
nutrition and hydration of a person diagnosed to be in a persistent vegetative state.
Concurrence (Justice O’Connor)
 I agree that a protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions, and that the
refusal of artificially delivered food and water is encompassed within that liberty interest.
o I do not find, however, a violation of that interest here.
Concurrence (Justice Scalia)
 The federal courts have no business in this field
 27
o While I agree with the Court’s analysis today, I would have preferred that we announce, clearly and promptly, that the
federal courts have no business in this field; that American law has always accorded the State the power to prevent, by force
if necessary, suicide.
Dissent (Justice Brennan, Marshall, Blackmun)
 Nancy Cruzan is entitled to choose to die with dignity
 The only interest asserted here is a general interest in the preservation of life
o But the State has no legitimate general interest in someone’s life, completely abstracted from the interest of the person living
that life, that could outweigh the person’s choice to avoid medical treatment.
 Asdfasdf
 Cruzan left open the question whether there was a liberty right or “interest” sufficient to invalidate a law with the effect of barring
altogether the assistance of a physician in accelerating one’s death.

Washington v. Glucksberg – SCOTUS – 1997 (Chief Justice Rehnquist) (PG 593)

PH and Outcome
 The en banc court of appeals held that the State’s assisted-suicide ban was unconstitutional
 SCOTUS reverses
Facts
 Washington law provides: “A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to
attempt suicide.”
o “Promoting a suicide attempt” is a felony, punishable by up to 5 years’ imprisonment and up to a $10,000 fine
 At the same time, WA’s Natural Death Act, enacted in 1979, states that the “withholding or withdrawal of life-sustaining treatment” at
a patient’s direction “shall not, for any purpose, constitute a suicide.”
Issue
 Does the liberty specially protected in the Due Process Clause include a right to commit suicide which itself includes a right to
assistance in doing so?
Reasoning
 We begin, as we do in all due-process cases, by examining our Nation’s history, legal traditions, and practices.
o In almost every State – indeed, in almost every western democracy – it is a crime to assist a suicide
 For over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting
suicide.
 For the most part, the early American colonies adopted the common-law approach
o Over time, however, the American colonies abolished the criminal-forfeiture sanction
 This reflected the growing consensus that it was unfair to punish the suicide’s family for his wrongdoing.
o By the time the 14th Amendment was ratified, it was a crime in most States to assist a suicide.
 In recent years, pubic concern and democratic action are therefore sharply focused on how best to preserve dignity and independence
at the end of life, with the result that there have been many significant changes in state laws and in the attitudes these laws reflect.
o Legislators continue for the most part to reaffirm their States’ prohibitions on assisting suicide
 We “have always ben reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in
this unchartered area are scarce and open-ended.”
o We must therefore “exercise the utmost care whenever we are asked to break new ground in this field,” lest the liberty
protected by the due Process Clause be subtly transformed into the policy preferences of the members of this court.
 Our established method of substantive-due-process analysis has two primary focuses:
o First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which
are objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such
that “neither liberty nor justice would exist if they were sacrificed.”
o Second, we have required in substantive due process cases a careful description of the asserted fundamental liberty interest.
 To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy
choice of almost every State.
 Respondents contend that in Cruzan we “acknowledged that competent, dying persons have the right to direct the removal of life-
sustaining medical treatment and thus hasten death,” and that “the constitutional principle behind recognizing the patient’s liberty to
direct the withdrawal of artificial life support applies at least as strongly to the choice to hasten impending death by consuming lethal
medication.”
o Given the common law rule that forced medication was a battery, however, and the long legal tradition protecting the
decision to refuse unwanted medical treatment, our assumption was entirely consistent with this Nation’s history and
constitutional traditions.
 Respondents also rely on Casey.
o But language in Casey suggesting that many of the rights and liberties protected by the Due Process Clause sound in personal
autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so
protected.
 The Constitutional also requires, however, that Washington’s assisted-suicide ban be rationally related to legitimate government
interests.
o This requirement is unquestionably met here.
 First, Washington has an “unqualified interest in the preservation of human life.” – Cruzan
 28
 Relatedly, the State has an interest in preventing suicide, and in studying, identifying, and treating its causes.
o Those who attempt suicide – terminally ill or not – often suffer from depression or other mental disorders.
 Research indicates, however, that many people who request physician-assisted suicide withdraw that request of their
depression and pain and treated.
 The State also has an interest in protecting the integrity and ethics of the medical profession
 The state has an interest in protecting vulnerable groups from abuse, neglect, and mistakes.
 Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary
euthanasia.
 We emphasize that we today reject the Court of Appeals’ specific holding that the statute is unconstitutional “as applied” to a
particular class.
o Our opinion does not absolutely foreclose such a claim.
Holding
 We hold that the Washington statute does not violate the 14 th amendment, either on its face or as applied to competent, terminally ill
adults who wish to hasten their deaths by obtaining medication prescribed by their doctors,”
Concurrence (Justice O’Connor)
 I join the court’s opinions because I agree that there is no generalized right to “commit suicide.”
 In these states a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining
medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death.
 I agree that the State’s interests in protecting those who are not truly competent or facing imminent death, or those whose decisions to
hasten death would not truly be voluntary, are sufficiently weighty to justify a prohibition against physician-assisted suicide.
Concurrence (Justice Stevens)
 Cruzan’s interest in refusing medical care was incidental to her more basic interest in controlling the manner and timing of her death
o Her interest in dignity, and in determining the character of the memories that will survive long after her death is an aspect of
a far broader and more basic concept of freedom that is even older than the common law.
 While I agree with the Court that Cruzan does not decide the issue presented by these cases, Cruzan did give recognition, not just to
vague, unbridled notions of autonomy, but to the more specific interest in making decisions about how to confront an imminent death.
 While I would not say as a categorical matter that these state interests are invalid as to the entire class of terminally ill, mentally
competent patients, I do not foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose
assistance was sought, could prevail in a more particularized challenge.
Concurrence (Justice Souter)
 The question here is whether the WA statute sets up one of those “arbitrary impositions” or “purposeless restraints” at odds with the
due Process Clause of the 14th Amendment.
o This approach calls for a court to assess the relative “weights” or dignities of the contending interests, and to this extent the
judicial method is familiar to the common law.
 First, such a court is bound to confine the values that it recognizes to those truly deserving constitutional stature, either to those
expressed in constitutional text, or those exemplified by “the traditions from which the nation developed,” or revealed by contrast with
“the traditions from which it broke.”
 Second, it is only when the legislation’s justifying principle, critically valued, is so far from being commensurate with the individual
interest as to be arbitrarily or pointlessly applied that the statute must give way.
 First, the argument supporting respondents’ position emphasizes the decriminalization of suicide.
 The second step in the argument is to emphasize that the State’s own act of decriminalization gives a freedom of choice much like the
individual’s option in recognized instances of bodily autonomy
 The third step is to emphasize that respondents base their claim on the traditional right to medical care and counsel, subject to the
limiting conditions of informed, responsible choice of care in other situations in which medical counsel and assistance have been
available as a matter of course.
o In my judgment, the importance of the individual interest here, as within that class of “certain interests” demanding careful
scrutiny of the State’s contrary claim, cannot be gainsaid.
 The State has put forward interests protecting life generally, discouraging suicide even if knowing and voluntary, and protecting
terminally ill patients from involuntary suicide and euthanasia, both voluntary and non-voluntary.
o The third is dispositive for me
 The case for the slippery slope is fairly made out here, not because recognizing one due process right would have a court with no
principled basis to avoid recognizing another, but because there is a plausible case that the right claimed would not be readily
containable by reference to facts about the mind that are matters of difficult judgment, or by gatekeepers who are subject to
temptation, noble or not.
 While I do not decide for all time that respondents’ claim should not be recognized, I acknowledge the legislative institutional
competence as the better one to deal with that claim at this time.
Concurrence (Justice Breyer)
 I believe that Justice O’Connor’s views, which I share, have greater legal significance than the Court’s opinion suggests.
o But I would not reject the respondents’ claim without considering a different formulation
o Irrespective of the exact words used, at a “right to die with dignity’s” core would lie personal control over the manner of
death.
 Respondents argue that one can find a “right to die with dignity” by examining the protection the law has provided for ruled, but not
identical, interests relating to personal dignity, medical treatment, and freedom from state-inflicted pain.
 I do not believe, however, that this Court need or now should decide whether or not such a right is “fundamental.”
 29
o That is because, in my view, the avoidance of severe physical pain (connected with death) would have to comprise an
essential part of any successful claim and because, as Justice O’Connor points out, the laws before us do not force a dying
person to undergo that kind of pain.

THE MEANING AND IMPLICATIONS OF GLUCKSBERG

1. Due process methodology

 There are two competing approaches reflected in the Glucksberg opinions
o Chief Justice Rehnquist takes a narrow positivist approach
o By contrast, Justice Souter’s concurrence emphasizes a broader view of privacy of freedom from arbitrary restraint.
2. The right to die and equal protection
 In Vacco v. Quill (1997), the Court held that NY did not violate the Equal Protection Clause by prohibiting assisted suicide while
permitting patients to refuse lifesaving medical treatment.
o Chief Justice Rehnquist wrote for the Court:
 The Equal Protection Clause embodies a general rule that States must treat like cases alike but may treat unlike
cases accordingly.
 We think the distinction between assisting suicide and withdrawing life-sustaining treatment, a distinction widely
recognized and endorsed in the medical profession and in out legal traditions, is both important and logical; it is
certainly rational
 First, when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or
pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication.
 A doctor who assists a suicide, however, “must, necessarily and indubitably, intend primarily that the
patient be made dead.”
 The law has long used actors’ intent or purpose to distinguish between two acts that may have the same
result
 Similarly, the overwhelming majority of state legislatures have drawn a clear line between assisting suicide and
withdrawing or permitting the refusal of unwanted lifesaving medical treatment by prohibiting the former and
permitting the latter
 In Cruzan, we concluded that “the principle that a competent person has a constitutionally protected
liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions,” and we
assumed the existence of such a right for purposes of that case.
 For all these reasons, we disagree with respondents’ claim that the distinction between refusing lifesaving medical
treatment and assisted suicide is “arbitrary” and “irrational.”
o As they had in Glucksberg, Justice O’Connor concurred and Justices Stevens, Souter, Ginsberg and Breyer concurred in the
judgment.
 Justice Stevens noted: “Out holding today does not foreclose the possibility that some applications of the NY statute
may impose an intolerable intrusion on the patient’s freedom.”
3. Challenges left open by Glucksberg and Quill
 Only Justices Scalia, Kennedy, and Thomas joined Chief Justice Rehnquist’s opinion for the Court without qualification.

SECTION II – EQUAL PROTECTION

Chapter 9 – Equal Protection (PG 643)

 The 14th Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”
o The Court has also interpreted this guarantee to apply to the federal government, as an aspect of the 5 th Amendment due
process.
 The Court has subjected all classifications to some kind of requirement of a rational relationship to a legitimate governmental purpose,
but has interpreted equal protection to presume some classifications more likely than others to lack such a justifying relationship.
 In its historical origins, the Equal Protection Clause was directed at racial discrimination against African Americans.
o The Warren Court extended heightened equal protection scrutiny to classifications ranging beyond race, including sex,
alienage and illegitimacy; and to burdens on “fundamental interests” such as voting and court access (but not to food, housing
or education).
 For nonracial classifications, the court has ordinarily read the command of equal protection to require only that difference in treatment
have some minimally rational basis
o The Lochner-era Court, however, rarely used equal protection to strike down economic laws, using due process instead.
 The Court in recent decades has employed roughly 3 tiers of review:
o Strict scrutiny of race determination and its analogues (which the court deems inherently suspect);
o Intermediate scrutiny of sex discrimination (which is in many respects like but in some respects unlike race discrimination);
and
o Rational relationship review for other classifications (including all socioeconomic laws and laws classifying along lines like
age and disability that the Court does not see as inherently suspect
 Strict scrutiny requires hat regulation serve compelling governmental interests and be essential to those interests – i.e., the least
restrictive means.
 30
 Intermediate scrutiny requires that a regulation serve important governmental objectives and be substantially related to
achievement of those objectives
 Rationality review requires only a rational relationship to legitimate ends.

Section 1. Minimum Rationality Review of Economic regulation

 For regulations that do not involve racial classification or other classifications held to warrant heightened scrutiny, the Court has
applied minimal rationality review to determine whether there the regulation bears a rational relationship to a legitimate government
interest

JUDICIAL DEFERENCE TO ECONOMIC REGULATION

2. Deference to means-ends relationships

 In applying minimal rationality review, the Court allows legislatures to act underinclusively, or “one step at a time.”
 In Williamson v. Lee Optical (1955), the Court rejected an equal protection as well as a die process challenge to OK’s scheme for the
regulation of opticians
o Justice Douglas stated:
 Evils in the same field may be of different dimensions and proportions, requiring different remedies.
 Or so the legislature may think
 The prohibition of equal protection goes no further then invidious discrimination
 We cannot say that that point has been reached here.
 In one decision, Morey v. Doud (1957), the Court invalidated an exemption by name of a particular company from a general
regulatory scheme
o The challenged IL law had imposed financial responsibility requirements on businesses issuing money orders but had
explicitly exempted the American Express Company
o Justice Burton’s majority opinion emphasized that the exemption created “a closed class,” and that this grant of an economic
advantage to a named company bore “no reasonable relation” to the purposes of the law
 But in New Orleans v. Dukes (1976), the Court overruled Morey as aberrational and returned to a highly deferential stance toward
economic preferences
o Dukes upheld against an equal protection challenge a 1972 New Orleans provision that exempted pushcart food vendors who
had continually operated the same business for 8 years prior to January 1, 1972” from a prohibition against such vendors in
he French Quarter
o The Court emphasized that the grandfather clause was “solely an economic regulation aimed at enhancing the vital role of the
French Quarter’s tourist-oriented charm in the economy of New Orleans.”
 The Court rejected the lower court’s holding that the grandfather provision “failed even the rationality test” and
found instead that “the city’s classification rationally furthers the purpose which the city had identified as its
objective in enacting the provisions, that is, ‘preserving the appearance and custom valued by the Quarter’s residents
and attractive to tourists.’”
3. Exception for classification based on “animus”
 US Dept. of Agriculture v. Moreno (1973) departed from this deferential standard
o The Court in Moreno struck down a provision of the federal food stamp program limiting assistance to “households” defined
as groups of related persons.
 The law recited the congressional purpose as “raising levels of nutrition among low-income households” and
increasing consumption of food so as to “strengthen out agriculture economy.”
o Justice Brennan’s majority opinion found the exclusion of “unrelated persons” to be “clearly irrelevant” to these purposes
and thus “wholly without any rational basis.”
 He noted that “For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the
very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate
governmental interest.”
 In New York City Transit Authority v. Beazer (1979), Justice Stevens majority opinion upheld the exclusion of all methadone users
from any Transit Authority (TA) employment
o Justice Stevens viewed the exclusionary policy as “supported by the legitimate inference that as long as a treatment program
(or other drug use) continues, a degree of uncertainty persists.”
o Justice White’s dissent, joined by Marshall, insisted that, given the facts in the record, “the rule’s classification of
successfully maintained persons as dispositively different from the general population is left without any justification and,
with its irrationality and invidiousness thus uncovered, must fall before the Equal Protection Clause.”

SHOULD RATIONALITY REVIEW BE STRICTER? (PG 656)

 Three theories exist

o The first suggests heightened judicial concern for all minorities who have an inadequate say in the governmental process
whether or not a classification disadvantaging them in suspect
 31
o The second theory emphasizes the Constitution’s roots in civic republicanism and associated notions of civic virtue and
argues that it is impermissible to award opportunities to one group rather than another simply on the basis of “naked
preferences.”
o The third argues that the Court should engage in more serious, less deferential review in order to discipline legislatures and
assure that the legislative means genuinely promote articulated governmental purposes
1. Judicial solicitude for economic minorities?
 When the court employs deferential rationality review, its implicit model of socioeconomic legislation is that economic factions will
not become entrenched over time, and that gains and losses will even out.
2. Civic Republicanism and “naked preferences”
 According to the pluralist conception of democracy, a key function of government is to distribute resources to competing interest
groups based on their political strength, so that an open preference by the legislature for one group over another is ordinarily
unproblematic
 On a civic republican conception of democratic government, by contrast, legitimate governmental action must respond to something
other than “naked preferences”
o This approach would use rationality review “to ensure that classifications rest on something other than a naked preference for
one person or group over another.
 The court has made clear in rationality cases that the government must be able to invoke some public value that the classification at
issue can be said to serve.
3. Rationality review “with bite”
 Gunther, in suggesting that more serious scrutiny under the “mere rationality” standard could be achieved by viewing equal protection
“as a means-focused, relatively narrow, preferred ground of decision in a broad range of cases.”
o It would have the Court “less willing to supply justifying rationales by exercising its imagination.”

Section 2. Race Discrimination

THE UNCONSTITUTIONALITY OF RACIAL SEGREGATION

1. Early interpretation of the 14th Amendment

 The 14th Amendment guarantee of equal protection was expected by its framers to be enforced primarily by Congress
 In Strauder v. West Virginia (1880), an African-American defendant, was convicted of murder by a jury from which African-
Americans had been excluded because of an explicit command of a state law providing that “all white male persons who are 21 years
of age and who are citizens of this State shall be liable to serve as jurors
o Strauder unsuccessfully sought to remove his case to federal court
 The court held that removal should have been granted and found the law unconstitutional
o Justice Strong stated:
 What is equal protection but declaring, in regard to the colored race, for whose protection the amendment was
primarily designed, that no discrimination shall be made against them by law because of their color?
 That the WV statute respecting juries is such a discrimination ought not to be doubted.
 The very fact that colored people are singled out and expressly denied by a statute all right to participate in the
administration of the law, as jurors, because of their color, is practically a brand upon them, affixed by the law, an
assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to
individuals of the race that equal justice.
2. “Separate but equal”
 The Civil Rights Cases (1883) barred application of civil rights laws to purely private action.
o “Black codes” and other devices for racial segregation arose in the South.
 In Plessy v. Ferguson (1896), the Court sustained an 1890 Louisiana law that required “equal but separate accommodations” for
“white” and “colored” railroad passengers.
o Plessy, the challenger, alleged that he was “7/8 Caucasian and 1/8 African blood; that the mixture of colored blood was not
discernable in him; and that he was entitled to every right of the white race.”
o Justice Brown Stated:
 The object of the 14th Amendment was undoubtedly to enforce the absolute equality of the two races before the law,
but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce
social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to each
other.
 The distinction between laws interfering with the political equality of the negro and those requiring the
separation of the two races in schools, theaters, and railway carriages has been frequently drawn by this
Court.
 Every exercise of 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 legislature 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.
o Gauged by this standard, we cannot say that this law is unreasonable.
 32
 We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced
separation of the two races stamps the colored race with a badge of inferiority
 If this be so, it is not by reason of anything found in the act
 We cannot accept this proposition
 If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual
appreciation of each other’s merits, and a voluntary consent of individuals.
o The first Justice Harlan dissented
 Everyone knows that the law had its origin in the purpose, not so much to exclude white persons from railroad cars
occupied by blacks, as to exclude colored people from coaches assigned to white persons.
 The white race deems itself to be the dominant race in this country.
 So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the
principles of constitutional liberty.
 In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made in
the Dred Scott case
 The present decision will encourage the belief that it is possible, by means of state enactments, to defeat the
beneficent purposes which the people had in view when they adopted the recent amendments to the
Constitution
 We boast of the freedom enjoyed by our people above all other peoples.
 But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of
servitude and degradation upon a large class of out fellow citizens – our equals before the law.
 There is a race so different from our own that we do not permit those belonging to it to become citizens of the US
 I allude to the Chinese race
 But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the
US, while citizens of the black race cannot.
3. Segregation in public education
 Legal challenges to officially mandated segregation began with efforts to show that the “separate but equal” doctrine of Plessy was
vulnerable in the context of education.
 The first in the sequence of school segregation cases that culminated in Brown was Missouri ex rel. Gaines v. Canada (1938).
o Gaines, a black applicant, had been refused admission to the University of Missouri Law School because of his race.
o MO’s defense to his suit for admission was that, pending the establishment of a black law school in the state, it would pay
Gaines’s tuition in an out-of-state school
 Chief Justice Hughes concluded that the State was obligated to furnish Gaines “within its borders facilities for legal
education substantially equal to those which the State there offered for persons of the white race.
 In the absence of such facilities, Gaines was entitled to be admitted to the existing state law school
 In Sipuel v. Oklahoma (1948), the Court reaffirmed the principles in Gaines
 Sweatt v. Painter (1950), required the admission of blacks to the University of Texas Law School even though the state had recently
established a law school for blacks
o Chief Justice Vinson found no “substantial equality in the educational opportunities offered to white and black law students
by the State.
 “In terms of the number of faculty, variety of courses and opportunity for specialization, size of the student body,
scope of the library, availability of law review and similar activities, the University of TX Law School is superior.”
 McLaurin v. Oklahoma State Regents (1950), involved a balck student who had been admitted to a state university’s graduate
program not offered at the state’s black school, but had been required to sit in separate sections in or adjoining the classrooms, library
and cafeteria facilities.
o Chief Justice Vinson’s opinion found that the restrictions impaired the “ability to study, to engage in discussions and
exchange views with other students and, in general, to learn his profession.”
Brown v. Board of Education [Brown I] – SCOTUS – 1954 (Chief Justice Warren) (PG 663)

Facts
 In each of these cases, minors of the Negro race seek the aid of the courts in obtaining admissions to the public schools of their
community on a non-segregated basis.
 In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation
according to race.
Issue
 Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible”
factors may be equal, deprive the children of the minority group of equal educational opportunities?
Reasoning
 Reargument was largely devoted to the circumstances surrounding the adoption of the 14 th Amendment in 1868.
o This discussion and our own investigation, at best, are inconclusive
 The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions
among “all persons born or naturalized in the United States.
 What others in Congress and state legislatures had in mind cannot be determined with any degree of certainty.
 Education of white children was largely in the hands of private groups
o Education of Negroes was almost nonexistent, and practically all of the race were illiterate.
 33
o The effect of the Amendment on Northern States was generally ignored in the congressional debates.
 In the first cases in this court construing the 14 th Amendment, the court interpreted it as prescribing all state-imposed discrimination
against the Negro race.
o Here, unlike Sweatt, there are findings below that the Negro and white schools involved have been equalized or are being
equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other “tangible” factors
 We must look to the effect of segregation itself on public education.
o We must consider public education in the light of its full development and its present place in American life throughout the
Nation
 Education is the very foundation of good citizenship
o It is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in
helping him to adjust normally to his environment
 Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on
equal terms.
 To separate children from others of a similar age and qualifications solely because of their race generates a feeling of inferiority as to
their status in he community that may affect their hearts and minds in a way unlikely to be undone.
o Segregation with he sanction of law, therefore, has a tendency to retard the educational and mental development of negro
children and to deprive them of some of the benefits they would receive in a racially integrated school system.
 Any language in Plessy contrary to this finding is rejected.
Holding
 We conclude that in the field of public education the doctrine of “separate but equal” has no place.
 Separate educational facilities are inherently unequal.

THE MEANING AND IMPLICATIONS OF BROWN V. BOARD

1. Extension of desegregation to the federal government

 In Bolling v. Sharpe (1954), decided on the same day as Brown I, the Court held that racial segregation in the DOC public schools
violated the Due Process clause of the Fifth Amendment.
o Chief Justice Warren stated:
 The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,”
and therefore, we do not imply that the two are always interchangeable phrases.
 Classifications based solely on race must be scrutinized with particular care, since they are contrary to our
traditions and hence constitutionally suspect.
 Segregation in public education is not reasonably related to any proper governmental objective, and this it
imposes on Negro children of the DOC a burden that constitutes an arbitrary deprivation of their liberty in
violation of due process.
2. Segregation in other public facilities
 Soon after Brown, the Court found legally mandated segregation in public facilities unconstitutional in contexts other than education
in brief per curiam orders
 Not until Johnson v. Virginia (1963) did the Court state: “It is not longer open to question that a State may not constitutionally require
segregation of public facilities.”
3. The theory of Brown v. Board
 There are 4 possible interpretations of chief Justice Warren’s oracular opinion:
a. Color-blindness
 Race is never a permissible basis on which to distribute public benefits or burdens
b. Caste
 Race is an impermissible basis for distributing public benefits and burdens when it has the social and psychological effect of
stigmatizing or subordinating a racial group
c. White Supremacy
 Segregation laws were the impermissibly tainted products of white supremacy, i.e., legislative processes in which white voters
predominated and blacks were largely disenfranchised.
d. Integration
 Was Brown based on an empirical supposition that integrated schools would produce better educational results for black
schoolchildren?
4. Brown and the court’s internal drama
 Having heard the case argued in 1952, the Court was unable to reach consensus, though to be desirable before a decision of such
moment
 In September 1953, Chief Justice Vinson died.
 President Eisenhower appointed former CA governor Earl Warren as Chief Justice, and Warren, who as AG of CA had supported the
internment of Japanese-Americans during WWII, set his considerable political skills to convince the other justices to reach a
unanimous result in Brown.
6. Brown and sociology and psychology
 In Parents Involved in Cmty. Sch. V. Seattle Sch. Dis. No. 1 (2007), Justice Thomas expressed skepticism about the educational
value of school integration:
o Even after Brown, some schools with predominately black enrollment have achieved outstanding educational results
 34
 Given this tenuous relationship between forced racial mixing and improved educational results for black
children, the dissent cannot plausibly maintain that an educational element supports the integration interest, let
alone makes it compelling.
7. Brown and the social meaning of Segregation
 A prominent article shortly after Brown questioned whether the decision, however desirable its outcome, was based on neutral
principles, given that segregation symmetrically affected blacks and whites alike.
8. A former KKK member as a leading voice for desegregation
 Justice Hugo Black, who had joined the KKK as a young, ambitious politician, became the unlikely leading voice for desegregation.
 In the end, there was one way for black to prove, once and for all, that he was not a racist: to vote definitively to end segregation.”
o As a result, Black became “the strongest internal voice on the Supreme Court calling for a unilateral end to segregation.”

IMPLEMENTING BROWN V. BOARD (PG 669)

1. Brown’s remedial aftermath

 The decision in Brown v. Board of Education [Brown II] (1955), recognizing the possibility of resistance, allowed remedies to
proceed “with all deliberate speed.”
 Chief Justice Warren delivered the opinion of the court:
o Full implementation of these constitutional principles may require solution of varied local school problems.
o Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard
these cases can best perform this judicial appraisal.
 Accordingly, we believe it appropriate to remand the cases to those courts.
o At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory
basis
 To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school
systems operated in accordance with the constitutional principles set forth in Brown I.
o While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and
reasonable start toward full compliance with Brown I
 The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent
with good faith compliance at the earliest practicable date.
 They will also consider the adequacy of any plans the defendants may propose to meet these problems and to
effectuate a transition to a racially nondiscriminatory school system
 During this period of transition, the courts will retain jurisdiction of these cases.
 After its promulgation of general guidelines in Brown II, the court remained silent about implementation for several years
o The decision indeed met with massive resistance, often violent, which the Court condemned in Cooper v. Aaron (1958),
signing an opinion reaffirming the Brown principle in the face of official resistance in Little Rock, AR.
 Integration of the public schools did not meaningfully accelerate until after the enactment of the Civil Rights Act of 1964, which
conditioned the receipt of federal funds for education on states’ compliance with desegregation.
2. Eliminating the vestiges of de jure segregation
 In Green v. County School Board (1968), for the first time since Brown II, the court issued a detailed opinion on the question of
remedies.
o The school district argued that good faith “freedom of choice” plans adequately complied with the Brown mandate.
o The unanimous court found the plan inadequate in complying with desegregation requirements.
o Justice Brennan wrote the opinion:
 What is involved here is the question whether the Board has achieved the “racially nondiscriminatory school
system” Brown II held must be effectuated.
 School Boards then operating state-compelled dual systems were clearly charged with the affirmative duty
to take whatever steps might be necessary to convert to a unitary system in which racial discrimination
would be eliminated root and branch
 School officials are required to fashion steps which promise realistically to convert promptly to a system without a
“white” school and a “Negro” school, but just schools.
 In large Southern cities with substantial residential segregation – as in the North – geographic zoning along could not substantially
alter the racial composition of schools
 Swann v. Charlotte-Mecklenburg Board of Education (1971) arose in the school district covering the Charlotte, NC metro area,
which had been wholly segregated, de jure, at the time of Brown in 1954.
o By 1969, about half of the black students were in formerly white schools, but the remainder attended virtually all-black
schools.
o After Green, the DC ordered the school authorities to prepare a more effective plan.
 In a unanimous decision by chief Justice Burger, affirmed the DC’s order.
 Once a right and a violation have been shown, the scope of the DC’s equitable powers to remedy past
wrongs is broad.
3. Desegregation outside the South
 In Keyes v. School District (1973), the court’s first decision on school desegregation in a Northern or Western district, Justice
Brennan’s majority opinion purported to adhere to the de jure-de facto distinction.
o But he set forth criteria that would facilitate a finding of purposeful discrimination in Northern districts and that would permit
court orders for district-wide remedies to rest on findings of intentional discrimination in only part of the district.
 35
o Justice Rehnquist dissented, concluding:
 To require that a genuinely “dual” system be disestablished, in the sense of the assignment of a child to a particular
school is not made to depend on his race, is one thing
 To require that school boards affirmatively undertake to achieve racial mixing in schools where such mixing is not
achieved in sufficient degree by neutrally drawn boundary lines is quite obviously something else.”
4. Limiting Inter-district remedies
 In Milliken v. Bradley (1974), the Court reversed lower court orders that had directed busing across district lines between the city of
Detroit, when de jure segregation had been found, and suburban areas, where it had not.
o Chief Justice Burger concluded:
 Absent an inter-district violation there is no basis for an inter-district remedy.
 Before the boundaries of separate autonomous school districts may be set aside by consolidating the separate units
for remedial purposes or by imposing a cross-district remedy, it must first be shown that racially discriminatory acts
of the state or local school districts, or of a single school district, have been a substantial cuase of inter-district
segregation
o Justice White’s dissent, joined by Justices Douglas, Brennan and Marshall, objected to the court’s protection of the state from
more “undue administrative inconvenience.”
5. Limiting the Federal Courts’ remedial powers
 In Missouri v. Jenkins (1990), the court limited the power of the federal courts, in implementing desegregation, to impose fiscal
burdens on state and localities.
o Under a desegregation plan approved by the DC, expenditures of over 4450 million were necessary.
o Various state law provisions presented the school district from raising taxes to finance the 25% share of desegregation costs
for which the district court held it liable
 The DC ordered a significant increase in the district’s property tax rates
o Justice White’s majority opinion found that the district court’s order “contravened the principles of federal/state comity that
must govern the exercise of the court’s equitable discretion in this area.”
 In Missouri v. Jenkins (1995) the Court held that a federal court could not order salary increases and remedial education programs on
the ground that “student achievement levels were still at or below the national norms at many grade levels/”
o Chief Justice Rehnquist reiterated that: “the nature and scope of the remedy are to be determined by the violation, which
means that federal-court decrees must directly address and relate to the constitutional violation itself.”
6. Terminating long-standing decrees
 In Board of Education of Oklahoma city v. Dowell (1991), OKC had at the time of Brown an explicitly segregated school system
o In 1972, the DC ordered system-wide busing
o In 1977 the court entered an order terminating the case and ending its jurisdiction.
o Challengers argued that the new plan in 1984 would reinstitute segregation
 The court of appeals held that the 1972 decree remained in force.
o SCOTUS reversed, with chief Justice Rehnquist writing:
 Dissolving a desegregation decree ager the local authorities have operated in compliance with it for a reasonable
period of time recognizes that “necessary concern for the important values of local control of public school
systems” dictates that a federal court’s regulatory control of such systems not extend beyond the time required to
remedy the effects of past intentional discrimination.
o Justice Marshall, Blackmun and Stevens dissented, chastising the majority for suggesting that after 65 years of official
segregation, “13 years of desegregation was enough.”

ELIMINATING OTHER VESTIGES OF SEGREGATION (PG 673)

1. Interracial Cohabitation
 In McLaughlin v. Florida (1964) the court (Justice White) invalidated a criminal adultery and fornication statute prohibiting
cohabitation by interracial unmarried couples.
o We deal here with a classification based upon the race of the participants.
o Our strong policy renders racial classifications “constitutionally suspect” and subject to the “most rigid scrutiny”
 Our inquiry, therefore, is whether there clearly appears in the relevant materials some overriding statutory purpose
requiring the proscription of the specified conduct when engaged in by a white person and a Negro, but not other
wise
 Without such justification the racial classification here is reduced to an invidious discrimination forbidden by equal
protection.

Loving v. Virginia – SCOTUS – 1967 (Chief Justice Warren) (PG 674)

Facts
 Mildred Loving, an African-American woman, married Richard Loving, a white man
 Married in the DOC, they returned to VA, where they were convicted of violating VA’s criminal ban on miscegenation
 The Trial judge suspended their one-year jail sentences on the conditions that they leave the state and not return to VA together for 25
years
 SCOTUS Reversed
Issue
 36
 Does the statutory scheme adopted by VA to prevent marriages between persons solely on the basis of racial classifications violate
the 14th Amendment?
Reasoning
 The State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial
marriage, these statutes despite their reliance on racial classifications, do not constitute an invidious discrimination
 We have said that although these historical sources “cast some light” they are not sufficient to resolve the problem; “at best, they are
inconclusive.” – Brown b. Board
o We have rejected the proposition that the debates in the 39 th Congress or in the State legislatures which ratified the 14 th
Amendment supported the theory which the requirement of equal protection of the laws is satisfied by penal laws defining
offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished.
 There can be no question but that VA’s miscegenation statutes rest solely upon distinctions drawn according to race.
o At the very least, equal protection demands that racial classifications, especially suspect in criminal statutes, be subjected to
the “most rigid scrutiny,” and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of
some permissible state objective, independent of the racial discrimination which it was the object of the 14th Amendment to
eliminate.
 The fact that VA prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on
their own justifications, as measures designed to maintain White Supremacy.
o While VA prohibits whites from marrying any nonwhite, Negros, Orientals, and any other racial class may intermarry
without statutory interference
Holding
 Because we reject the notion that the mere “equal application” of a statute containing racial classifications is enough to remove the
classifications from the 14th Amendment’s proscription of all invidious racial discriminations, we do not accept the State’s contention
that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose.

Class Notes
 Constitution is color-blind – no racial schemes
 White Supremacy via caste system

3. Interracial Remarriage and Child Custody

 In Palmore v. Sidoti (1984), the Court faced the question whether the “best interests of the child” standard could ever permit a
custody allocation to prefer a same-race to an interracial remarriage by the child’s parents.
o After Palmore and Sidoti (both white) were divorced, Palmore, the mother, was awarded custody of their 3 year old daughter.
o When the mother entered a second marriage, to an African-American man, the state court awarded custody to the father as in
“the best interest” of the child.
 SCOTUS reversed that ruling
o Chief Justice Berger wrote for the court:
 Classifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns
 Such classifications are subject to the most exacting scrutiny; to pass constitutional muster they must be
justified by a compelling governmental interest and must be “necessary to the accomplishment” of its
legitimate purpose.
 The question is whether the reality of private biases and the possible injury they might inflict are permissible
considerations for removal of an infant child from the custody of its natural mother.
 The Constitution cannot control such prejudices but neither can it tolerate them
 Private biases may be outside the reach of the law, bur the law cannot, directly or indirectly, give them
effect.
4. The problem of facially symmetrical race-based laws.
 The laws struck down in Brown and Loving did not contain racial classifications explicitly disadvantaging racial minorities.
 Over the years, some Justices have suggested a per se rule invalidating all governmental distinctions among individuals made because
of race
o But as the preceding cases illustrate, the Court has not stated so comprehensive a prohibition.
5. Permissible Uses of Racial Criteria?
 In Johnson v. California (2005), the Court, 5-3, held that strict scrutiny must be applied to a state policy of segregating prisoners by
race even where preventing racial gang violence was the justification.
o Justice O’Connor wrote for the court
 The CDC’s asserted rationale for this practice is that it is necessary to prevent violence caused by racial gangs.
 The CDC claims that its policy should be exempt from our categorical rule because it is “neutral” – that is,
all prisoners are “equally” segregated.
o We rejected the notion that separate can ever be equal – or “neutral” – 50 years ago in Brown v.
Board.
 When government officials are permitted to use race as a proxy for gang membership and violence without
demonstrating a compelling government interest and proving that their means are narrowly tailored, society as a
whole suffers.
 Strict scrutiny does not preclude the ability of prison officials to address the compelling interest in prison safety.
 Prison administrators, however, will have to demonstrate than any race-based policies are narrowly
tailored to that end.
 37
o Justice Stevens dissented, arguing that the prison’s policy was unconstitutional as an equal protection violation on the
record before the court without need for remand for further fact finding.
o Justice Thomas, joined by Scalia, also dissented but in the opposite direction, arguing that strict scrutiny should not apply.

FACIAL DISCRIMINATION AGAINST RACIAL MINORITIES

1. Strict Scrutiny of Racially Discriminatory Laws.

 Korematsu v. US (1944), was one of the very rare cases in which a classification imposing disadvantages based on race survived
strict scrutiny.
o The case arose out of the notorious internment of citizens of Japanese origins
o Soon after the attack on Pearl Harbor, President Roosevelt issued an Executive Order purporting to safeguard “against
espionage and against sabotage.”
 The order provided that certain military commanders on the West Coast might designate “military areas” in the US
“from which any or all persons may be excluded, and with respect to which the right of any person to enter, remain
in, or leave shall be subject to whatever restrictions” the “Military Commander may impose in his discretion.”
 In reality, by requiring persons of Japanese ancestry on the West Coast to report to relocation centers from which
they were deported to camps, the orders mandated internment.
 The conditions in the camps, which Roosevelt several times publically called “concentration camps,” were
brutal.
o In Hirabayashi v. US (1943), SCOTUS unanimously upheld the curfew orders
 Then in 1944, SCOTUS sustained, against challenge under the equal protection requirement implied in the 5 th
Amendment Due Process Clause
o Early in the opinion, Justice Black stated the governing standard:
 All legal restrictions which curtail the civil rights of a single racial group are immediately suspect.
 It is to say that courts are to subject them to the most rigid scrutiny.
 Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
o But here, the requisite pressing public necessity was found
 The judgment that exclusion of the whole group was a military imperative answers the contention that the exclusion
was in the nature of group punishment based on antagonism to those of Japanese origin.
 To cast this case into outlines of racial prejudice, without reference to the real military dangers which were
presented, merely confuses the issue.
 There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was
great, and time was short
 We cannot – by availing ourselves of the calm perspective of hindsight – now say that at that time these
actions were unjustified.
o Justice Frankfurter concurred, and also laid out some principles regarding the executive and legislative wartime powers
 The war power of the government is “ the power to wage war successfully.”
 Therefore the validity of action under the way power must be judged wholly in context of war
 To recognize that military orders are “reasonably expedient military precautions’ in time of war and yet to deny
them constitutional legitimacy makes the Constitution an instrument for dialectic subtleties not reasonably to be
attributed to the hard-headed Framers, of whom a majority had had actual participation in war.
 To find that the Constitution does not forbid the military measures now complained of does not carry with
it approval of that which Congress and the Executive did
o Justice Murphy wrote the strongest dissent – even though he did not invoke the “suspect classification”-“strict scrutiny” test
and purported to apply the “reasonableness” standard.
 He was not persuaded that the deprivation of individual rights here was “reasonably related to a public danger that is
so ‘immediate, imminent, and impending’ as not to admit of delay and not to permit the intervention of ordinary
constitutional processes to alleviate the danger.”
 He conceded that there was “a very real fear of invasion,” sabotage, and espionage on the West Coast in 1942
 But he insisted that “the exclusion, either temporarily or permanently, of all persons of Japanese blood in
their veins had no reasonable relation” to the “removal of the dangers.”
 The justification for exclusion rested “mainly upon questionable racial and sociological grounds” not charged or
proved – “an accumulation of much of the misinformation, half-truths and insinuations that for years have been
directed against Japanese Americans by people with racial and economic prejudices- the same people who have
been among the foremost advocates of the evacuation.
o Justice Jackson, in dissent, stated that the military orders may or may not have been “expedient military precautions,” but
they should not be enforced by civil courts committed to the Constitution.
 A judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than
the promulgation of the order itself.
 A military commander may overstep the bounds of constitutionality, and it is an incident.
 But if we review and approve, that passing incident becomes a doctrine of the Constitution.
o Justice Roberts also dissented, rejecting the government’s reliance on the Hirabayashi Court’s upholding of the curfew order
and stressed that Korematsu faced much more than a temporary exclusion from his home (the constitutional validity of which
would have been more likely):
 38
 This is not a case of keeping people off the streets at night as was hirabayashi nor a case of temporary exclusion
of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go
temporarily out of an area where his presence might cause danger to himself or to his fellows
 On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in
a concentration camp, based on ancestry, and solely because of his ancestry, without evidence or inquiry
concerning his loyalty and good disposition towards the US.
2. Scope of Racial Classification
 SCOTUS has found that classifications resting on any advertence to race, national origin, ancestry or ethnicity are suspect under the
14th Amendment.
3. Aftermath of Korematsu
 In 1988, Congress enacted a law apologizing for the WWII internment program and providing for reparations of $20,000 each to
surviving victims.
4. The Chinese Exclusion Act of 1882
 The Chinese Exclusion Act was a law passed by Congress banning “laborers” of Chinese dissent from entry into the US for a period
of 10 years.
o This was explicit discrimination against Chinese persons on racial grounds, given that the government allowed laborers of
other ethnicities to immigrate without extra restriction during that time
 SCOTUS affirmed the act in Chae Chan Ping v. US (1889), where it held that the US had the sovereign power to exclude aliens for
any reason it judges sufficient
o Later in Fong Yue Ting v. Us (1893), the Court held that it was constitutionally permissible to deport Chinese persons on
racial grounds.

RACIAL DISCRIMINATION PURPOSE AND EFFECT

1. Racially Discriminatory Application of Facially Neutral Laws

 Can a law that is racially neutral on its face ever give rise to a finding of racially discriminatory purpose and therefore to strict scrutiny
o The Court has answered that question in the affirmative
 One such circumstance arises when a facially neutral law receives racially discriminatory application
 In Yick Wo v. Hopkins (1886), a habeas corpus proceeding, held the challenger’s imprisonment unjustified.
o A San Francisco ordinance prohibited operating a laundry (except in a brick or stone building) without the consent of the
Board of Supervisors
 Of 320 laundries, 310 were in wooden buildings
o The Board granted permits to operate laundries in wooden buildings to all but one of the non-Chinese applicants, but none of
those among the 240 Chinese laundry operators who applied for permits.
o Justice Matthews Wrote for the court:
 The facts shown establish an administration directed so exclusively against a particular class of persons as to
require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by
the public authorities charged with their administration with a mind so unequal and oppressive as to amount to a
practical denial by the State of equal protection.
 If the law is applied and administered by public authority with an evil eye and an unequal hand, so as practically to
make unjust and illegal discriminations between persons in similar circumstances, the denial of equal justice is still
within the prohibition of the Constitution
 Note that Yick Wo has not led to frequent dismissals of criminal prosecutions on the ground that the prosecution acted in a racially
selective manner.
2. Racially Discriminatory Purpose Underlying Facially Neutral Laws
 The Court has declined to find race discrimination in facially neutral laws with a racially disproportionate effect
 In Gomillion v. Lightfoot (1960), the statute, which altered “the shape of Tuskegee from a square to an uncouth twenty-eight-sided
figure,” was alleged to result in removing from the city “all save only 4 or 5 of its 400 Negro voters while not removing a single white
voter or resident.”
o Justice Frankfurter found that, if the allegations were proved, “the conclusion would be irresistible, tantamount for all
practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and
colored voters by fencing Negro citizens out of town so as to deprive them of their preexisting municipal vote.
 Griffin v. County School Board of Prince Edward (1964), found the closing of public schools unconstitutional in one of the
countries involved in the first group of school desegregation cases decided together with Brown v. Board of Education.
o Justice Black emphasized that “public schools were closed and private schools operated in their place with state and county
assistance to ensure that white and colored children in Prince Edward County would not, under any circumstances, go to the
same school.
 The court declined to find racially discriminatory purpose in Palmer v. Thompson (1971), holding that the city of Jackson, MS, had
not acted unconstitutionally in closing its public swimming pols after they had been ordered desegregated.
o Justice Black asserted that thought there were some evidence that the city had acted in part because of “ideological opposition
to racial integration,” there was also substantial evidence that the city had thought that the pools “could not be operated safely
and economically on an integrated basis.”
o Justice White’s dissent insisted that whites and blacks were not being treated alike when both were denied use of public
services:
 The fact is that closing the pools is an expression of official policy that Negroes are unfit to associate with whites.
 39
3. Facially Neutral Laws with Racially Discriminatory Effect
 If no purposeful discrimination appears on the face of a statute or can be inferred from the manner in which it is administered, and
there is insufficient evidence of racially hostile motivation by lawmakers or administrators, may the statute be held unconstitutional
nonetheless because it has a disproportionally adverse impact on racial minorities?

Washington v. Davis – SCOTUS – 1976 (Justice White) (PG 686)

PH and Outcome/Facts
 This case is an equal protection challenge by African-American applicants to the DOC Metro PD who were rejected for failing to
perform satisfactorily on a written test measuring verbal ability, vocab, reading and comprehension.
o The examination was one generally used throughout the federal service
 The DC denied relief, finding that the test was reasonably related to the requirements of the police recruit training program
 The COA emphasized its disproportionate impact.
Issue
 Is the test performed by the DC PD unconstitutional via equal protection?
Reasoning
 The essential element of de jure segregation is “a current condition of segregation resulting from intentional state action
o “The differentiating factor between de jure segregation and so-called de facto segregation is purpose or intent to segregate.”
 A statute otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race (Yick Wo).
o It is also clear from the cases dealing with racial discrimination in the selection of juries that the systematic exclusion of
Negroes is itself such an “unequal application of the law as to show intentional discrimination.”
 Necessarily, an invidious discrimination purpose may often be inferred from the totality of the relevant facts, including the fact, if it is
true, that the law bears more heavily on one race than another.
o Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to
pursue, is invalid under equal protection simply because it may affect a greater proportion of one race than of another.
 There are some indications to the contrary in our cases.
o Palmer v. Thompson warned against grounding decision on legislative purpose or motivation.
 Whatever dicta the opinion may contain, the decision did not involve, much less invalidate, a statute or ordinance
having neutral purpose but disproportionate racial consequences.
 The test, which is administered generally to prospective government employees, concededly seeks to ascertain whether those who take
it have acquired a particular level of verbal skill; and it is untenable that the Constitution prevents the Government from seeking
modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence,
particularly where the job requires special ability to communicate orally and in writing.
o That other Negroes also failed to score well would, alone, not demonstrate that respondents individually were being denied
equal protection by the application of an otherwise valid qualifying test being administered to prospective police recruits.
o Nor on the facts of the case before us would the disproportionate impact of the test warrant the conclusion that it is a
purposeful device to discriminate against Negroes.
 Under Title VII of the Civil Rights Act of 1964, Congress provided that when hiring and promotion practices disqualifying
substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an
insufficient response to demonstrate some rational basis fro the challenged practices.
o A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it
benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps
invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to
the poor and to the average black than to the more affluent white.
Holding
 We think the DC correctly held that the affirmative efforts of the PD to recruit black officers, the changing racial composition of the
recruit classes and of the force in general, and the relationship of the test to the training program negated any inference that the
Department discriminated on the basis of race.
Concurrence (Justice Stevens)
 The extent of deference that one pays to the trail court’s determination of the factual issue will vary in different contexts.
o Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence
describing the subjective state of mind of the actor.
 It is unreasonable, on the one hand, to require the victim of alleged discrimination to uncover the actual subjective intent of the
decisionmaker or, conversely, to invalidate otherwise legitimate action simply because an improper motive affected the deliberation of
a participant in the decisional process.
o My point in making this observation is to suggest that the line between discriminatory purpose and discriminatory impact is
not nearly as bright, and perhaps not quite as critical, as the reader of the Court’s opinion might assume.
 Although I accept the statement of the general rule in the Court’s opinion, I am not yet prepared to indicate how that standard should
be applied in the many cases which have formulated the governing standard in different language.
o There are 2 reasons why I think the challenge to the test is insufficient.
 First, the test serves the neutral and legitimate purpose of requiring all applicants to meet a uniform minimum
standard of literacy.
 Second, the same test is used throughout the federal service.

THE MEANING AND IMPLICATIONS OF WASHINGTON V. DAVIS

 40
1. Circumstantial Evidence of Discriminatory Purpose
 Decisions following Washington confirmed that racially discriminatory purpose may still be inferred even absent the stark statistical
disparities involved in previous cases
 For example, Arlington Heights v. Metropolitan Housing Corp. (1977), reaffirmed that “official action will not be held
unconstitutional solely because it results in a racially disproportionate impact” but elaborated on the “subjects of proper inquiry” in
determining whether an unconstitutional discriminatory purpose exists.
o The case involved a challenge to a Chicago suburb’s refusal to grant a request to rezone certain property from a single-family
to a multiple-family classification.
 A nonprofit developer planned to build federally subsidized townhouse units in the largely white suburb, so that low
and moderate income tenants, including members of racial minorities, might live there.
o The 7th Circuit found the suburb’s officials were motivated by the integrity of the plan rather than by racial hostility, but held
the denial of the rezoning request unconstitutional because its “ultimate effect” was racially discriminatory
o SCOTUS reversed that decision, with Justice Powell writing:
 Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory
practice.
 It was enough to show “that a discriminatory purpose has been a motivating factor in the decision.
 Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into
such circumstantial and direct evidence of intent as may be available.
 Absent a clear pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative, and the
Court must look to other evidence.
o The historical background of the decision is one evidentiary source
o The specific sequence of events leading up to the challenged decision also may shed some light on
the decisionmaker’s purposes.
o Departures from the normal procedural sequence also might afford evidence that improper
purposes are playing a role.
o The legislative or administrative history may be highly relevant.
 The finding of racial motive would have shifted the burden of establishing that the same decision would have
resulted even had the impermissible purpose not been considered
 If this were established, there would be no justification for judicial interference with the challenged
decision.
 But in this case, respondents failed to make the required threshold finding.
 The area in which the tract law had long been zoned for single family use, and the rezoning request was
handled according to the usual procedures.
o Justice White’s dissent objected to the majority’s “failure to follow our usual practice in this situation” by remanding for
reconsideration in light of Davis and to the Court’s “lengthy discussion of the standards for proving the racially
discriminatory purpose required by Davis in light of the lower courts’ findings that the suburb’s decision rested on legitimate
grounds.”
2. Proving Discriminatory Purpose after Arlington Heights
 In Rogers v. Lodge (1982), the Court affirmed lower court findings of racially discriminatory vote dilution from circumstantial
evidence surrounding an at-large election system in Burke County, GA, and upheld an order mandating a switch to single-member
districts
o Justice White wrote for the majority:
 Burke County had a total population of 19,349, of which whites constitute a slight majority (53.6%) of the voting
age population.
 The Burke County Board of Commissioners governs the country.
 It was created in 1911 under state law and consists of five members elected at large to concurrent 4-year
terms by all qualified voters in the country.
 The DC found that blacks have always made up a substantial majority of the population in Burke County, but that
they are a distinct minority of the registered voters.
 There was also overwhelming evidence of bloc voting along racial lines
 Hence, although there had been black candidates, no black had ever been elected to the Burke County Commission
 These facts bear heavily on the issue of purposeful discrimination.
o Justice Powell and Rehnquist dissented, protesting that the case was indistinguishable from a prior case, Mobile v. Bolden
(1980) where an at-large voting system had been upheld because the same evidence present in Lodge was found to be not
enough.
o Justice Steven’s separate dissent emphasized, “I do not believe that subjective intent can determine constitutionality.”
 Hunter v. Underwood (1985), likewise struck down a facially neutral law found in fact to reflect racially discriminatory purpose.
o The decision invalidated a section of the AL Constitution, adopted in 1901, disenfranchising all persons convicted of crimes
involving “moral turpitude.”
o Underwood, a white person, and Edwards, a black person, were blocked from the voter rolls because each had been convicted
of presenting a worthless check.
 They brought suit claiming that the misdemeanors included within the provision were intentionally adopted to
disenfranchise blacks.
 41
o The federal DC rejected their claim, but the COA reversed concluding that the law would not have been enacted in the
absence of the racially discriminatory motivation.
o In affirming the COA, Justice Rehnquist recognized “the difficulties in determining the actual motivations of the various
legislators that produced a given decision,” but found that the usual difficulties in identifying motivation did “not obtain in
this case.”
 He noted that, at the AL Constitutional Convention in 1901, a “zeal for white supremacy ran rampant.”
 It is clear that where both impermissible racial motivation and racially discriminatory impact are
demonstrated, Arlington Heights and Mt. Healthy supply the proper analysis
 An additional purpose to discriminate against poor whites would not render nugatory the purpose to
discriminate against all blacks, and it is beyond peradventure that the latter was a ‘but-for’ motivation for
the enactment of the section.

RACE PREFERENCES IN EMPLOYMENT AND CONTRACTING (PG 700)

1. Race Preferences in public employment

 In Wygant v. Jackson Board of Education (1986), the Court held unconstitutional a minority preference in teacher layoffs.
o The case arose from a collective bargaining agreement that provided that, when layoffs were required for fiscal reasons,
teachers with the most seniority would be retained, “except that at no time will there be a greater percentage of minority
personnel laid off than the current percentage of minority personnel employed at the time of the layoff.”
 In consequence, some white teachers were laid off, even though they had more seniority than blacks who were
retained.
o Justice Powell, joined by Chief Justice Burger and Rehnquist, applied strict scrutiny and held that the goal of providing
“minority role models” in order to overcome societal discrimination was not “compelling,” stating:
 This court has never held that societal discrimination alone is sufficient to justify a racial classification.
 The role model theory allows the Board to engage in discriminatory hiring and layoff practices long past the point
required by any legitimate remedial purpose.
 Even if the layoff provision were justified by a compelling interest, layoffs impose the entire burden of
achieving racial equality on particular individuals; that burden is too intrusive.
o Justice White concurred in the judgment
o Justice O’Connor also concurred only in the judgment, agreeing with the plurality’s rejection of the “role model” and
“societal discrimination” rationales
 On the “remedial” justification, however, she insisted that she would not require “a contemporaneous antecedent
finding of past discrimination by a court or other competent body as a constitutional prerequisite to a public
employer’s voluntary agreement to an affirmative action plan.”
o Justice Marshall dissented, joined by Brennan and Blackmun, stating:
 I believe that a public employer, with the full agreement of its employees, should be permitted to preserve the
benefits of a legitimate and constitutional affirmative-action hiring plan even while reducing its workforce.
o Justice Stevens dissented separately arguing that there was no need to rely on the remedial rationale to justify the program
 Instead, he focused on “whether the Board’s action advances the public interest in educating children for the future.”
2. Race Preference in Public Contracting
 In Fullilove v. Klutznick (1980), the Court rejected a facial constitutional challenge to a requirement in a congressional spending
program that, absent an administrative waiver, 10% of federal funds granted for local public works projects must be used by the state
or local grantee to procure services from businesses controlled by members of specified minority groups – Negroes, Spanish-speaking,
Orientals, Eskimos and Aleuts.
o A plurality of Chief Justice Burger, White and Powell concluded:
 This opinion does not adopt, either expressly or implicitly, the formulas of analysis articulated in such cases as
Bakke.
 We are satisfied that congress had abundant historical basis from which it could conclude that traditional
procurement practices, when applied to minority businesses, could perpetuate the effect of prior discrimination
 Accordingly, congress reasonably determined that the prospective elimination of these barriers was
appropriate to ensure that those businesses were not denied equal opportunity to participate in federal
grants.
o Justice Powell’s concurrence reasoned the provision was “justified as a remedy that serves the compelling governmental
interest in eradicating the continuing effects of past discrimination identified by Congress.”
o Justice Marshall, joined by Brennan and Blackmun, concurred in judgment, finding, under the test they articulated in Bakke,
that “the racial classifications employed here are substantially related to the achievement of the important and
congressionally articulated goal of remedying the present effect of past racial discrimination.
o Justice Stewart’s dissent, joined by Rehnquist, stated:
 Equal protection absolutely prohibits invidious discrimination by government
 Racial discrimination is by definition invidious discrimination
o Justice Stevens’ distinctive dissent objected to the lax congressional procedures used in arriving at its 10% set-aside figure
 When the city of Richmond, VA sought to employ a minority business set-aside modeled on the congressional set-aside upheld in
Fullilove, however, the Court found it an equal protection violation under the 14 th Amendment.
o At issue was a 1983 program that required prime contractors on city projects to subcontract at least 30% of the dollar amount
of the contract to Minority Business Enterprises (MBEs) defined as “a business of at least 51% of which is owned and
 42
controlled by minority group members” and identified eligible minority groups as “Blacks, Spanish-speaking, Orientals,
Indians, Eskimos, or Aleuts.”
o While the general population of Richmond was 50% black, only 0.67% of the city’s prime contracts had been awarded to
minority businesses from 1978 to 1983.
 In Richmond v. J.A. Croson Co. (1989), the Court invalidated the plan
o Justice O’Connor wrote for the court, and in a portion only joined by Chief Justice Rehnquist and White, she distinguished
Fullilove:
 That Congress may identify and redress the effects of society-wide discrimination does not mean that the States and
their political subdivision are free to decide that such remedies are appropriate.
o In a portion joined by Rehnquist, White and Kennedy, she wrote that even race preferences required strict scrutiny:
 There is simply no way of determining what classifications are “benign” or “remedial” and what classifications are
in fact motivated by illegitimate notions of racial inferiority or simple racial politics.
 She argued against applying here any argument for deference to race preferences where the majority merely
disadvantages itself (see Caroline Products footnote 4 pg. 501).
o Writing for the Court, she held:
 While there is no doubt that the sorry history of both private and public discrimination in this country has
contributed to a lack of opportunities for black entrepreneurs, this observation, standing alone, cannot justify a
rigid racial quota in the awarding of public contracts in Richmond.
 While the States and their subdivisions may take remedial action when they possess evidence that their own
spending practices are exacerbating a pattern of prior discrimination, they must identify that discrimination with
some specificity before they may use race-conscious relief.
 None of the evidence presented by the city points to any identified discrimination in the Richmond
construction industry.
 To accept Richmond’s claim that past societal discrimination alone can serve as the basis for rigid racial
preferences would be to open the door to competing claims for “remedial relief” for every disadvantaged group
 There is absolutely no evidence of past discrimination against Spanish-speaking, Oriental, Indian, Eskimo, or Aleut
persons in any aspect of the Richmond construction industry.
 The gross overinclusiveness of Richmond’s racial preference strongly impugns the city’s claim of remedial
motivation.
o In a concluding portion, joined only by Rehnquist, White and Kennedy, she qualified the holding to leave some latitude for
race-conscious contracting measures:
 Nothing we say today precludes a state or local entity from taking action to rectify the effects of identified
discrimination within its jurisdiction.
 In the extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of
deliberate exclusion.
o Justice Stevens concurred in part and in the judgment, disagreeing with “the premise that seems to underlie today’s decision
that a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong,”
but agreeing that “the Richmond ordinance cannot be justified as a remedy for past discrimination.
o Justice Kennedy likewise concurred in part and in judgment, rejecting “a rule of automatic invalidity for racial preferences in
almost every case” in favor of “the proposition that any racial preference must face the most rigorous scrutiny by the courts.”
o Justice Scalia concurred only in judgment, agreeing with the Court’s conclusion that strict scrutiny must be applied to all
governmental classifications by race,” but not with its suggestion that “state and local governments may in some
circumstances discriminate on the basis of race in order (in a broad sense) ‘to ameliorate the effects of past discrimination.’”
 In my view there is only one circumstance in which the States may act by race to “undo the effect of past
discrimination”: where that is necessary to eliminate their own maintenance of a system of unlawful racial
classification.
o Justice Marshall dissented, joined by Brennan and Blackmun:
 It is a welcome symbol of racial progress when the former capital of the confederacy acts forthrightly to confront
the effects of racial discrimination in its midst
 In my view, nothing in the Constitution can be construed to prevent Richmond from allocating a portion of its
contracting dollars for businesses owned or controlled by members of minority groups.
 In my judgment, Richmond’s set-aside plan also is substantially related to the interests it seeks to serve in remedying
past discrimination and in ensuring that municipal contract procurement does not perpetuate that discrimination
 Richmond’s 30% figure was patterned directly on the Fullilove precedent.
 Today, for the first time, a majority of this Court had adopted strict scrutiny as its standard of equal protection
review of race-conscious remedial measures.
 This is an unwelcome development
 Croson distinguished rather than overruled Fullilove, suggesting for the time being that the federal government might enjoy more
deference than the states with respect to challenged race preferences.

Adarand Constructors, Inc. v. Pena – SCOTUS – 1995 (Justice O’Connor) (PG 706)

PH and Outcome
 The Court of Appeals rejected Adarand’s claim
 SCOTUS vacates the COA judgment and remands for further proceedings
 43
Facts
 In 1989, the Central Federal Lands Highway Division (CFLHD), which is part of the US DOT, awarded the prime contract for a
highway construction project in CO to Mountain Gravel & Construction Co (Mountain Gravel).
o Mountain Gravel then solicited bids from subcontractors and Adarand submitted the low bid.
o Gonzales Construction Company also submitted a bid
 The prime contract’s terms provide that Mountain Gravel would receive additional compensation if it hired subcontractors certified as
small businesses controlled by “socially and economically disadvantaged individuals.”
o Gonzales is certified as such a business; Adarand is not.
 Mountain Gravel awarded the subcontract to Gonzales despite Adarand’s low bid, and Mountain Gravel’s Chief Estimator submitted
an affidavit stating that Mountain Gravel would have accepted Adarand’s bid, had it not been for the additional payment it received by
hiring Gonzales instead.
Issue
 Does the Federal Government’s practice of giving general contractors on government projects a financial incentive to hire
subcontractors controlled by “socially and economically disadvantaged individuals,” and in particular, the Government’s use of race-
based presumptions in identifying such individuals, violate the equal protection component of the 5th Amendment’s Due Process
Clause?
Reasoning
 With Croson, the Court finally agreed that the 14th Amendment requires strict scrutiny of all race-based action by state and local
governments
o But Croson of course had no occasion to declare what standard of review the Fifth Amendment requires.
 Our cases through Croson had established 3 general propositions:
o First, skepticism: “ ‘any preference based on racial or ethnic criteria must necessarily receive a most searching examination’”
– Wygant.
o Second, consistency: “the standard of review under the Equal Protection Clause is not dependent on the race of those
burdened or benefited by a particular classification.” – Croson
o And Third, congruence: “Equal protection analysis in the 5 th Amendment area is the same as that under the 14th
Amendment.”
 The principle of consistency simply means that whenever the government treats any person unequally because of his
or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution’s
guarantee of equal protection.
 Pour action today makes explicit that federal racial classifications, like those of a State, must serve a compelling governmental
interest, and must be narrowly tailored to further that interest
o It follows that to the extent (if any) that Fullilove held federal racial classifications to be subject to a less rigorous standard, it
is no longer controlling.
 Finally, we wish to dispel the notion that strict scrutiny is “strict in theory, but fatal in fact.”
o When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it
satisfies the “narrow tailoring” test this Court has set out in previous cases.
Holding
 We hold that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a
reviewing court under strict scrutiny.
Concurrence (Justice Scalia)
 In my view, government can never have a “compelling interest” in discriminating on the basis of race in order to “make up” for past
racial discrimination in the opposite direction
 Individuals who have been wronged by unlawful racial discrimination should be made whole; but under out Constitution there can be
no such thing as either a creditor or a debtor race.
Concurrence (Justice Thomas)
 I agree with the majority’s conclusion that strict scrutiny applies to all governmental classifications based on race.
o I write separately, however, to express my disagreement with the premise underlying Justice Stevens’ and Ginsburg’s
dissents: that there is a racial paternalism exception to the principle of equal protection
 Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.
o There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of
inherent equality that underlies and infuses our Constitution.
 The equal protection principle reflects our nation’s understanding that such classifications ultimately have a destructive impact on the
individual and our society
o So-called “benign” discrimination teaches many that because of chronic and apparently immutable handicaps, minorities
cannot compete with them without their patronizing indulgence
o Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe
that they have been wronged by the government’s use of race.
Dissent (Justice Stevens and Ginsburg)
 The Court’s concept of “consistency” assures that there is no significant difference between a decision by the majority to impose a
special burden on the members of a minority race and a decision by the majority to provide a benefit to certain members of that
minority notwithstanding its incidental burden on some members of the majority
o In my view that assumption is untenable
 Invidious discrimination is an engine of oppression
o Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society.
 44
 The Court’s concept of “congruence” assumes that there is no significant difference between a decision by the Congress of the US
to adopt an affirmative-action program and such a decision by a State or a municipality.
o Congressional deliberations about a matter as important as affirmative action should be accorded far greater deference than
those of a State or municipality.
Dissent (Justice Ginsburg and Stevens)
 The divisions in this difficult case should not obscure the Court’s recognition of the persistence of racial inequality and a majority’s
acknowledgement of Congress’ authority to act affirmatively, not only to end discrimination, but also to counteract discrimination’s
lingering effects.
o Those effects, reflective of a system of racial caste only recently ended.
 White and African-American consumers still encounter different deals
 Bias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that
must come down if equal opportunity and nondiscrimination are ever genuinely to become this country’s law and
practice.
 The strict standard announced is indeed “fatal” for classifications burdening groups that have suffered discrimination in our society.

AFFIRMATIVE ACTION AFTER CROSON AND ADARAND

2. “Strict in Theory but not fatal in fact.”

 Gerald Gunther wrote in an oft quoted phrase in 1972 that strict scrutiny, for example of racial classifications, is “strict in theory and
fatal in fact.”
 One important empirical study of federal judicial applications of strict scrutiny in the equal protection and other contexts from 1990 to
2003 suggests that “30% of all applications of strict scrutiny – nearly 1 in 3 – result in the challenged law being upheld,” and thus
concludes that “strict scrutiny is far from the inevitably deadly test imagined by the Gunther myth and more closely resembles the
context-sensitive tool described by O’Connor.”

Grutter v. Bollinger – SCOTUS – 2003 (Justice O’Connor) (PG 712)

PH and Outcome
 After a 15-day bench trial, the DC conclude the Law School’s use of race as a factor in admissions decisions was unlawful
 Sitting en banc, the COA reversed.
 SCOTUS affirms the COA
Facts
 The University of MI Law School ranks among the Nation’s top law schools
 Seeking to “admit a group of students who individually and collectively are among the most capable,” the Law School looks for
individuals with “substantial promise for success in law school” and “a strong likelihood of succeeding in the practice of law and
contributing in diverse ways to the well-being of others.”
o The Law school’s admissions policy also aspires to “achieve that diversity which has the potential to enrich everyone’s
education and thus make a law school class stronger than the sum of its parts.”
 The policy recognizes “many possible basis for diversity admissions.”
o The policy does, however, reaffirm the Law School’s longstanding commitment to “one particular type of diversity,” that is,
“racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically
discriminated against…who without this commitment might not be represented in our student body in meaningful numbers.”
 By enrolling a “ ‘critical mass’ of underrepresented minority students,” the Law School seeks to “ensure their ability to make unique
contributions to the character of the Law School.”
o The policy does not define diversity “solely in terms of racial and ethnic status.”
 Petitioner Barbara Grutter is a white MI resident who applied to the Law School in 1996 with a 3.8 GPA and 161 LSAT score
o The Law School initially placed petitioner on a waiting list, but subsequently rejected her application.
Issue
 Is the use of race as a factor in student admissions by the University of MI Law School unlawful?
Reasoning
 All racial classifications imposed by government “must be analyzed by a reviewing court under strict scrutiny.”
o This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental
interests
o Not every decisions influenced by race is equally objectionable and strict scrutiny is designed to provide a framework for
carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use
of race in that particular context
 Respondents assert only one justification for their use of race in the admissions process: obtaining “the educational benefits that flow
from a diverse student body.”
o It is true that some language in our affirmative-action cases might be read to suggest that remedying past discrimination is the
only permissible justification for race-based governmental action.
 But we have never held that the only governmental use of race that can survive strict scrutiny is remedying past
discrimination.
 We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought
associated with the university environment, universities occupy a special niche in our constitutional tradition
 45
o Our conclusion is informed by our view that attaining a diverse student body is at the heart of the Law School’s proper
institutional mission
o The Law School’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to
produce
 These benefits are substantial.
 These benefits are not theoretical but real, as major American businesses have made clear in their amicus briefs in
support of the University that the skills needed in today’s increasingly global marketplace can only be developed
through exposure to widely diverse people, cultures, ideas, and viewpoints.
o We agree that “it requires only a small step from this analysis to conclude that our country’s other most selective institutions
must remain both diverse and selective.”
 Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders.
o In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be
visibly open to talented and qualified individuals of every race and ethnicity.
 As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, nonmechanical way
o It follows that universities cannot establish quotas for members of certain racial groups or put members of those groups on
separate admissions tracks.
o Universities can, however, consider race or ethnicity more flexibly as a “plus” in the context of individualized consideration
of each and every applicant.
 We are satisfied that the Law School’s admissions program, like the Harvard plan described by Powell, does not
operate as a quota.
 When using race as a “plus” factor in university admissions, a university’s admissions program must remain flexible enough to ensure
that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his
or her application.
o The Law School affords this individualized consideration to applicants of all races.
o We also find that the Law School’s race-conscious admissions program adequately ensures that all factors that may
contribute to student body diversity are meaningfully considered alongside race in admissions decisions.
 All applicants have the opportunity to highlight their own potential diversity contributions through the submission of
personal statement, letters of recommendation, and an essay describing the ways in which the applicant will
contribute to the life and diversity of the Law School.
 Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative
o It does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity
the university seeks.
 The US advocates “percentage plans,” to guarantee admission of all students above a certain class-rank threshold in every high school
in the State.
o The US does not, however, explain how such plans could work for graduate and professional schools.
o We are satisfied that the Law School adequately considered race-neutral alternatives capable of producing a critical mass
without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission.
 To be narrowly tailored, a race-conscious admissions program also must not “unduly burden individuals who are not members of the
favored racial and ethnic groups.”
o We are satisfied that the Law School’s admissions program does not
 Race-conscious admission policies must be limited in time
o We see no reason to exempt race-conscious admissions programs form the requirement that all governmental use of race
must have a logical end point
o We expect 25 years from now, the use of race preferences will no longer be necessary to further the interest approved today.
Holding
 We hold that the Law School has a compelling interest in attaining a diverse student body.
 The Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a
compelling interest in obtaining the educational benefits that flow from a diverse student body.
Concurrence (Justice Ginsburg)
 However strong the public’s desire for improved education systems may be, it remains the current reality that many minority students
encounter markedly inadequate and unequal educational opportunities
 From today’s vantage point, one may hope, but not firmly forecast, that over the next generation’s span, progress toward
nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.
Concurrence/Dissent (Justice Scalia and Thomas)
 Today’s Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation.
o Tempting targets, one would suppose, will be those universities that talk the talk of multiculturalism and racial diversity in
the courts but walk the walk of tribalism and racial segregation on their campuses – through minority-only student
organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only
graduation ceremonies
 The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.
Concurrence/Dissent (Justice Thomas and Scalia)
 Frederick Douglas delivered a message lost on today’s majority:
o What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice.
 Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators.
 46
o The Constitution does not tolerate institutional devotion to the status quo in admissions policies when such devotion
ripens into racial discrimination.
 The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on
illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the
provision of burdens or benefits, it demeans us all
 Attaining “diversity,” whatever that means, is the mechanism by which the Law School obtains educational benefits, not an end of
itself
o It is the educational benefits that are the end, or allegedly compelling state interests, not “diversity.”
o Because the Equal Protection Clause renders the color of one’s skin constitutionally irrelevant to the Law School’s mission, I
refer to the Law School’s interest as an “aesthetic.”
 Under the proper standard, there is no pressing public necessity in maintaining a public law school at all and, it follows, certainly not
an elite law school.
 The Court never explicitly holds that the Law School’s desire to retain the status quo in “academic selectivity” is itself a compelling
state interest
o Therefore, the Law School should be forced to choose between its classroom aesthetic and its exclusionary admissions
system – it cannot have it both ways.
o The Court ignores the fact that other top law schools have succeeded in their aesthetic demands without racial discrimination.
 The rallying cry that in the absence of racial discrimination in admissions there would be a true meritocracy ignores the fact that the
entire process is poisoned by numerous exceptions to “merit.”
o The Equal Protection Clause does not, however, prohibit the use of unseemly legacy preferences or many other kinds of
arbitrary admissions procedures.
o What it does prohibit are classifications made on the basis of race
 The Law School tantalizes unprepared students with the promise of a University of MI degree and all of the opportunities that it offers
o These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition.
 These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that
they are “entitled” to preferences
o The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as
undeserving.
Dissent (Chief Justice Rehnquist, Scalia, Kennedy and Thomas)
 The Law School’s actual program bears no relation to its asserted goal.
o If the Law School is admitting between 91 and 108 African-Americans in order to achieve “critical mass,” thereby preventing
African-American students from feeling “isolated or like spokespersons for their race,” one would think that a number of the
same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans.
 But respondents offer no race-specific reasons for such disparities.
 The correlation between the percentage of the Law School’s pol of applicants who are members of the three minority groups and the
percentage of the admitted applicants who are members of these same groups is far too precise to be dismissed as merely the result of
the school paying “some attention to the numbers.”
o The tight correlation between the percentage of applicants and admittees of a given race must result from careful race based
planning by the Law School
o But this is precisely the type of racial balancing that the Court itself calls “patently unconstitutional.”
Gratz v. Bollinger – SCOTUS – 2003 (Chief Justice Rehnquist) (PG 721)

Facts
 This case involved a challenge by white students to an admissions policy of the University of MI, this time by the undergraduate
College of Literature, Science, and the Arts (LSA)
o Although the college considered the challengers “qualified,” they were ultimately denied admission
 The college used a selection method under which every applicant from an underrepresented racial and ethnic minority group was
automatically awarded 20 points of the 100 needed to guarantee admission
o It was undisputed that the University admitted virtually every qualified applicant from these groups.
Issue
 Is the University’s admissions policy consistent with the holding in Grutter v. Gratz?
Reasoning
 The admissions program Justice Powell described in Bakke did not contemplate that any single characteristic automatically ensured a
specific and identifiable contribution to a university’s diversity
o The only consideration that accompanies this distribution of points is a factual review of an application to determine whether
an individual is a member of one of these minority groups.
 Clearly, the LSA’s system does not offer applicants the individualized selection process.
 Nothing in Justice Powell’s opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated
goal of diversity without regard to the limits imposed by our strict scrutiny analysis
Holding
 We find that the University’s policy is not narrowly tailored to achieve the interest in educational diversity that respondents claim
justifies their program
Concurrence (Justice O’Connor, Breyer [except insofar as it joined the Court])
 Unlike the law school admissions policy the Court upholds today in Grutter, the procedures employed by the University of MI’s office
of Undergraduate Admissions do not provide for a meaningful individualized review of applicants
 47
o The Office relies on the selection index to assign every underrepresented minority applicant the same, automatic 20-point
bonus without consideration of the particular background, experiences, or qualities of each individual applicant
 Even the most outstanding national high school leader could never receive more than 5 points for his or her accomplishments – a mere
quarter of the points automatically assigned to an underrepresented minority solely based on the fact of his or her race.
o This policy stands in sharp contrast to the law school’s admissions plan, which enables admissions officers to make nuanced
judgments with respect to the contributions each applicant is likely to make to the diversity of the incoming class.
Concurrence (Justice Thomas)
 I would hold that a State’s use of racial discrimination in higher education admissions is categorically prohibited by the Equal
Protection Clause.
Dissent (Justice Souter, Stevens and Ginsburg)
 I think the freshman admissions system is closer to what Grutter approves than to what Bakke condemns, and should not be held
unconstitutional on the current record
o The record does not describe a system with a quota like the one struck down in Bakke, which “insulated” all nonminority
candidates from competition from certain seats.
 Nonminority students may receive 20 points for athletic ability, socioeconomic disadvantage, attendance at a socioeconomically
disadvantaged or predominately minority high school, or at the Provost’s discretion; they may also receive 10 points for being
residents of MI
o Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some
stated value to a relevant characteristic.
 It seems especially unfair to treat the candor of the admissions plan as an Achilles’ heel
 In contrast to the college’s forthrightness in saying just what plus factor it gives for membership in an underrepresented minority, it is
worth considering the character of one alternative thrown up as preferable, because supposedly not based on race
o Drawing on admissions systems used at public universities in CA, FL and TX, the “percentage plans” are just as race
conscious as the point scheme (and fairly so), but they get their racially diverse results without saying directly what they are
doing or why they are doing it
 Equal protection cannot become an exercise in which the winners are the ones who hide the ball
Dissent (Justice Ginsburg and Souter)
 Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day
when entrenched discrimination and its after effects have been extirpated.
o Examining in this light the admissions policy employed by LSA, I see no constitutional infirmity.
 The racial and ethnic groups to which the College affords special consideration historically have been relegated to inferior status by
law and social practice; their members continue to experience class-based discrimination to this day
o There is no suggestion that the College adopted its current policy in order to limit or decrease enrollment by any particular
racial or ethnic group, and no seats are reserved on the basis of race
 Without recourse to maintain their minority enrollment, institutions of higher education may resort to camouflage
o If honesty is the best policy, surely NI’s accurately described, fully disclosed College affirmative action program is preferable
to achieving similar numbers through winks, nods, and disguises.

THE MEANING AND IMPLICATIONS OF GRUTTER AND GRATZ

1. Bakke vs. Grutter and Gratz
 Consider the view:
o Although Grutter casts itself as merely endorsing Justice Powell’s opinion in Bakke, Grutter’s analysis of diversity actually
differs quite dramatically from Powell’s.
 Powell conceptualizes diversity as a value intrinsic to the educational process itself
 Grutter instead conceives of education as instrumental for the achievement of extrinsic social goods like
professionalism, citizenship, or leadership – Post, Harvard University Law Review (2003)
 Other scholars agree that the debate has shifted from whether Bakke would be overruled to how far it should be extended.
2. The Court’s rationale – epistemic, distribution, compensatory, or something else?
 The Court assumed in both Grutter and Gratz that seeking diversity in higher education is a compelling state interest; Gratz simply
found the undergraduate admissions program no sufficiently narrowly tailored to that goal
o Many observers see the rationale as epistemic or distributive, not compensatory
 To whatever degree individualism tolerates race-conscious decisionmaking, it may incorporate within itself some of
the concerns with racial hierarchy that a strictly colorblind regime would reject. – Primus, Harv. L. Rev. (2003)
 Others question whether the Court is truly concerned with the diversity in higher education for epistemic or distributive purposes:
o If students and faculty are benefited by “diversity” to the point that it qualifies as a compelling interest justifying
discrimination that would otherwise be unconstitutional, why the lack of concern about the absence of virtually all elite
institutions of a “critical mass” of faculty who are Evangelical Protestants, devout Catholics, social conservatives
Republicans, etc.?
o Few people who shape university policy notice, much less care about, the absence of diversity of political and religious
viewpoint and affiliation in institutions that allegedly prize the engagement of ideas – Columbia Law Review (2003)
 But consider the countervailing view:
o The reason for focusing on African-Americans, however, is central to Justice O’Connor’s path-breaking perception in
Grutter that there is something special and important for society, in the world outside the university, about admitting blacks
 Blacks occupy a unique place in American society, with their background of slavery, state-enforced segregation,
and widespread discrimination. – Columbia Law Review (2003)
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 Some observers argue that the Court has supported affirmative action only where it has benefited the white majority:
o To rest the case for affirmative action on diversity because it contributes to leaning argues that admitting blacks is good
because it helps whites
 Otherwise they would suffer from being along with only white classmates – Columbia Law Review (2003)
3. The Extent of Harm to Nonminority Applicants
 An article that predated the 2003 decisions presented in a statistical model showing that a nonminority applicant’s change of being
admitted under a race-neutral admissions process is not significantly greater than the same person’s chance of being admitted under a
race-conscious process.
5. Race-Neutral Alternatives
 Before Grutter, some states began experimenting with “alternative action” programs: race-neutral alternatives for achieving racial
diversity at universities.
o TX, for example, enacted a so-called “Ten Percent Plan,” which guaranteed admission at one of the University of TX
campuses to anyone graduating in the top ten percent of his or her high school class.
 Some opponents of affirmative action support this type of race-neutral program, but critics point out that it reinforces segregation and
argue that admission of minorities in the top 10% of their class reduces the number of spots available to students from other schools
who placed lower relative to their classes but may have had superior overall records of achievement.
o University of CA law schools tried class-based affirmative action after, first, the state Regents, and later, a state constitutional
amendment passed by initiative forbade race preferences in public institutions
6. The role of amicus Briefs
 In the Court’s opinions, a surprising amount of attention was paid to amicus briefs, especially arguments of a group of retired military
officers and several major corporations who argued that the Court should find a compelling interest in maintaining racial preferences
o One stated, for example, that “a highly qualified racially diverse offer corps educated and trained to command out nation’s
racially diverse enlisted ranks is essential to the military’s ability to fulfill its principal mission to provide national security.”
 The military officials pointed to the Vietnam Era and the undermining effects of a racial hierarchy on the military.
 American corporations expressed similar views to those in the military brief.
o The existence of racial and ethnic diversity in institutions of high education is vital to amici’s efforts to hire and maintain a
diverse workforce, and to employ individuals of all backgrounds who have been educated and trained in a diverse
environment
7. Education vs. hiring and procurement
 Consider the view that “inherent in the concept of diversity-based affirmative action is a recognition of the positive educational value
of race and life experience
o “This differs dramatically from contracting cases involving guardrails and urinals, where affirmative action has no such
theory of value.” – UCLA Law Review (1996)
 Or is the Court giving special deference to educational institutions because the university enjoys academic freedom that other
institutions in society do not?
o For example, in Board of Regents of the University of Wisconsin System v. Southworth (2000), the Court analyzed the
constitutionality under the 1st Amendment of a mandatory “activities fee” charged to the students by the university to
promote extracurricular activities.
 The Court upheld the fee, however, giving great deference to the University’s determination of its own educational
mission:
 The university may determine that its mission is well served if students have the means to engage in
dynamic discussions of philosophical, religious, scientific, social, and political subjects in their
extracurricular campus life outside the lecture hall.
8. Challenges to Race-Based Admissions Preferences After Grutter
 In Fisher v. University of Texas (2013), Justice Kennedy declined to strike down the use of race preferences in high education
admissions under the regime established in Grutter and Gratz but remanded for closer analysis of a TX plan for its narrow tailoring to
the goal of diversity
o TX had previously adopted a “Ten Percent Plan,” and Fisher did not review that program but rather the explicit use of race to
admit the remainder of each class:
 Race is not itself assigned a numerical value of each applicant, but the University has committed itself to increasing
racial minority enrollment on campus.
 Petitioner contends that the University’s use of race in the admissions process violated the Equal Protection Clause
of the 14th Amendment
 The University must prove that the means chosen by the University to attain diversity are narrowly tailored to its
goal
 On this point, the University receives no deference.
 It remains the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that
admissions processes ensure that each applicant is evaluated as an individual and not in a way that makes
an applicant’s race or ethnicity the defining feature of his or her application.
 Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to
achieve the educational benefits of diversity
 Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The
reviewing Court must ultimately be satisfied that no workable race-neutral alternatives would produce the
educational benefits of diversity.
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 The DC and COA confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good
faith in its use of racial classifications and affirming the grant of summary judgment on that basis
o Justice Thomas filed a lengthy concurrence explaining that he would apply strict scrutiny to the diversity rationale and
overrule Grutter.
o Justice Ginsburg dissented
 She would have upheld the plan without remand, because the university “is candid about what it is endeavoring to
do: It seeks to achieve student-body diversity through an admissions policy pattered after the Harvard plan
referenced as exemplary in Justice Powell’s opinion in Bakke.”
 Upon remand, the 5th Circuit again upheld the University of TX’s affirmative action plan, without sending the case to the DC for
further fact-finding

Fisher v. University of Texas at Austin et al. – SCOTUS – 2015 (Justice Kennedy) (Memo 9) (FISHER II)

Issue
 Does the University of TX’s affirmative action plan comport with strict scrutiny and the principles set out in Grutter?
Reasoning
 Although the University’s new admissions policy was a direct result of Grutter, it is not identical
 Today, up to 75% of the places in the freshman class are filled through the Top Ten Percent Plan
o As a practical matter, a student actually needs to finish in the top 7 or 8% of his or her class in order to be admitted under this
category.
o The University did adopt an approach similar to the one in Grutter for the remaining 25% or so of the incoming class.
 Unlike other approaches to college admissions considered by this Court, it combines holistic review with a percentage plan, this
approach gave rise to an unusual consequence in this case:
o Because petitioner did not graduate in the top 10% of her high school class, she was categorically ineligible for more than
3/4s of the slots in the incoming freshman class.
 Despite the Top Ten Percent Plan’s outsized effect on petitioner’s chances of admission, she has not challenged it
o The plan has been taken, somewhat artificially, as a given premise.
 The fact that this case has been litigated on a somewhat artificial basis, furthermore, may limit its value for prospective guidance.
o That does not diminish, however, the University’s continuing obligation to satisfy the burden of strict scrutiny in light of
changing circumstances
o Through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of
changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.
 As this Court’s cases have made clear, a university may institute a race-conscious admissions program as a means of obtaining “the
educational benefits that flow from student body diversity.” – Fisher I
 Increasing minority enrollment may be instrumental to these educational benefits, but it is not a goal that can or should be reduced to
pure numbers
o On the other hand, A university’s goals cannot be elusory or amorphous – they must be sufficiently measureable to permit
judicial scrutiny of the policies adopted to reach them
 The record reveals that in first setting forth its current admissions policy, the University articulated concrete and precise goals.
o The University has provided in addition a “reasoned, principled, explanation” for its decision to pursue these goals.
 A university bears a heavy burden in showing that it had not obtained the educational benefits of diversity before it turned to a race-
conscious plan.
o The demographic data the University submitted show consistent stagnation in terms of the percentage of minority students
enrolling at the University from 1996 to 2002.
 Additionally, the University put forward evidence that minority students admitted under the Hopwood regime experienced feelings of
loneliness and isolation
o In 2002, only 21% of undergraduate classes with 5 or more students in them had more than 1 African-American student
enrolled.
 The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow
tailoring, not evidence of unconstitutionality
o The university submitted extensive evidence of the many ways in which it already had intensified its outreach efforts to those
students.
o None of these efforts succeeded, and petitioner fails to offer any meaningful way in which the University could have
improved upon them at the time of her application.
 Petitioner’s final suggestion is to uncap the Top Ten Percent Plan
o As an initial matter, petitioner overlooks the fact that the Top Ten Percent Plan, though facially neutral, cannot be understood
apart from its basic purpose, which his to boost minority enrollment.
o Admissions as a function of class rank alone would sacrifice all other aspects of diversity in pursuit of enrolling a higher
number of minority students
 Class rank is a single metric, and like any single metric, it will capture certain types of people and miss others
o Indeed, to compel universities to admit students based on class rank along is in deep tension with the goal of educational
diversity as this Court’s cases have defined it.
Holding
 The top ten percent plan does survive strict scrutiny and adheres to the doctrine set forth in Grutter.
Dissent (Justice Alito, the Chief Justice and Thomas)
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 In our previous decision in this case, we held that strict scrutiny requires the University of TX at Austin to show that its use of race
and ethnicity in making admissions decisions serves compelling interests and that its plan is narrowly tailored to achieve those ends
o On remand, UT failed to do what our prior decision demanded.
o Today, the Court inexplicably grants the University’s request for deference.
 What is not at stake is whether UT or any other university may adopt an admissions plan that results in a student body with a broad
representation of students from all racial and ethnic groups
o What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that
such discrimination is necessary to achieve “the educational benefits of diversity,” without explaining – much less proving –
why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives.

RACIAL DIVERSITY IN K-12 PUBLIC EDUCATION

Parents Involved in Community Schools v. Seattle School Districts – SCOTUS – 2007 (Chief Justice Roberts) (PG 735)

PH and Outcome
 The COA below upheld the plans
 SCOTUS reverses
Facts
 The school districts in these cases voluntarily adopted student assignment plans that rely upon race to determine which public schools
certain children may attend.
 The Seattle school district classifies children as white or nonwhite; the Jefferson County school district as black or “other”
o In Seattle, this racial classification is used to allocate slots in oversubscribed high schools
o In Jefferson County, it is used to make certain elementary school assignments and to rule or transfer requests.
 Seattle School district operates 10 regular public high schools
o The plan allows incoming 9th graders to choose from among any of the district’s high schools, ranking however many schools
they wish in order of preference.
o If too many students list the same school as their first choice, the district employs a series of “tiebreakers.”
 The first tiebreaker selects for admission students who have a sibling currently enrolled in the chosen school
 The next tiebreaker depends upon the racial composition of the particular school and race of the individual student.
o 41% of enrolled students are white; the remaining 59% are classified by Seattle for assignment purposes as nonwhite
o If an oversubscribed school is not within 10 percentage points of the district’s overall white/nonwhite racial balance, it is
what the district calls “integration positive,” and the district employs a tiebreaker that selects for assignment students whose
race “will serve to bring the school into balance.”
o Seattle never operated segregated schools, nor has it ever been subject to court-ordered desegregation.
 In 1973 a federal court found that Jefferson County had maintained a segregated school system, and in 1975 the DC entered a
desegregation decree; until 2000, when the DC dissolved the decree.
o In 2001, after the decree had been dissolved, Jefferson County adopted the voluntary student assignment plan at issue in this
case
o Approximately 34% of the district’s 97,000 students are black; most of the remaining 66% are white.
 The plan requires all non-magnet schools to maintain a minimum black enrollment of 14% and a maximum black
enrollment of 50%
Issue
 Do these two schemes, which allocate children to different public schools on the basis of race, violate the 14 th Amendment guarantee
of equal protection?
Reasoning
 In order to satisfy strict scrutiny, the school districts must demonstrate that the use of individual racial classifications in the assignment
plans here under review is “narrowly tailored” to achieve a “compelling” government interest.
o There are two interests that qualify as compelling:
 The first is the compelling interest of remedying the effects of past intentional discrimination.
 The second governmental interest we have recognized as compelling for purposes of strict scrutiny is the interest in
diversity in higher education upheld in Grutter.
 In the present cases, by contrast to Grutter, race is not considered as part of a broader effort to achieve “exposure to widely diverse
people, cultures, ideas, and viewpoints”; race, for some students, is determinative standing alone.
o Under each plan when race comes into play, it is decisive by itself.
o In upholding the admissions plan in Grutter, this court relied upon considerations unique to institutions of high education.
 The present cases are not governed by Grutter.
 Both school districts assert additional interests:
o Seattle contends that its use of race helps to reduce racial concentration in schools to ensure that racially concentrated
housing patterns do not present nonwhite students form having access to the most desirable schools
o Jefferson County has articulated a similar goal.
 In design and operation, however, the plans are directed only to racial balance, pure and simple, an objective this
Court has repeatedly condemned as illegitimate.
 The plans are tied to each district’s specific racial demographics rather than to any pedagogic concept of the level of diversity needed
to obtain the asserted educational benefits.
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o The districts offer no evidence that the level of racial diversity necessary to achieve the asserted educational benefits
happen to coincide with the racial demographics of the respective school districts.
 This working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the
level of diversity that provides the purported benefits, is a fatal flaw under our existing precedent
o The principle that racial balancing is not permitted is one of substance, not semantics
 Racial balancing is not transformed from “patently unconstitutional” to a compelling state interest by relabeling it
“racial diversity.”
 The districts asset, as they must, that the way in which they have employed individual racial classifications is necessary to achieve
their stated ends
o The minimal effect these classifications have on student assignments, however, suggests that other means would be effective.
o The districts have failed to show that they considered methods other than explicit racial classifications to achieve their stated
goals.
 Narrow tailoring requires “serious, good faith consideration of workable race-neutral alternatives.”
 The dissent overreads Grutter
o The court was exceedingly careful in describing the interest furthered in Grutter as “not an interest in simple ethnic diversity”
but rather a “far broader array of qualifications and characteristics” in which race was but a single element.
 We take the Grutter Court at its word
o Justice Breyer also suggests that other means for achieving greater racial diversity in schools are necessarily unconstitutional
if the racial classifications at issue in these cases cannot survive strict scrutiny
 Rather, we employ the familiar and well-established analytic approach of strict scrutiny to evaluate the plans at issue
today, an approach that in no way warrants the dissent’s cataclysmic concerns
 The parties and their amici debate which side is more faithful to the heritage of Brown.
o As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we
will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal
protection clause of the 14th Amendment to use race as a factor in affording educational opportunities among its citizens.
o For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation,,
such as Jefferson County, the way “to achieve a system of determining admission to the public schools on a nonracial basis,”
is to stop assigning students on a racial basis
Holding
 It is clear that the racial classifications employed by the districts are not narrowly tailored to the goal of achieving the educational and
social benefits asserted to flow from racial diversity.
Concurrence (Justice Thomas)
 Contrary to the dissent’s rhetoric, neither of these school districts is threatened with re-segregation, and neither is constitutionally
compelled or permitted to undertake race-based remediation.
o Racial imbalance is not segregation.
 Although presently observed racial imbalance might result from past de jure segregation, racial imbalance can also result from any
number of innocent private decisions, including voluntary housing choices.
o Although there is arguably a danger of racial imbalance in schools in Seattle and Louisville, there is no danger of
resegregation.
 It is far from apparent that coerced racial mixing has any educational benefits, much less that integration is necessary to black
achievement.
 Most of the dissent’s criticisms of today’s result can be traced to its rejection of the color-blind Constitution
o But my view of the Constitution is Justice Harlan’s view in Plessy: “Our constitution is color-blind, and neither knows nor
tolerates classes among citizens.”
Concurrence in part/judgment (Justice Kennedy)
 Parts of the opinion by the Chief Justice imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my
view, it may be taken into account
o Fifty years of experience since Brown should teach us that the problem before us defies so easy a solution.
o To the extent the plurality opinion suggests the constitution mandated that states and local school authorities must accept the
status quo of racial isolation in schools, it is, in my view, profoundly mistaken.
 In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and
to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.
o School boards may pursue the goal of brining together students of diverse backgrounds and races through other means,
including (see page 741)
 Assigning to each student a personal designation according to a crude system of individual racial classifications is
quite a different matter; and the legal analysis changes accordingly
 I join Part III-C of the Court’s opinion because I agree that in the context of these plans, the small number of assignments affected
suggested that the schools could have achieved their stated ends through different means.
 If it is legitimate for school authorities to work to avoid isolation in their schools, must they do so only by indirection and general
policies?
o So, the argument proceeds, if race is the problem, then perhaps race is the solution.
 The argument ignores the dangers presented by individual classifications, dangers that are not as pressing when he same ends are
achieved by more indirect means.
o To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society.
 52
o On the other hand, race-conscious measures that do not rely on differential treatment based on individual classifications
present these problems to a lesser degree.
 A compelling interest exists in avoiding racial isolation.
o Likewise, a district may consider it a compelling interest to achieve a diverse student population
o What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the
basis of race and to assign each of them to schools based on that classification.
Dissent (Justice Stevens)
 There is a cruel irony in the Chief Justice’s reliance on Brown.
o He states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their
skin.”
o The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not
tell stories of white children struggling to attend black schools.
Dissent (Justice Breyer, Steven, Souter, Ginsburg)
 This Court has recognized that the public interest at stake in such cases are “compelling.”
o We have approved of “narrowly tailored” plans that are no less race-conscious than the plans before us.
 The plurality says inadequate attention to this law, to past opinions’ rationales, their language, and the contexts in which they arise
o As a result, it reverses course and reaches the wrong conclusion.
o In doing so, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown’s
promise of integrated primary and secondary education that local communities have sought to make a reality.
 The principle that the government may voluntarily adopt race-conscious measures to improve conditions of race even when it is not
under a constitutional obligation to do so has been accepted by every branch of government and is rooted in the history of the Equal
protection clause itself.
 No case – not Adarand, Gratz, Grutter, or any other – has ever held that the test of “strict scrutiny” means that all racial classifications
– no matter whether they seek to include or exclude – must in practice be treated the same.
o Today’s opinion reveals that the plurality would rewrite this Court’s prior jurisprudence, at least in practical application,
transforming the “strict Scrutiny” test into a rule that is fatal in fact across the board.
 Here, the context is one in which school districts seek to advance or to maintain racial integration in primary and secondary schools.
o The context here is one of racial limits that seek, not to keep the races apart, but to bring them together.
o I believe that the law requires application here of a standard of review that is not “strict” in the traditional sense of that word
 Apparently, Justice Kennedy also agrees that strict scrutiny would not apply in respect to certain “race-conscious”
school board policies.
 The interest at stake possesses three essential elements:
o First, there is a historical and remedial element: an interest in setting right the consequences of prior conditions of segregation
o Second, there is an educational element: an interest in overcoming the adverse educational effects produced by and associated
with highly segregated schools
o Third, there is a democratic element: an interest in producing an educational environment that reflects the “pluralistic
society” in which our children will live
 In light of this Court’s conclusions in Grutter, the “compelling” nature of these interests in the context of primary
and secondary public education follows here a fortiori
 Several factors lead me to conclude that the boards’ use of race-conscious criteria in these plans passes even the strictest “tailoring”
test.
o First, the race-conscious criteria at issue only help set the outer bounds of broad ranges.
o Second, broad-range limits on voluntary school choice plans are less burdensome, and hence more narrowly tailored than the
race-conscious admission plans that this Court approved in Grutter.
o Third, the school boards’ widespread consultation, their experimentation with numerous other plans, make clear that plans
that are less explicitly race-based are unlikely to achieve the board’s “compelling” objectives.

Section 3. Sex Discrimination (PG 756)

 Identification of additional classifications warranting heightened scrutiny has typically extrapolated form the characteristics that have
elicited strict scrutiny of governmental use of racial criteria.

DISCRIMINATING ON THE BASIS OF SEX

1. Constitutional Sources of sex equality

 The US constitution is the only major Western Constitution with a bill of rights that lacks a provision explicitly declaring the equality
of the sexes.
o The only known use of the pronoun “she” in the framing deliberations concerned a later-rejected clause that would have
referred to the rendition of fugitive slaves.
 White suffragists participated in the fight for abolition, the text of the 14th Amendment did not reflect their struggle; indeed, the
second section of the Amendment introduced the word “male” into the Constitution and lined it to the franchise.
o SCOTUS soon confirmed that the guarantee of the 14th Amendment did not apply to sex discrimination, even when that
discrimination was explicit.
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 In 1873 the Court, in Bradwell v. State (1873), denied that federal privileges and immunities included the right of Myra Bradwell
to practice law in IL.
o Even Justice Bradley, who had a day earlier dissented form the decision in the Slaughter-House Cases, wrote a concurring
opinion:
 It certainly cannot be affirmed, as an historical fact that it is one of the privileges and immunities of women as
citizens to engage in any and every profession, occupation, or employment in civil life.
 The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of
things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood
 In Minor v. Happersett (1874), the Court denied that federal privileges and immunities included the right of women to vote in state
elections, suggesting that women may be persons within the meaning of the 14 th Amendment, and even citizens, but that they were not
thereby entitled to participate in a political or professional realm reserved to men
 The 19th Amendment bears analogy to the guarantee against race discrimination of the 15 th Amendment, but no test explicitly specifies
an equal protection guarantee for the sexes comparable to the general guarantee in the 14 th Amendment.
o An equal rights amendment, proposed by both houses in 1971-72, would have provided that “equality of rights under the law
shall not be denied or abridged by the US or by any State on account of sex,” and would have authorized Congress to enact
implementing legislation.
 On June 30, 1982, the proposed amendment failed of ratification
 35 stated had ratified it, but the additional 3 required stated could not be mustered.
 It is also interesting to note that the Court often refers to discrimination on the basis of “gender” rather than the potentially more
accurate description of discrimination on the basis of “sex.”
2. Deference to laws maintaining “separate spheres.”
 Goesaert v. Cleary (1948), rejected an attack on a MI law which provided that no woman cold obtain a bartender’s license unless she
was “the wife or daughter of the make owner” of a licensed liquor establishment
o Justice Frankfurter stated:
 MI could, beyond question, forbid all women form working behind a bar
 The fact that women may now have achieved the virtues that men have long claimed as their prerogatives
and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp
line between the sexes, certainly in such matters as the regulation of the liquor traffic.
o Justice Rutledge, joined by Douglas and Murphy, dissented without challenging the majority’s assumptions; instead, focused
on the inadequate fit between means and ends.
3. Heightened Scrutiny under Rationality Review
 In Reed v. Reed (1971), the Court declined to find se a suspect classification
o Yet the unanimous Court invalidated the challenged law under the Equal Protection Clause under a “rationality” standard
 The state courts had sustained a preference to men over women in the appointment of administrators of estates as a
rational method “to resolve an issue that would otherwise require a hearing as to the relative merits” of the
petitioning relatives
o Chief Justice Burger stated the question as “whether a difference in the sex of competing applicants for letters of
administration bears a rational relationship to a state objective that is sought to be advanced by the operation of the law.”:
 Giving a mandatory preference to members of either sex over members of the other, merely to accomplish the
elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by equal
protection; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this
contest may not lawfully be mandated solely on the basis of sex.
4. The failure to Adopt Strict Scrutiny
 In Frontiero v. Richardson (1973), the Court sustained an equal protection challenge to a federal law affording male members of the
armed forces an automatic dependency allowance for their wives, but requiring servicewomen to prove that their husbands were
dependent
o Justice Brennan’s opinion advocated treating gender as a suspect classification, but obtained only a plurality of Justices
Douglas, White and Marshall. He concluded that:
 Classifications based upon sex, like those upon race, alienage, and natural origin, are inherently suspect and must
therefore be subjected to close judicial scrutiny.
 Our nation has had a long and unfortunate history of sex discrimination.
 As a result, out statute books gradually become laden with gross, stereotyped distinctions between the sexes
and, indeed, throughout much of the 19 th century the position of women in our society was, in many
respects, comparable to that of blacks under the pre-Civil War slave codes.
 The position of women in America has improved markedly in recent decades
 Nevertheless, it can hardly be doubted that women still face pervasive discrimination in our educational
institutions in the job market and, perhaps most conspicuously, in the political arena
 Moreover, since sex, like race and national origin, is an immutable characteristic, the imposition of special
disabilities upon the members of a particular sex because of their sex would seem to violate “the basic concept of
our system that legal burdens should bear some relationship to individual responsibility.
o Justice Brennan could it “clear” that the law was unconstitutional because the Government had relied on promoting
“administrative convenience:”
 It maintains that, as an empirical matter, wives frequently are dependent upon their husbands, while husbands
rarely are dependent upon their wives.
 54
 The Government offers no concrete evidence tending to support its view that such differential treatment in fact
saves the Government any money.
o Justice Powell, joined by Chief Justice Burger and Blackmun, concurred only in the judgment arguing that it was unnecessary
“in this case to characterize sex as a suspect classification” because the case could and should be decided “on the authority of
Reed” and “any expansion of its rationale” should be reserved for the future.
o Justice Stewart, who also concurred solely in the judgment, stated that the law worked “an invidious discrimination in
violation of the Constitution via Reed.”
o Justice Rehnquist dissented.

Craig v. Boren – SCOTUS – 1976 (Justice Brennan) (PG 763)

Facts
 The interaction of two sections of an OK statute prohibits the sale of “non-intoxicating” 3.2% beer to males under the age of 21 and to
females under the age of 18
Issue
 Does such a gender-based differential constitute a denial to males 18-20 years of age of equal protection?
Reasoning
 Classifications by gender must serve important governmental objectives and must be substantially related to achievement of those
objectives.
 In light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it was necessary that
the legislature choose either to realign their substantive laws in a gender-neutral fashion, or to adopt procedures for identifying those
instances where the sex-centered generalization actually comported to fact
o In this case, too, “Reed, we feel, is controlling.”
 We accept for purposes of discussion the DC’s identification of the objective underlying the law as the enhancement of traffic safety.
o But appellees’ statistics in our view cannot support the conclusion that the gender-based distinction closely serves to achieve
that objective and therefore the distinction cannot under Reed withstand equal protection challenge.
 Viewed in terms of correlation between sex and the actual activity that OK seeks to regulate – driving while under the influence of
alcohol – the statistics broadly establish that .18% of females and 2% of males in the 18-20 age group were arrested for that offense
o While such a disparity is not trivial in a statistical sense, it hardly can form the basis for employment of a gender line as a
classifying device.
 Setting aside the obvious methodological problems, the surveys do not adequately justify the salient features of OK’s gender-based
traffic-safety law.
o The very social stereotypes that find reflection in age differential laws are likely substantially to distort the accuracy of these
comparative findings
 Hence “reckless” young men who drink and drive are transformed into arrest statistics, whereas their female
counterparts are chivalrously escorted home.
o In fact, when it is further recognized that OK’s statute prohibits only the selling of 3.2% beer to young males and not their
drinking the beverage once acquired (even after purchase by their 18-20-year-old female companions), the relationship
between gender and traffic safety becomes too tenuous to satisfy Reed’s requirement that the gender-based difference be
substantially related to achievement of the statutory objective.
Holding
 We conclude that this gender-based differential is a denial of equal protection to males aged 18-20 and insofar as Goesaert v. Cleary
may be inconsistent, that decision is disapproved.
Concurrence (Justice Powell)
 Reed and subsequent cases involving gender-based classifications make clear that the Court subjects such classifications to a more
critical examination than is normally applied when “fundamental” constitutional rights and “suspect classes” are not present.
o The decision turns on whether the state has adopted a means that bears a “fair and substantial relation” to this objective
 This gender-based classification does not bear a fair and substantial relation to the object of the legislation.
Concurrence (Justice Stevens)
 There is only one Equal protection clause; and I am inclined to believe that what has become known as the two-tiered analysis of
equal protection claims does not describe a completely logical method of deciding cases, but rather is a method the Court has
employed to explain decisions that actually apply a single standard in a reasonably consistent fashion.
 In this case, the classification is objectionable because it is based on an accident at birth, because it is a mere remnant of the now
almost universally rejected tradition of discriminating against males in this age bracket, and because, to the extent it reflects any
physical difference between males and females, it is actually perverse.
o Because males are generally heavier than females, they have a greater capacity to consume alcohol without impairing their
driving ability than do females.
 The question is then whether the traffic safety justification put forward by the State is sufficient to make an otherwise offensive
classification acceptable.
o It is difficult to believe that the statute was actually intended to cope with the problem of traffic safety, since it has only a
minimal effect on access to a not-very-intoxicating beverage and does not prohibit its consumption.
Concurrence (Justice Stewart)
 The law amounts to total irrationality and to invidious discrimination
Dissent (Justice Rehnquist)
 The Court’s disposition of this case is objectionable on two grounds:
 55
o First is its conclusion that men challenging a gender-based statute which treats them less favorably than women may
invoke a more stringent standard of judicial review than pertains to most other types of classifications.
o Second, is the Court’s enunciation of this standard, without citation to any source, as being that “classification by gender
must serve important governmental objectives and must be substantially related to achievement of those objectives.”
 Before today, no decision of this Court has applied an elevated level of scrutiny to invalidate a statutory discrimination harmful to
males
o There being no plausible argument that this is a discrimination against females, the Court’s reliance on out previous sex-
discrimination cases is ill-founded.
 Under the applicable rational basis test, legislatures are entitled to draw factual conclusions on the basis of the determination of
probable cause which an arrest by a police officer normally represents
o In this situation, they could reasonably infer that the incidence of drunk driving is a good deal higher than the incidence of
arrest.

SEX EQUALITY AFTER CRAIG V. BOREN

2. All-Female Nursing Schools

 In Mississippi University for Women v. Hogan (1982), the Court sustained, 5-4, a male applicant’s challenge to the State’s policy of
excluding men from the MS University for Women (MUW) School of Nursing.
o Hogan, a male registered nurse in Columbus, MS, where MUW is located, was denied admission to the School’s
baccalaureate program.
o In invalidating the School’s single-sex admissions policy, Justice O’Connor applied and restated the Craig standard and
rejected the State’s effort to justify its system as “benign” and “compensatory”:
 That this statute discriminates against males rather than females does not exempt it from scrutiny or reduce the
standard of review.
 The burden (“exceedingly persuasive justification” for the classification) is met only by showing that the
classification serves “important governmental objectives and that the discriminatory means employed” are
“substantially related to the achievement of those objectives.”
 If the statutory objective is to exclude or “protect” members of one gender because they are presumed to suffer from
an inherent handicap or to be innately inferior, the objective itself is illegitimate.
 If the State’s objective is legitimate and important, we must next determine whether the requisite direct,
substantial relationship between objective and means is present.
 The need for the requirement is amply revealed by reference to the broad range of statutes already
invalidated by this Court, statutes that relied upon the simplistic, outdated assumption that gender could be
used as a “proxy for other, more germane basis of classifications” (Craig) to establish a link between
objective and classification.
o Justice O’Connor rejected the State’s primary justification, that the single-sex admissions policy “compensates for
discrimination against women and, therefore, constitutes educational affirmative action.”
 Such a “benign” justification requires “searching analysis”
 Here, however, the State has made no showing that women lacked opportunities to obtain training in the field of
nursing or to attain positions of leadership in that field when the MUW School of Nursing opened its doors or that
women currently are deprived of such opportunities.”
 MUW’s admissions policy lends credibility to the old view that women, not men, should become nurses, and makes
the assumption that nursing is a field for women a self-fulfilling prophecy.
 Thus, we conclude that, although the State recited a “benign, compensatory purpose,” it failed to establish
that the alleged objective is the actual purpose underlying the discriminatory classification.
 Moreover, the State has made no showing that the gender-based classification is substantially and directly
related to its proposed compensatory objective.
o Justice Powell, joined by Rehnquist, dissented, objecting to the Court’s heightened scrutiny of a State’s effort “to provide
women with a traditionally popular and respected choice of educational environment,” and to the Court’s “applying a
heightened equal protection standard, developed in cases of genuine sexual stereotyping, to a narrowly utilized state
classification that provides an additional choice for women:
 In no previous case have we applied it to invalidate state efforts to expand women’s choices.
 Women are free to select a coeducational education environment for themselves if they so desire; their
attendance at MUW is not a matter of coercion.
3. Sex-based Peremptory Strikes
 In J.E.B. v. Alabama ex rel. T.B. (1994), the Court held that peremptory challenges to jurors on the basis of their gender are
unconstitutional
o AL sued J.E.B. to establish paternity and award child support on behalf of T.B., the mother of a minor child.
 The state used most of its peremptory challenges to strike male jurors, and thus an all-woman jury was empaneled.
o Justice Blackmun wrote for the majority:
 Under our equal protection jurisprudence, gender-based classifications require “an exceedingly persuasive
justification” in order to survive constitutional scrutiny.
 Respondent offers virtually no support for the conclusion that gender alone is an accurate predictor of jurors’
attitudes; yet it urges this Court to condone the same stereotypes that justified the wholesale exclusion of women
from juries and the ballot box.
 56
o Chief Justice Rehnquist state, in a brief dissent:
 The two sexes differ, both biologically and, to a diminishing extent, in experience.
 It is not merely “stereotyping” to say that these differences may produce a difference in outlook which is
brought into the jury room
o Justice Scalia, joined by the Chief Justice, and Thomas, remarked:
 Today’s opinion is an inspiring demonstration of how thoroughly up-to-date and right-thinking we Justices are in
matters pertaining to the sexes (or as the Court would have it, genders), and how sternly we disapprove of the male
chauvinist attitudes of our predecessors.
 For every man struck by the government, petitioner’s own lawyer struck a woman
 To say that men were singled out for discriminatory treatment in this process is preposterous.

US v. Virginia – SCOTUS – 1996 (Justice Ginsburg) (PG 769)

PH and Outcome/Facts
 Founded in 1839, Virginia Military Institute (VMI) is today the sole single-sex school among VA’s 15 public institutions of higher
learning.
o VMI’s distinctive mission is to produce “citizen-soldiers,” men prepared for leadership in civilian life and in military service
o VMI pursues this mission through pervasive training of a kind not available anywhere else in VA, an “adversative method”
that constantly endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code.
 The school’s impressive record in producing leaders has made admission desirable to some women,
o Nevertheless, VA has elected to preserve exclusively for men the advantages and opportunities a VMI education offers.
 VMI has remained financially supported by VA
o Today it enrolls about 1300 men as cadets
 VMI cadets live in Spartan barracks where surveillance is constant and privacy nonexistent; they wear uniforms, eat together in the
mess hall, and regularly participate in drills
o Entering students are incessantly exposed to the rat line, “an extreme form of the adversative model,” comparable in intensity
to Marine Corps boot camp.
 Tormenting and punishing, the rat line bonds new cadets to their fellow sufferers and, when they have completed the
7-month experience, to their former tormentors.
 The DC ruled in favor of VMI, but the COA reversed and remanded, suggesting either to admit the women or to become a private
institution.
 VA proposed a parallel program for women: VA Women’s Institute for Leadership (VWIL)
o Although VWIL would share VMI’s mission – to produce “citizen-soldiers” – the VWIL program would differ, as does Mary
Baldwin College, form VMI in academic offerings, methods of education, and financial resources.
 The DC decided that the plan met he requirements of equal protection
o A divided COA affirmed
 SCOTUS now reverses
Issue
 Does VA’s exclusion of women from the educational opportunities provided by VMI deny to women “capable of all of the individual
activities required of VMI cadets” the equal protection of the laws?
 If VMI’s “unique” situation offends the Constitution’s equal protection principle, what is the remedial requirement?
Reasoning
 Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection
principle when a law or official policy denies to women simply because they are women, full citizenship stature.
 To summarize the Court’s current directions for cases of official classification based on gender:
o Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine
whether the proffered justification is “exceedingly persuasive.”
 The burden of justification is demanding and it rests entirely on the State.
o The justification must be genuine
 It must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and
females
 Physical differences between men and women, however, are enduring: “The two sexes are not fungible; a community made up
exclusively of one sex is different from a community composed of both.”
 VA asserts two justifications:
o First, “single-sex education provides important educational benefits,” and the option of single-sex education contributes to
“diversity in educational approaches.”
o Second, “the unique VMI method of character development and leadership training,” the school’s adversative approach,
would have to be modified were VMI to admit women.”
 We consider in turn
 VA has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of
women, educational opportunities within the State.
o A tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded
o In sum, we find no persuasive evidence in this record that VMI’s male-only admission policy “is in furtherance of a state
policy of ‘diversity’”
 57
 VA next argues that VMI’s adversarial method of training provides educational benefits that cannot be made available, unmodified
to women
o State actors controlling gates to opportunity may not exclude qualified individuals based on “fixed notions concerning the
roles and abilities of males and females.”
 It may be assumed that most women would not choose VMI’s adversative method
o This issue, however, is not whether “women – or men – should be forced to attend VMI” but whether the State can
constitutionally deny women who have the will and capacity, the training and attendant opportunities that VMI uniquely
affords.
o The notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the
school, is a judgment hardly proved, a prediction hardly different from other “self-fulfilling prophecies” once routinely used
to deny rights or opportunities.
 Surely, the State’s great goal of producing citizen-soldiers is not substantially advanced by women’s categorical
exclusion, in total disregard of their individual merit, from the State’s premier “citizen-soldier” corps.
 A remedial decree must closely fir the constitutional violation; it must be shaped to place persons unconstitutionally denied an
opportunity or advantage in “the position they would have occupied in the absence of discrimination.”
 VWIL affords women no opportunity to experience the rigorous military training for which VMI is framed.
o Instead, the VWIL program “deemphasizes” military education, and uses a “cooperative method” of education “which
reinforces self-esteem.”
o Kept away form the pressures, hazards, and psychological bonding characteristic of VMI’s adversarial training, VWIL
students will not know the “feeling of tremendous accomplishment” commonly experienced by VMI’s successful cadets.
 VA maintains that these methodological differences are “justified pedagogically,” based on “important differences between men and
women in learning and developmental needs,” “psychological and sociological differences” that VA describes as “real” and “not
stereotypes.”
o In contrast to the generalizations about women on which VA rests, we note again these dispositive realities: VMI’s
“imp[lamenting methodology” is not “inherently unsuitable for women,” “some women do well under the adversative
model,” “some women, at least , would want to attend VMI if they had the opportunity,” “some women are capable of all of
the individual activities required of VMI cadets,” and “can meet the physical standards VMI now imposes on men.”
 In myriad respects other than military training, VWIL does not qualify as VMI’s equal
o VWIL’s student body, faculty, course offerings, and facilities hardly match VMI’s
o Nor can the VWIL graduate anticipate the benefits associated with VMI’s 157-history, the school’s prestige, and its
influential alumni network
 More important than these tangible features, the Court emphasized in Sweatt, are “those qualities which are incapable of objective
measurement but which make for greatness” in a school, including “reputation of the faculty, experience of the administration,
position and influence of the alumni, standing in the community, traditions and prestige.”
o VA’s remedy affords no cure at all for the opportunities and advantages withheld form women who want a VMI education
and can make the grade.
Holding
 Measuring the record in this case against the review standard, we conclude that VA has shown no “exceedingly persuasive
justification” for excluding all women form the citizen-soldier training offered by VMI and the remedy proffered by VA – the Mary
Baldwin VWIL program – does not cure the constitutional violation
Concurrence in Judgment (Chief Justice Rehnquist)
 I agree with the Court that there is scant evidence in the record that diversity was the real reason that VA decided to maintain VMI as
men only.
o But, unlike the majority, I would consider only evidence that postdates Hogan, and would draw no negative inferences form
the State’s actions before that time.
 Even if diversity in educational opportunity were the State’s actual objective, the State’s position would still be problematic.
o The difficulty with its position is that the diversity benefited only one sex; there was single-sex public education available for
men at VMI, but no correspondingly singe-sex public education available for women.
 I do not think that the state’s options were as limited as the majority may imply
o Had VA made a genuine effort to devote comparable public resources to a facility for women, and followed through on such
a plan, it might well have avoided an equal protection violation.
 It is not the “exclusion of women” that violates the Equal Protection Clause, but the maintenance of an all-men school without
providing any – much less a comparable – institution for women.
o Accordingly, an adequate remedy might be a demonstration by VA that its interest in educating men in a single-sex
environment is matched by its interest in educating women in a single-sex institution.
o It would be sufficient is the two institutions offered the same quality of education and were of the same overall caliber
 In the end, the women’s institution VA proposes, VWIL, fails as a remedy, because it is distinctly inferior to the
exiting men’s institution and will continue to be for the foreseeable future.
Dissent (Justice Scalia)
 The tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition
of sending only men into military combat.
o The assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled into law.
 Although the Court in two places recites the test as stated in Hogan, the Court proceeds to interpret “exceedingly persuasive
justification” in a fashion that contradicts the reasoning of Hogan and out other precedents
 58
o Only the amorphous “exceedingly persuasive justification” phrase, and not the standard elaboration of intermediate
scrutiny, can be made to yield this conclusion that VMI’s single-sex composition is unconstitutional
o There is simply no support in our cases for the notion that a sex-based classification is invalid unless it relates to
characteristics that had true in every instance.
 If the question of the applicable standard of review is sex-based classifications were to be reconsidered, the stronger argument would
be not for elevating the standard to strict scrutiny, but for reducing it to rational-basis review.
o It is hard to consider women a “discrete and insular minority” unable to employ the “political processes ordinarily to be relied
upon,” when they constitute a majority of the electorate.
 The single-sex instruction is an approach substantially related to that interest should be evident enough from the long and continuing
history in this country of men’s and women’s colleges.
 The relevance of the 180s Study committee is that its very creation, its sober 3-year study, and the analysis it produced, utterly refute
the claim that VMI has elected to maintain its all-male student-body composition for some misogynistic reason.
 Under the constitutional principles announced and applied today, single-sex education is unconstitutional
o By going through the motions of applying a balancing test, the Court creates the illusion that government officials in some
future case will have a clear shot at justifying some sort of single-sex public education.
 The potential of today’s decision for widespread disruption of existing institutions lies in its application to private single-sex education

SEX EQUALITY AND SEX DIFFERENCES

2. “Real” Differences?
 What about laws that discriminate with respect to biologically sex-related characteristics like pregnancy or the capacity to become
pregnant?
o Traditional equal protection principles require that only those who are similarly situated should be treated alike.
3. Pregnancy Classifications
 In Geduldig v. Aiello (1974), the court held that exclusion of “disability that accompanies normal pregnancy and childbirth” from
CA’s disability insurance system did not constitute “invidious discrimination.”
o Justice Stewart ‘s majority opinion claimed that the challenged classification was not “based upon gender as such” and
therefore applied very deferential standard of review:
 While it is true that only women can become pregnant, it does not follow that every legislative classification
concerning pregnancy is a sex-based classification like those considered in Reed and Frontiero
 The program divides potential recipients into two groups – pregnant women and non-pregnant persons
 While the first group is exclusively female, the second includes members of both sexes
 There is no evidence in the record that the selection of the risks work to discriminate against any definable
group or class in terms of the aggregate risk protection derived by that group or class from the program.
o Justice Brennan’s dissent, joined by Douglas and Marshall, concluded that there had been sex discrimination in CA’s
“singling out for less favorable treatment a gender-linked disability peculiar to women even while men receive full
compensation for all disabilities suffered, including those that affect only or primarily their sex, such as prostatectomies,
circumcision, hemophilia, and gout.
4. Gender-Specific statutory rape laws
 In Michael M. v. Superior Court (1981), the Court upheld CA’s “statutory rape” law, which punished the male, but not the female
participant in sexual intercourse.
o The challenger was a 17-year old male who had engaged in intercourse with a 16-year old female.
o Justice Rehnquist’s plurality stated:
 Because equal protection does not require ‘things which are different in fact to be treated in law as though they
were the same,’ this Court has consistently upheld statutes where the gender classification is not invidious, but
rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances
 We are satisfied not only that the prevention of illegitimate pregnancy is at least one of the “purposes” of the statue,
but also hat the State has a strong interest in preventing such pregnancy.
 The only question for us is whether the legislation violates equal protection, not whether its supporters may
have endorsed it for reasons no longer accepted.
 Petitioner’s argument must fail because it is a familiar practice of constitutional law that this Court will
not strike down an otherwise constitutional statute on the basis of an allegedly illicit legislative motive.
 The risk of pregnancy itself constitutes a substantial deterrence to young females.
 No similar natural sanctions deter males
 A criminal sanction imposed solely on males thus serves to roughly “equalize” the deterrents on the sexes.
 We are unable to accept the contention that the statute is impermissibly underinclusive and must be broadened so as
to hold the female as criminally liable as the male
 The State persuasively contends that a gender-neutral statute would frustrate its interest in effective
enforcement because a female is surely less likely to report violations of the statute if she herself would be
subject to criminal prosecution.
o Justice Brennan’s dissent, joined by White and Marshall, objected that none of the 3 opinions comprising the majority “fairly
applies the equal protection analysis this court has so carefully developed since Craig.”
o He added that it was:
 Perhaps because the gender classification in CA’s statutory rape law was initially deigned to further outmoded
sexual stereotypes regarding the special need to protect young women’s chastity., rather than to reduce the
 59
incidence of teenage pregnancies, that the State has been unable to demonstrate a substantial relationship
between the classification and its newly asserted goal.
o A separate dissent by Justice Stevens stated that a statute such as this, “applicable to only half of the joint participants in the
risk-creating conduct,” was impermissible sex discrimination
 Surely, if we examine the problem form the point of view of society’s interest in preventing the risk-creating conduct
from occurring at all, it is irrational to exempt 50% of the potential violators
 A rule that authorizes punishment of only one of two equally guilty wrongdoers violates the essence of the
constitutional requirement that the sovereign must govern impartially.
5. Exclusion of Women from the military draft
 In Rostker v. Goldberg (1981), the Court rejected a claim under the equal protection aspect of the 5 th Amendment due process, that
the Military Selective Service Act (MSSA) was unconstitutional in “authorizing the President to require the registration of males and
not females.”
o Emphasizing that the purpose of draft registration was “to facilitate any eventual conscription,” Justice Rehnquist’s majority
opinion noted:
 In deciding the question before us we must be particularly careful not to substitute our judgment of what is desirable
for that of Congress, or our own evaluation of evidence for a reasonable evaluation by the Legislative Branch
 This is not a case of Congress arbitrarily choosing to burden one of two similarly situated groups
 Men and women, because of the combat restrictions on women, are simply not similarly situated for
purposes of a draft or registration for a draft.
 The exemption is closely related to Congress’ purpose in authorizing registration.
o Justice Marshall’s dissent, joined by Brennan, stated:
 The Court today places its imprimatur on one of the most potent remaining public expressions of ancient canards
about the proper role of women.
 The Government makes no claim that preparing for a draft of combat troops cannot be accomplished just as
effectively by registering both men and women but drafting only men if only men turn out to be needed.
 Testimony about personnel requirements in the event of a draft established that women could fill at least
80,000 of the 650,000 positions for which conscripts would be inducted.
o Justice White also dissented
 Since Rostker, Congress has repealed the statutory bar on women’s eligibility for combat positions.
6. Discrimination against unmarried fathers
 The Court has applied intermediate scrutiny to some laws disfavoring fathers of children born out of wedlock on the ground that they
involve sex discrimination.
 Caban v. Mohammad (1979), invalidated a NY law granting the mother but not the father of an illegitimate child the right to block
the child’s adoption by withholding consent
o Justice Powell’s majority opinion concluded that the law was “another example of ‘overbroad generalizations’ in gender-
based classifications” and that “no showing has been made that the distinction bears a substantial relationship to the
proclaimed interests of the State in promoting the adoption of illegitimate children.”
 The facts of the case, he added, demonstrated that “an unwed father may have a relationship with his children fully
comparable to that of a mother.”
o Justice Stevens’s dissent, joined by Chief Justice Burger and Rehnquist, argued that the real differences between the male and
female, especially during the child’s infancy, were “significant, and that these ‘natural differences between unmarried fathers
and mothers made it probable that the mother, and not the father or both parents, would have custody of the newborn infant.”
 The court in Nguyen v. INS (2001), upheld a law that treated children born outside of wedlock to one parent who was a citizen and
one parent who was a noncitizen differently depending on whether it was the mother or the father who was the citizen
o Under 8 USC §1409, children with citizen-moths are automatically considered citizens at birth, provided the mother has met
certain requirements.
 But children with citizen-fathers must meet 3 requirements:
 Establishment of the “blood relationship” by “clear and convincing evidence,”
 The father’s written promise of financial support; and
 And fulfillment before the child’s 18th birthday of one of 3 formal recognitions of paternity – legal
legitimation, the father’s declaration of paternity under oath, or a court order of paternity.
o Justice Kennedy upheld the distinction as “based on the significant difference between a mother’s and a father’s relationships
to the potential citizen at the time of birth,” and “substantially related to the achievement” of “two important governmental
objectives: assuring that a biological parent-child relationship exists and ensuring that the child and citizen patent have an
opportunity to develop a relationship providing a connection between child and citizen parent and, in turn, the US
 The mother knows that the child is in being and is hers and has an initial point of contact with him
 It is not always certain that a father will know that a child was conceived, nor is it always clear that even
the mother will be sure of the father’s identity, particularly in the case of a child born overseas and out of
wedlock
 The statute at issue is not marked by misconception and prejudice, nor does it show disrespect for either class.
 Equal protection does not forbid Congress to address the problem at hand in a manner specific to each
gender.
o In a concurrence joined by Justice Thomas, Justice Scalia wrote that, even if Nguyen had stated an Equal Protection claim,
the Court would “lack power to provide conferral of citizenship on a basis other than that prescribed by Congress.”
 60
o Justice O’Connor dissented, finding that the law was not narrowly tailored to the goal of verifying the parent-child
biological relationship, given the “efficacy and availability of modern technology” such as DNA testing
 She further criticized the majority both for ignoring “the availability of sex-neutral alternatives,” and for overstating
the evidentiary difference between proof of maternity and proof of paternity
 Equal protection demands more when a facially sex-based classification is at issue.
o Justice O’Connor charged that the law was based “not in biological differences but instead in a stereotype – i.e., ‘the
generalization that mothers are significantly more likely than fathers to develop caring relationships with their children
7. The role of “real” Differences
 Some commentators have argued that the Court’s general insistence on formal equality – on an essentially gender-blind Constitution –
in fact causes material harm to women by ignoring important sex-based differences, or by holding women to standards that have been
established principally by men in a sexually unequal past

SEX-BASED PURPOSE AND EFFECT

 In Personnel Administrator of Mass. v. Feeney (1979), the Court relied on the reasoning in the racial disparate impact cases
Washington v. Davis and Arlington Heights to reject a sex discrimination challenge to a MA law granting “absolute lifetime”
preference to veterans for state civil service positions, even though “the preference operates overwhelmingly to the advantage of
males.”
o Under the law, “all veterans who qualify for state civil service positions must be considered for appointment ahead of any
qualifying non-veterans.”
 Over 98% of the veterans in MA were male; only 1.8% were female
o Justice Stewart’s opinion stated that the principles of Washington v. Davis and Arlington Heights “apply with equal force to a
case involving alleged gender discrimination.
 A two-fold inquiry is thus appropriate
 The first question is whether the statutory classification is indeed neutral in the sense that it is not gender-
based
 If not, the second question is whether the adverse effect reflects invidious gender-based discrimination
o In this second inquiry, impact provides an “important starting point,” but purposeful
discrimination is “the condition that offends the Constitution.”
 The DC made two central findings:
 First, that the law serves legitimate and worthy purposes; and
 Second, that the absolute preference was not established for the purpose of discriminating against women
o Thus, the distinction between veterans and non-veterans here is not a pretext for gender
discrimination
 This is not a law that can plausibly be explained only as a gender-based classification
 Veteran status is not uniquely male
 Although few women benefit form the preference, the non-veteran class is not substantially all-female
o The distinction made by the law is quite simply between veterans and non-veterans, not between
men and women.
o On the second part of the inquiry, Justice Stewart stated:
 The dispositive question is whether the appellee has shown that a gender-based discriminatory purpose has, at least
in some measure, shaped the MA veterans’ preference legislation.
 She points to two basic factors:
 The first is the nature of the preference, which is said to be demonstrably gender-based in the sense that it
favors a status reserved under federal military policy primarily to men
 The second concerns the impact of the absolute lifetime preference upon the employment opportunities of
women, an impact claimed to be too inevitable to have been unintended.
 There are two serious difficulties with this argument
 First, it is wholly at odds with the DC’s central finding that MA has not acted for the purpose of
discriminating against women
 Second, it cannot be reconciled with the assumption made by both the appellee and the DC that a more
limited hiring preference for veterans could be sustained.
 Invidious discrimination does not become less so because the discrimination accomplished is of a lesser magnitude
 The DC’s conclusion that the law was not originally enacted or subsequently reaffirmed for the purpose of giving an
advantage to males as such necessarily compels the conclusion that the State intended nothing more than to prefer
“veterans.”
 To reason that an intent to exclude women from significant public jobs was merely to restate the fact of
impact, not to answer the question of intent.
 The basic distinction between veterans and non-veterans having been found not-gender-based, and the goals of the
preference having been found worthy, the law must be analyzed as is any other neutral law that casts a greater
burden upon women as a group than upon men as a group
 The appellee’s ultimate argument rests upon the presumption, common to the criminal and civil law, that a
person intends the natural and foreseeable consequences of his voluntary actions.
 “Discriminatory purpose,” however, implies more than intent as volition or intent as awareness of consequences
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 It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular
course of action at least in part “because of” not merely “in spite of,” its adverse effects upon an
identifiable group.
o This is not to say that the inevitability or foreseeability of consequences of a neutral rile has no
bearing upon the existence of discriminatory intent
o But in this inquiry, an inference is a working tool, not a synonym for proof
 Where as here, the impact is essentially an unavoidable consequence of a legislative
policy that has in itself always been deemed to be legitimate, and when, as here, the
statutory history and all of the available evidence affirmatively demonstrate the opposite,
the inference simply fails to ripen into proof.
 When the totality of legislative actions establishing and extending the MA veterans’ preference are considered, the
law remains what it purports to be: preference for veterans of either sex over non-veterans of either sex, not for men
over women.
o Justice Stevens, joined by Justice White, concurred, and added:
 If a classification is not overtly based on gender, I am inclined to believe the question whether it is covertly gender-
based is the same as the question whether its adverse effects “reflect invidious gender-based discrimination.”
 For me the answer is largely provided by the fact that the number of males disadvantaged by the law is sufficiently
large – and sufficiently close to the number of disadvantaged females
o Justice Marshall, joined by Brennan, dissented:
 In my judgment, the law evinces purposeful gender-based discrimination
 The absolute preference formula has rendered desirable state civil service employed an almost exclusively
male prerogative.

Section 4 – Discrimination Based on Other Potentially “Suspect” Classifications (PG 793)

SEXUAL ORIENTATION
 While classifications based on sexual orientation have not been formally acknowledged as suspect, the Court has struck down state
sodomy laws, a state constitutional amendment excluding sexual orientation from the reach of state antidiscrimination laws, and laws
defining marriage so as to preclude official recognition of same-sex marriage in both federal and state laws.
ALENAGE
 The Equal Protection Clause does not condition equal protection on citizenship
 Undocumented aliens have not been accorded heightened equal protection scrutiny, with the exception of undocumented children
barred from attending public school, see Plyler v. Doe (1982)
o In Plyler, the Court explicitly rejected “the claim that ‘illegal aliens’ are a ‘suspect class.’”
1. Strict Scrutiny of State Alienage Classifications
a. Welfare Benefits
 In Graham v. Richardson (1971), the Court held that states could not deny welfare benefits to noncitizens
o Justice Blackmun announced:
 Aliens as a class are a prime example of a “discrete and insular” minority for whom such heightened judicial
solicitude is appropriate.
 Congress has not seen fit to impose any burden or restriction on aliens who become indigent after their entry into
the US
 State laws that restrict the eligibility of aliens for welfare benefits because of their alienage conflict with
these overriding national policies in an area constitutionally entrusted to the Federal Government
b. Bar Admission
 Two years after Graham, the Court in In re Griffiths (1973), applied strict scrutiny prescribed by Graham to invalidate CT’s
exclusion of resident aliens form law practice.
o Justice Powell found that neither the “undoubted interest in high professional standards” not the role of lawyers in protecting
clients’ interests and serving as “officers of the Court” established that the State “must exclude all aliens form the practice of
law.”
c. Civil Service Jobs
 The court likewise invalidated NY’s law providing that only American citizens might hold permanent positions in the competitive
classified civil service
 In Sugarman v. Dougall (1973), Justice Blackmun emphasized that the state barrier did not cover all high policymaking positions but
covered a number of menial ones
o Accordingly, the restriction had “little, if any, relationship” to the State’s “substantial” interest “in having an employee of
undivided loyalty.”
o Justice Blackmun cautioned:
 That a State may not, in an appropriately defined class of positions, require citizenship as a qualification for office.
 Such state action is not wholly immune form scrutiny under equal protection.
 But our scrutiny will not be so demanding where we deal with matters resting firmly within a State’s
constitutional prerogatives.
o Justice Rehnquist’s dissent questioned any extension of suspect classification analysis beyond the race area.

2. The “Governmental Function” Exception

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a. Police Officers
 In Foley v. Connelie (1978), Chief Justice Burger’s majority opinion held that NY could bar employment of aliens as state troopers
o He argued:
 To require every statutory exclusion of aliens to clear the high hurdle of “strict scrutiny” would “obliterate all the
distinctions between citizens and aliens, and thus depreciate the historic values of citizenship.”
 The State need only justify its classification by a showing of some rational relationship between the interests sought
to be protected and the limiting qualification.
o He found that the state police force fell within the Douglas exception, and concluded:
 In the enforcement and execution of the laws the police function is one where citizenship bears a rational
relationship to the special demands of the particular position.
b. Public School Teachers
 Ambach v. Norwick (1979), applied the public function exception to hold that a state may refuse to employ as elementary and
secondary school teachers aliens who are eligible for citizenship but who refuse to seek naturalization.
o Justice Powell emphasized that a less demanding scrutiny was required when aliens were excluded form “state functions”
that were “bound up with the operation of the State as a governmental entity.”
o He stressed the importance of public schools in preparing individuals for participation as citizens and in “the preservation of
the values on which our society rests.”
c. Notaries Public
 Bernal v. Fainter (1984), identified a limit to the public function exception: the Court found that the exception could not justify the
TX barrier to aliens becoming notaries public
o Justice Marshall stated “We emphasize, as we have in the past, that the political-function exception must be narrowly
construed.
 He relied on the fact that their duties, although important, were “essentially clerical and ministerial.”
o Justice Rehnquist was the sole dissenter.
3. Alienage Restrictions and Federal Preemption
 Toll v. Moreno (1982) struck down the University of MD’s policy of granting preferential tuition and fees treatment to students with
“in-state” status.
o Justice Brennan’s opinion relied entirely on federal preemption:
 In light of Congress’ explicit decision not to bar such aliens form acquiring domicile, the State’s decision to deny
“in-state” status to them, solely on account of their federal immigration status, surely amounts to an ancillary
“burden not contemplated by Congress’ in admitting these aliens to the US.
4. Federal Restrictions on Aliens
a. Public Employment
 In Hampton v. Mow Sun Wong (1976), the Court invalidated a Civil Service Commission (CSC) regulation barring resident aliens
form employment in the federal competitive service – even while recognizing “overriding national interests may provide a
justification for a citizenship requirement in the federal service through an identical requirement may not be enforced by a State.”
o Justice Stevens found it unnecessary to determine the substantive validity of the alien ban under the equal protection
component of the 5th Amendment due process and rested instead on the “narrower” ground that “essential procedures” had
not been followed – “procedures” involving the source and the deliberativeness of the regulation:
 Since these residents were admitted as a result of decisions made by the Congress and the President, due process
requires that the decision to impose the deprivation of an important liberty be made either at a comparable level of
government or, if it is to be permitted to be made by the CSC, that it be justified by reasons which are properly the
concern of that agency
 These structural due process requirements had not been satisfied here
o He was willing to assume “that if the Congress or the President had expressly imposed the citizenship requirement, it would
be justified by the national interest in providing an incentive for aliens to become naturalized, or by possibly even as
providing the President with an expendable token for treaty negotiating purposes.”
 But those were not interests “which can reasonably be assumed to have influenced the CSC”: “we are not willing to
presume that the agency was deliberately fostering an interest so far removed from its normal responsibilities.”
o Justice Rehnquist’s dissent, joined by chief Justice Burger, charged the majority with enunciating “a novel conception” that
“inexplicably melds together the concepts of equal protection, procedural and substantive due process.”
b. Medical Benefits
 In Mathews v. Diaz (1976), the Court held that Congress may condition an alien’s eligibility for participation in a federal Medicare
program on (a) admission for permanent residence and (b) continuous residence in the US for five years
o Justice Stevens applied a deferential standard of review this time
 He insisted that congressional provision of some benefits to citizens “does not require it to provide like benefits for
all aliens
o Justice Steven’s scrutiny was extremely deferential:
 The reasons that preclude judicial review of political questions also dictate a narrow standard of review of
decisions made by the Congress or the President in the area of immigration and naturalization.
DISABIITY, AGE, POVERTY

Cleburne v. Cleburne Living Center, Inc. – SCOTUS – 1985 (Justice White) (PG 799)

PH and Outcome/Facts
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 A TX city denied a special use permit for the operation of a group home for the mentally retarded, acting pursuant to a municipal
zoning ordinance requiring permits for such homes
 The 5th circuit held that mental retardation is a “quasi-suspect” classification and that the ordinance violated equal protection because
it did not substantially further an important governmental purpose
 In July, 1980, respondent Jan Hannah purchased a building in the City of Cleburne, TX, with the intention of leasing it to Cleburne
Living Centers, Inc. (CLC), for the operation of a group home for the mentally retarded
o After a public hearing on CLC’s application, the city council voted three to one to deny a special use permit.
Issue
 Is the ordinance in violation of equal protection?
Reasoning
 The general rule under equal protection is that legislation is presumed to be valid and will be sustained if the classification drawn by
the statute is rationally related to a legitimate state interest
o The general rule gives way, however, when a statute classifies by race, alienage or national origin.
o Legislative classifications based on gender also call for a heightened standard of review.
 We have declined, however, to extend heightened review to differential treatment based on age
o Where individuals in the group affected by a law have distinguishing characteristics relevant to interests the state has the
authority to implement, the courts have been very reluctant to closely scrutinize legislative choices as to whether, how and to
what extent those interests should be pursued.
 First, it is undeniable that those who are mentally retarded have a reduced ability to cope with and function in the everyday world.
o They are thus different, immutably so, in relevant respects, and the states’ interest in dealing with and providing for them is
plainly a legitimate one.
 Heightened scrutiny involves substantive judgments about legislative decisions, and we doubt that the predicate for
such judicial oversight is present where the classification deals with mental retardation.
 Second, both national and state lawmakers have been addressing the difficulties of the mentally retarded in a manner that belies a
continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary
o Even assuming that many of these laws would survive scrutiny, merely requiring the legislature to justify its efforts in these
terms may lead it to refrain from acting at all.
o Much recent legislation intended to benefit he retarded might be perceived to disadvantaged them.
 The Education of the Handicapped Act, for example, requires an “appropriate” education, not one that is equal in all
respects to the education of non-retarded children
o Given the wide variation in the abilities and needs of the retarded themselves, governmental bodies must have a certain
amount of flexibility and freedom from judicial oversight.
 Third, the legislative response negates any claim that the mentally retarded are politically powerless in the sense that they have no
ability to attract the attention of the lawmakers
 Fourth, if the large and amorphous class of the mentally retarded were deemed quasi-suspect, it would be difficult to find a principled
way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot
themselves mandate the desired legislative responses and who can claim some degree of prejudice form at least part of the public at
large.
o We are reluctant to set out on that course, and we decline to do so.
 Because mental retardation is a characteristic that the government may legitimately take into account in a wide range of decisions, and
because both state and federal governments have recently committed themselves to assisting the retarded, we will not presume that
any given legislative action, even one that disadvantages retarded individuals, is rooted in considerations that the Constitution will not
tolerate.
o The rational basis standard of review, we believe, affords government the latitude necessary both to pursue policies designed
to assist the retarded in realizing their full potential, and to freely and efficiently engage in activities that burden the retarded
in what is essentially an incidental manner.
 The City insists on a special permit for the group home here and it does so because it would be a facility for the mentally retarded.
o In our view the record does not reveal any rational basis for believing that the home would pose any special threat to the
city’s legitimate interests
 The DC found that the City’s Council’s insistence on the permit rested on several factors
o First, the Council was concerned with he negative attitude of the majority of property owners located within 200 feet of the
group home
o Second, the Council was concerned that the facility was across the street from a junior high school, and feared that the
students might harass the occupants of the home.
o The third objection to the home’s location was that it was located on “a five hundred year flood plain.”
 If there is no concern about legal responsibility with respect to other uses that would be permitted in the area, such
as boarding and fraternity houses, it is difficult to believe that the groups of mildly or moderately mentally retarded
individuals who would live at the home would present any different or special hazard.
o Fourth, the Council was concerned with the size of the home and the number of people that would occupy it.
 The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded.
Holding
 We hold that a lesser standard of scrutiny is appropriate, but conclude that under that standard the ordinance is invalid as applied in
this case.
Concurrence (Justice Stevens and Chief Justice Burger)
 I have never been persuaded that these so called “standards” adequately explain the decisional process.
 64
o Cases involving classifications based on alienage, illegal residency, illegitimacy, gender, age, or – as in this case – mental
retardation, do not fit well into sharply defined classifications.
 The word “rational” – for me at least – includes elements of legitimacy and neutrality that must always characterize the performances
of the sovereign’s duty to govern impartially.
 The COA correctly observed that the mentally retarded “have been subjected to a history of unfair and often grotesque mistreatment.”
o The record convinces me that this permit was required because of the irrational fears of neighboring property owners, rather
than for the protection of the mentally retarded persons who would reside in respondent’s home.
Concurrence in Judgment/Dissent in part (Justice Marshall, Brennan and Blackmun)
 The rational basis test invoked today is most assuredly not the rational basis test of Lee Optical
 When a zoning ordinance works to exclude the retarded from all residential districts in a community, these two considerations require
that the ordinance be convincingly justified as substantially furthering legitimate and important purposes.
o First, the interest in establishing group homes is substantial.
o Second, the mentally retarded have been subject to a “lengthy and tragic history” of segregation and discrimination that can
only be called grotesque.
 The searching scrutiny I would give to restrictions on the ability of the retarded to establish community group homes leads me to
conclude that Cleburne’s vague generalizations for classifying the “feeble minded” with drug addicts, alcoholics, and the insane, are
not substantial or important enough to overcome the suspicion that the ordinance rests on impermissible assumptions or outmoded and
perhaps invidious stereotypes.

THE CABINING OF SUSPECT CLASSFICATIONS

1. Age Classifications
 An attempt to establish heightened scrutiny for age-based classifications failed in Massachusetts Bd. Of Retirement v. Murgia
(1976), in which the per curiam opinion applied rationality standard in sustaining a mandatory retirement law for uniformed state
police officers
o The majority rejected a suspect classification claim:
 The class of uniformed State Police Officers over 50 does not constitute a suspect class for purposes of equal
protection analysis
 Such persons have not experienced a “history of purposeful unequal treatment” or been subjected to
unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities
o Justice Marshall’s dissent observed:
 The court is quite right in suggesting that distinctions exist between the elderly and traditional suspect classes such
as Negroes
 But the elderly are undoubtedly discriminated against, and when legislation denied them an important benefit –
employment – I conclude that to sustain the legislation here, the State must show a reasonably substantial interest
and a scheme reasonably closely tailored to achieving that interest.
2. Poverty and Wealth Classifications
 The trouble is that, unlike de facto racial classification which usually must seek its justifications in purposes completely distinct from
its race-related impacts, a de facto pecuniary classification typically carries a highly persuasive justification inseparable form the hard
choices upon the financially straitened.
o The Court in fact has repeatedly declined to find wealth classifications alone sufficient to trigger strict scrutiny.
 In James v. Valtierra (1971), Justice Black’s majority opinion rejected an equal protection challenge to a CA constitutional
requirement that “no low rent housing project shall hereafter be developed by any state public body” without prior approval in a local
referendum.
o He emphasized that the provision did not involve “distinctions based on race,” and rejected the contention that the provision
“singled out” advocates of low-income housing by mandating a referendum while many other referenda only took place upon
citizen initiative.
o Justice Marshall’s dissent insisted that the provision “on its face constitutes invidious discrimination”: it was “an explicit
classification on the basis of poverty – a suspect classification which demands exacting judicial scrutiny.”

SECTION 3 – CONGRESS’S CIVIL RIGHTS ENFORMCEMENT POWERS

Chapter 10 – Congress’s Civil Rights Enforcement Powers (PG 851)

 The first theme – the applicability of constitutional guarantees to seemingly private conduct – reflects the fact that the 14th and 15th
Amendments, like most limits in the Constitution, are addressed to government action, not to private behavior.
o From the beginning, the Court’s interpretation of the 14 th Amendment have reiterated “the essential dichotomy set forth in
that Amendment between derivation by the State, subject to scrutiny under its provisions, and private conduct, ‘however
discriminatory and wrongful,’ against which the 14 th Amendment holds no shield.”
 The second theme – the Role of Congress – reflects the fact that each of the three post-Civil War amendments grants Congress
authority to protect civil rights
o The final sections of the 13th, 14th, and 15th Amendments each give Congress the “power to enforce” such amendment “by
appropriate legislation.”
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Section 1. The Civil Rights Statutes of the Reconstruction Era

 The adoption of the 13th, 14th, and 15th Amendments, and the enactment of the Civil Rights Acts aimed to fulfill “one pervading
purpose” underlying all of these amendments: “the freedom of the slave race, the security and firm establishment of that freedom, and
the protection of the newly-made freeman and citizen form the oppressions of those who had formerly exercised unlimited dominion
over him.” – Slaughter-House Cases
5. The Second Wave of civil Rights Legislation in the 1960s
 Renewed Congressional efforts at civil rights enforcement began with the Civil Rights Act of 1957, which, like the civil Rights Act of
1960, primarily expanded remedies against racial discrimination in voting.
o Titles I and VIII contained new voting rights provisions, and Titles III and IV dealt with desegregation of schools and other
public functions.
 In 1968 – after the assassination in April 1968 of Rev. Dr. Martin Luther King, Jr. – new legislation was enacted, adding new federal
criminal laws against violent deprivations of civil rights.

Section 2. The Requirement of State Action

Civil Rights Cases – SCOTUS – 1883 (Justice Bradley) (PG 854)

Facts
 Section 1 of the Civil Rights act of 1875 provided: “All persons within the jurisdiction of the US shall be entitled to the full and equal
enjoyment of the accommodations, advantages, facilities, and privileges subject only to the conditions and limitations established by
law, and applicable alike to citizens of every race and color, regardless of any previous conditions of servitude.”
 Section 2 made violation a misdemeanor and also authorized aggrieved persons to recover $500 “for every such offense.”
 This decision involved 5 cases, from KS, CA, MO, NY and TN
o Four of the cases were criminal indictments; the fifth, an action for the civil penalty
 The cases grew out of exclusion of African-Americans from Hotels, Theaters, and railroads.
Issue
 Has congress the power to make such a law? If so, from what constitutional authority?
Reasoning
 The power is sought first in the 14th Amendment
o Individual invasion of individual rights is not the subject-matter of the amendment
 The last section of the amendment invests Congress with power to enforce it by appropriate legislation.
o To adopt appropriate legislation for correcting the effects of such prohibited State laws and State acts, and thus to render
them effectually null, void, and innocuous.
 This is the legislative power conferred upon Congress, and this is the whole of it.
 But this legislation declares that certain acts committed by individuals shall be deemed offences, and shall be prosecuted and punished
by proceedings in the federal courts.
o In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society
towards each other, without referring in any manner to any supposed action of the State or its authorities.
 Civil rights such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of
individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings.
o An individual cannot deprive a man of his right to vote, to hold property, to buy and sell, to sue in the courts, or to be a
witness or a juror.
o But, unless protected in these wrongful acts by some shield of State law or State authority, he cannot destroy or injure the
right; he will only render himself amenable to satisfaction or punishment; and amendable therefor to the laws of the State
where the wrongful acts are committed.
 It is clear that the law in question cannot be sustained by any grant of legislative power made to Congress by the
14th Amendment.
 Justification for the law is also sought in the 13th Amendment
o It is assumed that the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power
to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the US; and that this is sufficient
authority for enacting this law.
o It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may
see fit to make as to the guests he will entertain.
Holding
 We are forced to the conclusion that such ac act of refusal has nothing to do with slavery or involuntary servitude, and that if it is
violative of any right of the party, his redress is to be sought under the laws of the State; or if those laws are adverse to his rights and
do not protect him, his remedy will be found in the corrective legislation Congress has adopted, or may adopt, for counteracting the
effect of State laws, or State action, prohibited by the 14th Amendment
Dissent (Justice Harlan)
 I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a
subtle and ingenious verbal criticism.
o That there are burdens and disabilities which constitute badges of slavery and servitude, and that the power to enforce by
appropriate legislation the 13th Amendment may be exerted by legislation of a direct and primary character, for the
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eradication, not simply of the institution, but of its badges and incidents, are propositions which ought to be deemed
indisputable.
 I hold that since slavery was the moving or principal cause of the adoption of the 13 th Amendment, and since that institution rested
wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection
against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races
o Congress, therefore, may enact laws to protect that people against the deprivation, because of their race, of any civil rights
granted to other freemen in the same State.
 It remains not to inquire what are the legal rights of colored persons
o First, as to public conveyances on land and water
 Such being the relations these corporations hold to the public, it would seem that the right of a colored person to use
an improved public highway is as fundamental as are any of the rights which my brethren concede to be so far
fundamental as to be deemed the essence of civil freedom.
o Second, as to inns
 The public nature of his employment forbids him from discriminating against any person asking admission
o Third, as to places of public amusement.
 A license from the public to establish a place of public amusement, imports, in law, equality of right, at such places,
among all the members of that public
 The assumptions that the 14th Amendment consists wholly of prohibitions upon State laws and State proceedings in hostility to its
provisions, is unauthorized by its language.
o The citizenship acquired, by the colored race may be protected, not alone by the judiciary, but by congressional legislation of
a primary, direct character.
o But with what rights, privileges, or immunities did this grant invest them?
 There is one, if there be no other – exemption from race discrimination in respect of any civil right belonging to
citizens of the white race in the same State.
 In every material sense applicable to the practical enforcement of the 14 th Amendment, railroad corporations, keepers of inns, and
managers of places of public amusement are agents or instrumentalities of the State, because they are charged with duties to the
public, and are amenable, in respect of their duties and functions, to governmental regulation.
o Today, it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in
their freedom and citizenship.
o If the constitutional amendment be enforced, according to the intent with which they were adopted, there cannot be, in this
republic, any class of human beings in practical subjection to another class.

THE SCOPE AND LIMITS OF STATE ACTION AFTER THE CVIL RIGHTS CASES

1. The Policies Underlying the State Action Requirement

 The Civil Rights Cases invalidated Congress’s regulation of private parties for the purpose of preventing race discrimination.
o The same state action limitation that the Civil Rights cases imposed upon Congress’s exercise of powers under §5 of the 14 th
Amendment also applies to the federal courts when adjudicating individual causes of action brought directly under §1 of the
14th Amendment
 The civil Rights Cases mention two purposes served by such a requirement:
o 1. Federalism, or the importance of respecting state prerogatives to govern their own citizens; and
o 2. Liberty, or the importance of a sphere of individual liberty to act free of constitutional norms.
2. “Public Function” as a basis for state action
 In Marsh v. Alabama (1946), the court held that a “company town” may not limit speech through restrictions that would violate the
First Amendment (incorporated against the states by the 14 th Amendment) if imposed by a municipality
o Chickasaw, AL, was owned by the Gulf Shipbuilding Corporation.
 Except for its private ownership, it had “all the characteristics of any other American town.”
o Marsh, a Jehovah’s Witness, was convicted because she was distributing religious literature without permission
o Justice Black’s majority opinion held that a state may not “impose criminal punishment on a person who undertakes to
distribute religious literature on the premises of a company-owned town contrary to the wishes of the town’s management
 Since its 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.
 In Amalgamated Food employees Union v. Logan Valley Plaza Inc., Justice Marshall’s opinion concluded that a shopping center was
“clearly the functional equivalent to the business district of Chickasaw involved in Marsh.
 The public function test was relied on as an alternative ground in Evans v. Newton (1966), which held invalid under the Equal
Protection Clause the operation of a part in Macon, GA, for “whites only” pursuant to a trust established in Senator Bacon’s 1911 will
o Justice Douglas explained:
 The service rendered even by a private park of this character is municipal in nature
 Mass recreation through the use of parks is plainly in the public domain; and state courts that aid private parties to
perform that public function on a segregated basis implicate the State in conduct proscribed by the 14 th Amendment.
 Nixon v. Herndon (1927) held unconstitutional under the 14 th Amendment the exclusion of blacks from Democratic primaries
expressed on the face of a TX law.
o But Grovey v. Townsend found the convention an organ of a voluntary, private group, not of the state
 Buy Grovey was overruled 9 years later, in Smith v. Allwright (1944), which found that the white primary established by the state
convention violated the 15th Amendment.
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 th
Terry v. Adams (1953) found the 15 Amendment violated by the exclusion of African-American voters form the “pre-primary”
elections of the Jaybird Democratic Association, a “voluntary club” of white Democrats.
o Justice Black, joined by Douglas and Burton, found that, although the Amendment “excludes social or business clubs,” it
barred race discrimination in “any election” in which public officials are chosen
o Justice Frankfurter found here that, county election officials were in effect “participants in the scheme.”
o Justice Clark, joined by Chief Justice Vinson, Reed and Jackson, concurred on the ground that the Jaybirds operated “as an
auxiliary of the local Party” and were therefore subject to the principles of Smith v. Allwright.

Shelley v. Kraemer – SCOTUS – 1948 (Chief Justice Vinson) (PG 861)

Facts
 This case arose out of challenges to the judicial enforcement in MO and MI of agreements among property owners to exclude persons
of designated races
o In the MO case, a 1911 agreement signed by 30 out of 39 property owners in the area restricted occupancy for 50 years to
persons of “the Caucasian race” and excluded “people of the Negro or Mongolian race.”
 African Americans attempted to purchase property subject to the racially restrictive covenants
o Respondents sought to enjoin their use of the property
Issue
 Does the state action of enforcing privately-made racially restrictive covenants bring this case under the 14 th Amendment protections?
Reasoning
 It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the 14 th Amendment are
the rights to acquire, enjoy, own, and dispose of property
o Here the particular patterns of discrimination and the areas in which the restrictions are to operate, are determined, in the first
instance, by the terms of agreements among private individuals.
 We conclude that the restrictive covenants standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the
14th Amendment
o But here there was more
o These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the
restrictive terms of the agreements
 That the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning
of the 14th Amendment, is a proposition which has long been established by decisions of this Court.
o The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish
homes
 The owners of the properties were willing sellers; and contracts of sale were accordingly consummated.
 These are cases in which the States have made available to such individuals the full coercive power of government to deny to
petitioners, on the grounds of race or color, the enjoyment of property rights to premises which petitioners are willing an financially
able to acquire and which the grantors are willing to sell.
 The enforcement of the restrictive agreements by the state courts in these cases was directed pursuant to the common-law policy of the
States as formulated by those courts in earlier decisions
o State action, as that phrase is understood for the purposes of the 14 th Amendment, refers to exertions of state power in all
forms.
 The rights created by the first section of the 14 th Amendment are, by its terms, guaranteed to the individual
o It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white persons rights of
ownership and occupancy on grounds of race or color.
Holding
 We hold in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal
protection of the laws and that, therefore, the action of the state courts cannot stand

STATE ACTION AFTER SHELLY V. KRAEMER

1. The Scope of Shelley

 In Evans v. Abney (1970), the court held that Shelley had not barred all state involvement in enforcing racial restrictions on private
property
o Senator Bacon’s will had conveyed property in trust to Macon, GA, for use as a park “for white people only.”
 The state court ruled, subsequent to SCOTUS’s ruling in Evans v. Newton, that “Senator Bacon’s intention to
provide a park for whites only had become impossible to fulfill and that accordingly the trust had failed and the
parkland and other trust property had reverted by operation of GA law to the heirs of the Senator.”
o Justice Black held that this ruling did not constitute state discrimination under the 14 th Amendment:
 This case is easily distinguishable from Shelley
 Here the effect of the GA decision eliminated all discrimination against Negroes in the park by eliminating
the park itself, and the termination of the park was a loss shared equally by the white and negro citizens of
Macon.
 In PA v. Board of Directors of Trusts (1957), the Court had found state action in the denial of admission of nonwhite students to
Girard College, established by Stephen Girard’s 1831 will setting up a trust for a school solely for “poor white male orphans.”
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o The court found that “the Board which operates Girard College is an agency of the State” and its refusal to admit
petitioners is “discrimination by the State.”
3. Significant State Involvement in Racially Discriminatory Action
 In Burton v. Wilmington Parking Authority (1961), the Court reversed a DE decision upholding the exclusion of an African-
American customer from a private restaurant located in a public parking building under a provision of state law
o Justice Clark wrote:
 The parking building is owned and operated by the Wilmington Parking Authority, an agency of the State of DE, and
the restaurant is the Authority’s lessee.
 We conclude that the exclusion of appellant was discriminatory state action
 The land and building were publically owned
 As an entity, the building was dedicated to “public uses” in performance of the Authority’s “essential
governmental functions.”
 The benefits mutually conferred, together with the obvious fact that the restaurant is operated as an integral part of
a public building devoted to a public parking service, indicates that degree of state participation and involvement in
discriminatory action which it was the design of the 14 th Amendment to condemn.
 When a state leases public property in the manner and for the purpose shown to have been the case here,
the proscriptions of the 14th Amendment must be complied with by the lessee
o Justice Stewart concurred separately, observing that although the state allowed restaurants to exclude patrons whose presence
would be “offensive” to most other customers, the state court did not inquire whether the plaintiff would actually have been
offensive, but simply assumed that he was due to his race
 The state court has thus construed this legislative enactment as authorizing discriminatory classification based
exclusively on color.
4. State Involvement through Licensing
 In Moose Lodge No. 107 v. Irvis (1972), the Court rejected a claim that a private club’s racial discrimination was unconstitutional
because the club held a state liquor license.
o Justice Rehnquist wrote:
 Shelly did not mean that discrimination by an otherwise private entity would be violative of equal protection if the
private entity receives any sort of benefit or service at all from the state, or if it is subject to state regulation in any
degree whatever.
 To find unconstitutional state action in situations where the impetus for the discrimination is private, the State must
have significantly involved itself with invidious discrimination
 There is nothing here approaching the symbiotic relationship between lessor and lessee from Burton.
o Justice Douglas’s dissent explained that, while he would not apply constitutional restrictions to private clubs simply because
they had a state license of some kind, there were “special circumstances” warranting a state action finding here because a
fraternal organization desiring to form a nondiscriminatory club would have to “purchase a license held by an existing club,
which can exact a monopoly price for the transfer.”
5. State “Encouragement” of private discrimination
 In Reitman v. Mulkey (1967), the Court found state action in state’s repeal of fair housing laws barring racial discrimination in the
sale or rental of private dwellings
o In 1964, CA voters, adopted Proposition 14, amending the state constitution to prohibit the state from denying “the right of
any person to decline to sell, lease, or rent real property to such persons or person that he, in his absolute discretion,
chooses.”
o The Mulkeys sued in a state court claiming that Proposition 14, which in effect repealed the antidiscrimination laws, violated
equal protection, and they prevailed in the CA Supreme Court.
o Justice White’s majority acknowledged that mere repeal of an antidiscrimination law did not establish unconstitutional state
action, but:
 The intent of Proposition 14 was to authorize private racial discrimination in the housing market, to repeal the fair
housing laws, and to create a constitutional right to discriminate on racial grounds
 The right to discriminate was now embodied in the State’s basic charter, immune from legislative,
executive, or judicial regulation at any level of the state government
o Justice Harlan’s dissent insistent:
 All that has happened is that CA has effected a pro tanto repeal of its prior statutes forbidding private
discrimination
 This runs no more afoul of the 14th Amendment than would have CA’s failure to pass any such
antidiscrimination statutes in the first instance.
 Under this theory “state action” in the form of laws that do nothing more than passively permit private
discrimination could be said to tinge all private discrimination with the taint of unconstitutional state
encouragement.

Jackson v. Metropolitan Edison Co. – SCOTUS – 1974 (Justice Rehnquist) (PG 868)

PH and Outcome/Facts
 Petitioner sought damages and injunctive relief against a private company regulated by the PA Public Utilities Commission (PUC) for
terminating electric service for alleged nonpayment without notice, hearing, and an opportunity to pay any amounts found due.
 Petitioner brought suit claiming that the termination violated her right to due process
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 The lower courts dismissed her complaint.
 SCOTUS affirms.
Issue
 Was petitioner’s termination a violation of her equal protection rights?
Reasoning
 The inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so
that the action of the latter may be fairly treated as that of the State itself.
 Petitioner first argues that “state action” is present because of the monopoly status allegedly conferred upon Metropolitan
o There is factual doubt that the State ever granted Metropolitan a monopoly.
 Such public utility companies are natural monopolies created by the economic forces of high threshold capital
requirements and virtually unlimited economy of scale
o But assuming that it had, this fact is not determinative in considering whether Metropolitan’s termination of service to
petitioner was “state action.”
 We also reject the notion that Metropolitan’s termination is state action because the state “has specifically authorized and approved”
the termination practice.
o The nature of governmental regulation of private utilities is such that a utility may frequently be required by the state
regulatory scheme to obtain approval for practices a business regulated in less detail would be free to institute without any
approval from a regulatory body.
o Approval by a state utility commission of such a request from a regulated utility does not transmute a practice initiated by the
utility and approved by the Commission into “state action.”
 We also find absent in the instant case the symbiotic relationship presented in Burton.
Holding
 There was no state action so as to make the utility’s conduct attributable
Dissent (Justice Marshall)
 Our state action cases have repeatedly relied on several factors clearly presented by this case: a state-sanctioned monopoly; an
extensive pattern of cooperation between he “private” entity and the state; and a service uniquely public in nature.
o Even when the Court has not found state action based solely on the State’s conferral of a monopoly, it has suggested that the
monopoly factor weighs heavily in determining whether constitutional obligations can be imposed on formally private
entities
o The difficulty inherent in economic analysis counsels against excusing natural monopolies from the reach of state action
principles
 From the civil Rights Cases to Moose Lodge, we have consistently indicated that state authorization and approval of “private” conduct
would support a finding of state action.
o Where the State has so thoroughly insinuated itself into the operation of the enterprise, it should not be fatal if the State has
not affirmatively sanctioned the particular practice in question.
 What is perhaps most troubling about the Court’s opinion is that it would appear to apply to a broad range of claimed constitutional
violations by the company.
o Thus, the majority’s analysis would seemingly apply as well to a company that refused to extend service to Negroes, welfare
recipients, or any other group that the company preferred, for its own reasons, not to serve.

THE STATE ACTION DOCTRINE AFTER JACKSON AND MOOSE LODGE

1. The Insufficiency of State Acquiescence

 In Flagg Bros. Inc. v. Brooks (1978), the Court held that a warehouseman’s sale of bailed goods to satisfy a warehouseman’s lien
under the UCC was not state action.
o Justice Rehnquist explained:
 This Court has never held that a State’s mere acquiescence in a private action converts that action into that of the
State.
 It is quite immaterial that the State has embodied its decision not to act in statutory form
 If the mere denial of judicial relief is considered sufficient encouragement to make the State responsible
for those private acts, all private deprivations of property would be converted into public acts whenever
the State, for whatever reason, denies relief sought by the putative property owner.
o Justice Stevens’s dissent criticized the “permission”-“compulsion” distinction:
 Under this approach a State could enact laws authorizing private citizens to use self-help in countless situations
without any possibility of federal challenge.
 An attempt to challenge the validity of any such outrageous statute would be defeated by the reasoning the Court
uses today:
 The Court’s rationale would characterize action pursuant to such a statute as purely private action, which
the State permits but does not compel.
2. The Insufficiency of State Regulation or Subsidies
 In Blum v. Yaretsky (1982), the Court held that certain privately owned nursing homes receiving reimbursements form the state for
caring for Medicaid patients were not state actors for purposes of a claim by a class of Medicaid patients that their procedural due
process rights had been violated when they were transferred from “skilled nursing facilities” to less expensive “health related
facilities.”
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o Justice Rehnquist held that the decisions turned “on medical judgments made by private parties according to professional
standards that are not established by the State.”
o Citing Jackson, he stated:
 Constitutional standards are only invoked when it can be said that the State is responsible for the specific conduct of
which the plaintiff complains.
 Here, by contrast, the complaining party seeks to hold the State liable for the actions of private parties.
o Nor was the Burton standard satisfied here:
 Privately owned enterprises providing that the State would not necessarily provide, even though they are extensively
regulated, do not fall within the ambit of Burton
 In Rendell-Baker v. Kohn (1982), the majority held that “a private school, whose income is derived primarily form public sources
and which is regulated by public authorities,” could not be considered as engaging in state action when it discharged certain
employees.
3. The Insufficiency of State Inaction
 In DeShaney v. Winnebago County Social Services Department (1989), the court found that a State’s failure to act to protect a boy
from a violent father did not trigger 14 th Amendment protections
o Petitioner Joshua DeShaney was a boy who was beaten and permanently injured by his father, with whom he lived.
o When he was 1 year old, a WY court granted his parents a divorce and awarded custody to his father
 Two years later, county social workers received recurrent reports that the father was physically abusing Joshua
 When Joshua was 4, his father beat him so severely that he suffered permanent brain injuries that left him
profoundly retarded and confined to an institution for life.
 This action was brought claiming that the State had deprived him of his liberty in violation of due process
o Justice Rehnquist rejected that claim:
 Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property
of its citizens against invasion by private actors.
 Its purpose was to protect the people from the State, not to ensure that the State protect them from each
other.
 It is true that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and
protection with respect to particular individuals
 The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or
from its expression of intent to help him, but from the limitation which it has imposed on his freedom to act
on his own behalf.
o Justice Brennan, joined by Marshall and Blackmun, dissented:
 I would focus first on the action that WI has taken with respect to Joshua and children like him, rather than on the
actions that the State failed to take
 Inaction can be every bit as abusive of power as action, and oppression can result when a State undertakes
a vital duty and then ignores it.
o Justice Blackmun’s separate dissent insisted that the facts here involved “not mere passivity, but active state intervention in
the life of Joshua – intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to
which he was exposed.
4. Decisions finding State Action to be Present
 In Lugar v. Edmondson Oil Co. (1982), the court found the state action requirement satisfied when a creditor, pursuant to a state
law, attached the debtor’s property in an ex parte proceeding, alleging that the debtor might dispose of the property to defeat creditors.
o Justice White’s majority stated:
 The central question is whether, under the facts of this case, the creditors, who are private parties, may be
appropriately characterized as “state actors.”
 The lower court erred in holding that in this context “joint participation” required something more than invoking
the aid of state officials to take advantage of state-created attachment procedures.
o In finding Flagg Bros. distinguishable, Justice White relied in part on the fact that the creditor’s remedy involved in Flagg
Bros. could be exercised without the intervention of a state official, and simply pursuant to state procedures.
o Chief Justice Burger dissented, insisting that the creditor “did no more than invoke a presumptively valid state prejudgment
attachment procedure available to all.
 The court in Edmonson v. Leesville Concrete Co (1991), held that use by a private litigant in a civil proceeding of peremptory
challenges to exclude jurors on the basis of race constituted state action for 14 th Amendment equal protection purposes
o Justice Kennedy found that peremptory challenges in civil litigation were the creatures of “statutory authorization” and that
very idea of a peremptory challenge has “no significance outside a court of law.”
o He concluded:
 The peremptory challenge is used in selecting an entity that is a quintessential governmental body, having no
attributes of a private actor
 Finally, we note that the injury caused by the discrimination is made more severe because the government permits it
to occur within the courthouse itself
o Justice O’Connor, Joined by Chief Justice Rehnquist and Scalia, dissented, maintaining that, in view of Jackson and Blum, it
was necessary to show that the government was involved in the specific decision challenged, a showing not made here.
 In Brentwood Academy v. TN Secondary School Athletic Ass’n (2001), the Court held a statewide interscholastic athletics
association comprised of public and private schools to be a state actor because of “public entwinement” in its management and
control, notwithstanding the Association’s nominally private status under state law.
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o 84% of the Association’s member schools were private
o Justice Souter wrote:
 The nominally private character of the Association is overborne by the pervasive entwinement of public institutions
and public officials in its composition and workings.
o In dissent, Justice Thomas, chief Justice Rehnquist, Scalia and Kennedy objected that the Court had never before “found state
action based on mere ‘entwinement.’”

Section 4. Congressional Power to Enforce Civil Rights Under §5 of the 14th Amendment (PG 887)

 Historically, most of the laws enacted by Congress under its power to “enforce” the 14 th and 15th Amendments were quite narrowly
“remedial.”
o The Guest case suggested a potentially broader congressional power: the authority to extend the reach of the 14 th Amendment
to cover some private behavior.
 Congress attempted to justify several civil rights laws, most prominently during the civil rights era of the 1960s, in the basis of
“prophylactic” authority under §5
o Under that theory, Congress need not wait to find specific violations of civil rights, as the remedial theory would require;
instead, it may pass proactive, broad, and sometimes creatively structured laws that prevent potential civil rights violations in
the future.

City of Boerne v. Flores – SCOTUS – 1997 (Justice Kennedy) (PG 901)

Facts
 A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration
Act of 1993 (RFRA)
 The acts stated purposes are:
o 1. To restore the compelling interest test as set forth in Sherbert and to guarantee its application in all cases where free
exercise of religion is substantially burdened; and
o 2. To provide a claim or defense to persons whose religious exercise is substantially burdened by government.
 RFRA prohibits “government” from “substantially burdening” a person’s exercise of religion even if the burden results from a rule of
general applicability unless the government can demonstrate the burden
o 1. Is in furtherance of a compelling governmental interest; and
o 2. Is the least restrictive means of furthering that compelling governmental interest.”
 The Act’s mandate applies to any “branch, department, agency, instrumentality, and official of the US,” as well as to any “State, or
subdivision of a State.”
Issue
 Is RFRA a proper exercise of Congress’s §5 powers?
Reasoning
 Congress enacted RFRA in direct response to the Court’s decision in Oregon v. Smith
o Smith held that neutral, generally applicable laws may be applied to religious practices even when not supported by a
compelling governmental interest
o Many members of Congress criticized the court’s reasoning, and this disagreement resulted in the passage of RFRA.
 All must acknowledge that §5 is “a positive grant of legislative power” to Congress. Katzenbach v. Morgan.
o Congress’ power under §5 however, extends only to “enforcing” the provisions of the 14 th Amendment
o The design of the Amendment and the text of §5 are inconsistent with the suggestion that Congress has the power to decree
the substance of the 14th Amendment’s restrictions on the States.
 Congress has been given the power “to enforce,” not the power to determine what constitutes a constitutional
violation
 There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end
o History and out case law support drawing the distinction, one apparent from the text of the Amendment.
 The 14th Amendment’s history confirms the remedial, rather than substantive, nature of the Enforcement Clause
o In February 1866, Representative John Bingham reported the following draft amendment:
 The Congress shall have the power to make all laws which shall be necessary and proper to secure to the citizens of
each State all privileges and immunities of citizens in the several states, and to all persons in the several states equal
protection in the rights of life, liberty, and property.
o The proposal encountered immediate opposition which had a common theme: The proposed Amendment gave Congress too
much legislative power at the expense of the existing constitutional structure.
 Instead, the Joint Committee began drafting a new article of Amendment
 Under the revision, Congress’ power was no longer plenary but remedial
o The significance of the defeat of the Bingham proposal was apparent even then
 As enacted, the 14th Amendment confers substantial rights against the States which, like the provisions of the Bill of
Rights, are self-executing
 The power to interpret the Constitution in a case or controversy remains in the judiciary.
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 In the Civil Rights Cases, the Court said that the Enforcement Clause did not authorize Congress to pass “general legislation upon
the rights of the citizen, but corrective legislation; that is, such as may be necessary and proper for counteracting such laws as the
States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing.
 In South Carolina v. Katzenbach we upheld various provisions of the Voting Rights Act of 1965, finding them to be “remedies aimed
at areas where voting discrimination has been most flagrant,” and necessary to “banish the blight of racial discrimination in voting.”
 Any suggestion that Congress has a substantive, non-remedial power under the 14th Amendment is not supported by our case law
o In Oregon v. Mitchell, a majority of the court concluded Congress had exceeded its enforcement powers by enacting
legislation powering the minimum age of voters from 21 to 18 in state and local elections
 The five Court members were explicit in rejecting the position that §5 endowed Congress with the power to
establish the meaning of constitutional provisions.
 There is language in our opinion in Morgan which could be interpreted as acknowledging a power in Congress to enact legislation that
expands the rights contained in §1 of the 14th Amendment
o This is not a necessary interpretation, however, or even the best one.
o The Court provided two related rationales for its conclusion that §4(e) the Voting Rights Act of 1965 could “be viewed as a
measure for the Puerto Rican community residing in NY nondiscriminatory treatment by government.
 First, Congress could prohibit NY form denying the right to vote to large segments of its Puerto Rican community,
in order to give Puerto Ricans “enhanced political power” that would be “helpful in gaining nondiscriminatory
treatment in public service for the entire Puerto Rican community.”
 Second, the Court perceived a factual basis on which Congress could have concluded that NY’s literary requirement
“constituted an invidious discrimination in violation of the Equal Protection Clause.”
o If congress could define its own powers by altering the 14 th Amendment’s meaning, no longer would the Constitution be
“superior paramount law, unchangeable by ordinary means.”
 Respondents content that RFRA is a proper exercise of Congress’ remedial or preventive power because it prevents and remedies laws
which are enacted with the unconstitutional object of targeting religious beliefs and practices.
 The appropriateness of remedial measures must be considered in light of the evil presented
o RFRA’s legislative record lacks examples of modern instances of generally applicable laws passed because of religious
bigotry
 RFRA’s most serious shortcoming is that regardless of the state of the legislative record, RFRA cannot be considered remedial,
preventive legislation, if those terms are to have any meaning.
o It appears, instead, to attempt a substantive change in constitutional protections.
 The reach and scope of RFRA distinguish it from other measures passed under Congress’ enforcement power, even in the area of
voting rights
o This is not to say, of course, that §5 legislation requires termination dates, geographic restrictions or egregious predicates
o Where, however, a congressional enactment pervasively prohibits constitutional state action in an effort to remedy or to
prevent unconstitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind
tend to ensure Congress’ means are proportionate to ends legitimate under §5.
 The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence
o If an objector can show a substantial burden on his free exercise, the State must demonstrate a compelling governmental
interest and show that the law is the least restrictive means of furthering its interest.
 This is a considerable intrusion into the State’s traditional prerogatives and general authority to regulate for the
health and welfare of their citizens.
o Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their
treatment of religion.
 In addition, the Act imposes in every case a least restrictive means requirement which also indicates that the
legislation is broader than is appropriate if the goal is to prevent and remedy constitutional violations.
 RFRA was designed to control cases and controversies, such as the one before us; but as the provisions of the federal statute here
invoked are beyond congressional authority, it is this Court’s president, not RFRA, which must control.
Holding
 Broad as the power of Congress is under the Enforcement Clause of the 14 th Amendment, RFRA contradicts vital principles necessary
to maintain separation of powers and the federal balance

THE MEANING AND SCOPE OF BOERNE

1. Boerne and Marbury

 Note that Boerne invalidated RFRA only insofar as it applied to the states; RFRA’s strict scrutiny of the denial of religious
exemptions from general laws has continued to be applied to the federal government.
2. Boerne and Morgan
 The Boerne decision did not overrule Morgan, but clarified that it was justifiable only as an exercise of Congress’s remedial power.
 Note that by requiring Congress to follow the court’s own prior substantive definitions of rights, Boerne may have inverted the roles
of each branch anticipated by the Framers of the 14 th Amendment.
3. Congruent and Proportional
 The phrase “congruent and proportional” suggests that remedies must be both related to (congruent with) and not too over-or under-
inclusive in relation to (proportional to) the underlying violations.

Shelby County v. Holder – SCOTUS – 2013 (Chief Justice Roberts) (PG 908)
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Facts
 Section 5 of The voting rights act of 1965 required State to obtain federal permission before enacting any law related to voting – a
drastic departure from basic principles of federalism
 Section 4 of the Act applied that requirement only to some States – an equally dramatic departure from the principle that all States
enjoy equal sovereignty
o Nearly 50 years later, they are still in effect; indeed , they have been made more stringent, and are now scheduled to last until
2031
 At the time of the Act’s passage, these “covered” jurisdictions were those states or political subdivisions that had maintained a test or
device as a prerequisite to voting as of November 1, 1964, and had less than 50% voter registration or turnout in the 1964 Presidential
election
o A covered jurisdiction could “bail out” of coverage if it had not used a test or device in the preceding 5 years “for the purpose
or with the effect of denying or abridging the right to vote on account of race or color.”
 In 1965, the covered Stated included AL, GA, LA, MS, SC, VA
o The additional covered subdivisions included 39 counties in NC and one in AZ.
 In those jurisdictions, §4 of the Act banned al such tests of devices
o Section 5 provided that no change in voting procedures could take effect until it was approved by federal authorities in
Washington DC – either the AG or a court of three judges.
o A jurisdiction could obtain such “preclearance” only by proving that the change had neither “the purpose nor the effect of
denying or abridging the right to vote on account of race or color”
Issue
 Does the Act’s measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.
Reasoning
 The first century of congressional enforcement of the15 th Amendment, however, can only be regarded as a failure.
o Litigation remained slow and expensive, and voter registration of African-Americans barely improved.
 The Framers of the Constitution intended the States to keep for themselves, as provided in the 10 th Amendment, the power to regulate
elections.”
o There is also a “fundamental principle of equal sovereignty” among the States
 The Voting Rights Act sharply departs form these basic principles
o And despite the tradition of equal sovereignty, the preclearance requirement applies to only 9 States and several additional
counties.
o In 1966, we found these departures from the basic features of our system of government justified
 Nearly 50 years later, things have changed dramatically
 In the covered jurisdictions, “voter turnout and registration rates now approach parity.”
 There is no doubt that these improvements are in large part because of the Voting Rights Act.
o Yet the Act has not eased the restrictions in §5 or narrowed the scope of the coverage formula in ¢4(b) along the way.
 Respondents argue that much of this can be attributed to the deterrent effect of §5
o The 15th Amendment is not designed to punish the past; its purpose is to ensure a better future
o Congress must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.
 It cannot rely simply on the past.
 Congress reenacted a formula based on 40-year-old facts having no logical relation to the present day
o If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula.
Holding
 Congress’ failure to update the coverage formula leaves us today with no choice but to declare §4(b) unconstitutional.
 Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.
Concurrence (Justice Thomas)
 I would find §5 of the Voting Rights Act unconstitutional as well
 Congress has failed to justify “current burdens” with a record demonstrating “current needs.”
Dissent (Justice Ginsburg, Breyer, Sotomayor and Kagan
 In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy
 Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of
discrimination was not yet extirpated
o The question this case presents is who decides whether, as currently operative, §5 remains justifiable, this Court, or a
Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.”
 Although the VRA wrought dramatic changes in the realization of minority voting rights, the Act, to date, surely has not eliminated all
vestiges of discrimination against the exercise of the franchise by minority citizens
o Congress found that as “registration and voting of minority citizens increased, other measures may be resorted to which
would dilute increasing minority voting strength.”
 Second generation barriers come in various forms
o One of the blockages is racial gerrymandering, the redrawing of legislative districts in an “effort to segregate the races for
purposes of voting.”
o Another is adoption of a system of at-large voting in lieu of district-by-district voting in a city with a sizable black minority
 In the long course of the legislative reauthorization process, Congress “amassed a sizable record.”
o Congress made the following findings:
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 The VRA has directly caused significant progress in eliminating first-generation barriers to ballot access.

Section 6. State Sovereign Immunity and the 11th Amendment (PG 187)

 The 11th Amendment was adopted because of the uproar created by Chisholm v. Georgia (1793), where the Court took original
jurisdiction of a suit against GA by a SC creditor seeking payment for goods purchased by GA during the Revolution
 In Ex parte Young (1908) the Court held that a federal court could issue an injunction against state officials who sought to enforce an
unconstitutional state law, on the ground that the defendant was not really the state but rather the official, acting beyond his
constitutional authority.
 In Fitzpatrick v. Bitzer (1976), the Court held that Congress could abrogate the state’s 11th Amendment immunity and allow states to
be sued directly for retrospective damages pursuant to its enforcement power under Section 5 of the 14 th Amendment
o Fitzpatrick, however, left open the question whether Congress could also abrogate state sovereign immunity when it
exercised its Article I, §8, powers, such as the commerce power, as opposed to its 14 th Amendment enforcement powers
1. The Revival of State Sovereign Immunity in Seminole Tribe
 Seven years later, in Seminole Tribe of Florida v. Florida (1996), the Court overruled Pennsylvania v. Union Gas and held that
Congress, when acting under its Article I, §8, commerce power, may not abrogate a state’s sovereign immunity without the state’s
consent
o The Indian Gaming Act passed under the Indian Commerce Clause, imposed upon the states a duty to negotiate in good faith
with an Indian Tribe toward the formation of a compact, and authorized a tribe to sue the state in a federal court in order to
compel performance of that duty.
o Chief Justice Roberts held that:
 Notwithstanding Congress’ clear attempt to abrogate the States’ sovereign immunity, the Indian Commerce Clause
does not grant Congress that power and therefore the law cannot grant jurisdiction over a state that does not
consent to be sued.
 We have often made it clear that the relief sought by a plaintiff suing a State is irrelevant to the question whether the
suit is barred by the 11th Amendment
 Fitzpatrick v. Bitzer is distinguishable
 The 14th Amendment, adopted well after the adoption of the 11th Amendment and the ratification of the
Constitution, operated to alter the preexisting balance between state and federal power achieved by Article
III and the 11th Amendment
 The 11th Amendment restricts the judicial power under Article III, and Article I cannot be used to
circumvent the constitutional limitations placed upon federal jurisdiction.
o Justice Stevens dissented:
 The majority opinion prevents Congress from providing a federal forum for a broad range of actions against States,
from those sounding in copyright and patent law to those concerning bankruptcy, environmental law, and regulation
of our vast national economy,”
o In a separate dissent, Justice Souter, Ginsburg and Breyer, argued that judicial intervention to protect the states was
unwarranted because the requirement that Congress make a plain statement of its intent to abrogate state sovereign immunity
“is an adequate check on congressional overreaching.”

THE VOTING RIGHTS ACT AFTER SHELBY COUNTY (PG 913)

3. State sovereign immunity decisions and §5 of the 14 th Amendment

 In a series of cases since Boerne, the Court has held states immune from suits directed against them under various federal statutes on
the ground that Congress lacked power to abrogate state sovereign immunity under its commerce power or other Article I authority,
and that congress also lacked power to impose such liability under its 14 th Amendment, §5 authority unless it could demonstrate that
application of the statute to the states served to remedy state constitutional violations under the standards set forth in Boerne.

US v. Morrison – SCOTUS – 2000 (Chief Justice Rehnquist) (PG 915)

PH and Outcome/Facts
 This case arose from rape charges brought by Christy Brzonkala, a student at VA Polytechnic Institute, against two football players
also enrolled at he university
 She filed a complaint under the VT disciplinary system, but one of the accused was not punished and the other’s punishment was
eventually suspended.
o She dropped out of school and sued both men and VT in federal district court for damages under the civil damages of VAWA
 Section 13981 of the Violence Against Women Act states that “all persons within the US shall have the right to be free from crimes of
violence motivated by gender.”
o To enforce that right, the law declares: “A person (including a person who acts under color of statute, ordinance, regulation,
custom, or usage of any State) who commits a crime of violence motivated by gender and thus deprives another of the right
to be free of such crimes shall be liable to the party injured, in an action for the recovery of compensatory and punitive
damages, injunctive and declaratory relief, and such other relief as a Court may deem appropriate
Issue
 Is Section 13981 of VAWA an appropriate use of Congress’ prophylactic legislative power under §5 of the 14 th Amendment?
Reasoning
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 Petitioners’ §5 argument is founded on an assertion that there is pervasive bias in various state justice systems against victims of
gender-motivated violence.
o This assertion is supported by a voluminous congressional record
o Petitioners contend that this bias denies victims of gender-motivated violence the equal protection under the laws and that
Congress therefore acted appropriately in enacting a private civil remedy against the perpetrators of gender-motivated
violence of both remedy the States’ bias and deter future instances of discrimination in the state courts.
 The language and purpose of the 14th Amendment place certain limitations on the manner in which Congress may attack
discriminatory conduct
o Foremost among these is that the 14th Amendment, by its very terms, prohibits only state action.
 In US v. Harris (1883), the Court considered a challenge to §2 of the Civil Rights Act which sought to punish “private persons” for
“conspiring to deprive any one of the equal protection of the laws enacted by the State.”
o We concluded that this law exceed Congress’ §5 power because the law was “directly exclusively against the action of
private persons, without reference to the laws of the State, or their administration by her officers.”
 We reached a similar conclusion in the Civil Rights Cases.
 Petitioners argue that here there has been gender-based disparate treatment by state authorities.
o Even if that distinction were valid, we do not believe it would save §13981’s civil remedy
o Prophylactic legislation under §5 must have a “congruence and proportionality between the injury to be prevented or
remedied and the means adopted to that end.”
 Section 13981 is directed not at any State or State actor, but at individuals who have committed criminal acts
motivated by gender bias
 Section 13981 visits no consequence whatever on any VA public official involved in investigating or prosecuting Brzonkala’s assault
o Congress’ findings indicate that the problem of discrimination against the victims of gender-motivated crimes does not exist
in all States, or even most States
Holding
 We conclude that Congress’ power under §5 does not extend to the enactment of §13981
Dissent (Justice Breyer, Stevens)
 Petitioners claim that Congress used §5 to remedy the actions of state actors, failed to provide adequate (or any) state remedies for
women injured by gender-motivated violence – a failure that the States, and Congress, documented in depth
 The statutory remedy does not in any sense purport to “determine what constitutes a constitutional violation.”
o It intrudes little upon either States or private parties.
 Why is the remedy “disproportionate”?
 And given the relation between remedy and violation, where is the lack of “congruence”?
 Congress had before it the task force reports of at least 21 States documenting constitutional violations
o The record nowhere reveals a congressional finding that the problem “does not exist” elsewhere
o This Court has not previously held that Congress must document the existence of a problem in every State prior to proposing
a national solution.

THE MEANING AND SCOPE OF MORRISON

2. Section 5 Authority for Antidiscrimination Statutes Outside the Area of Race

 Even if Boerne reaffirmed the Voting Rights Act cases, implicitly grandfathering them and shielding them from the new heightened
scrutiny, did it portend new limits on Congress’s power to include the state governments within the reach of other antidiscrimination
statutes?
a. Age Discrimination
 In Kimel v. Florida Board of Regents (2000), the Court ruled that Congress had exceeded its 14th Amendment remedial authority in
allowing state employees to sue the states for violations of the Age Discrimination in Employment Act (ADEA)
o Because the ADA failed the “congruence and proportionality test,” the majority held, Congress’s attempt to abrogate the
states’ sovereign immunity was unconstitutional.
o Justice O’Connor noted that the antidiscrimination protections of the ADEA for state employees far exceeded the
requirements of equal protection:
 The substantive requirements the ADEA imposes on state and local governments are disproportionate to any
unconstitutional conduct that conceivably could be targeted by the Act
 Our Constitution permits States to draw lines on the basis of age when they have a rational basis for doing so at a
class-based level, even if it ‘is probably not true’ that those reasons are valid in the majority of cases
 The ADEA, through its broad restrictions on the use of age as a discriminating factor, prohibits
substantially more state employment decisions and practices than would likely be held unconstitutional
under the applicable equal protection standard.
o Congress effectively elevated the standard for analyzing age discrimination to heightened scrutiny
 Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating
against their employees on the basis of age
 The ADEA’s purported abrogation of the States’ sovereign immunity is accordingly invalid
o Justice Thomas, joined by Kennedy, concurred, but deemed the Constitutional question unnecessary to reach because the
ADEA did not evince an unmistakable intention to abrogate the states’ sovereign immunity
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o Justice Stevens, joined by Souter, Ginsburg and Breyer, did not reach the 14 th Amendment issue, since, consistent with the
dissenters’ views in prior cases, he deemed the ADEA’s abrogation of sovereign immunity justified under the commerce
Power
b. Disability Discrimination
 In Board of Trustees of the University of Alabama v. Gerrett (2001), the Court held invalid Congress’s attempt to abrogate
sovereign immunity for state-employer violations of Title I of the ADA
o Title I prohibits covered employers from “discriminating against a qualified individual” on account of the disability, requires
covered employers to “make reasonable accommodations to the physical or mental limitations of otherwise qualified”
disabled workers except in cases of “undue hardship,” and makes available money damages for violations.
o Writing for the court, Chief Justice Rehnquist identified the substantive equal protection guarantee as requiring a mere
rational relationship between classifications based on disability and legitimate legislative ends
 Congress has failed to identify a history and pattern of unconstitutional employment discrimination by the States
against the disabled adequate to show that the states had engaged in irrational discrimination
o Rehnquist expressed doubt about the record, questioning the force of “unexamined, anecdotal accounts” submitted to a task
force but “not to Congress.”
 Even if it were to be determined that each incident showed unconstitutional action on the part of the state, this small
number of incidents taken together fall far short of even suggesting the pattern of unconstitutional discrimination on
which §5 legislation must be based.
 Whereas it would be entirely rational (and therefore constitutional) for a state employer to conserve scarce
financial resources by hiring employees who are able to use existing facilities, the ADA requires employers to and
usable by individuals with disabilities.’
 The accommodation duty far exceeds what is constitutionally required in that it makes unlawful a range of
alternative responses that would be reasonable but would fall short of imposing an “undue burden” upon
the employer
o Justice Kennedy’s concurrence, joined by O’Connor, called the ADA “a milestone on the path to a more decent, tolerant,
progressive society,” but nevertheless found inadequate evidence of constitutional violations to sustain it as an exercise of §5
power.
o Justice Breyer dissented, joined by Stevens, Souter and Ginsburg:
 In my view, Congess reasonably could have concluded that the protection before us constitutes an ‘appropriate’ way
to enforce the equal protection requirement
 And that is all the Constitution requires
 Congress compiled a vast legislative record documenting ‘massive, society-wide discrimination’ against persons
with disabilities.
 The powerful evidence of discriminatory treatment throughout society in general implicates state
governments as well, for state agencies form part of that larger society.
o Breyer also considered evidence of municipal government violations to be probative
o Criticizing the majority’s “decision to hold Congress to a strict judicially created evidentiary standard,” Justice Breyer also
argued that there was an ample record of discrimination by the states themselves:
 Unlike courts, Congress directly reflects public attitudes and beliefs, enabling Congress better to understand where,
and to what extent, refusals to accommodate a disability amount to behavior that is callous or unreasonable to the
point of lacking constitutional justification.
 Unlike judges, Members of Congress can directly obtain info from constituents who have first-hand experience with
discrimination and related issues
 The decision in Garrett left open the question whether the 14 th Amendment, §5 authorizes Congress to permit suits against the states
for money damages under Title II of the ADA, which provides: “No qualified individual with a disability shall, by reason of such
disability, be excluded from participation or denied the benefits of the services, programs or activities of a public entity, or be
subjected to discrimination by any such entity.”
 In Tennessee v. Lane (2004), Justice O’Connor changed her vote and the Court held that Title II was a permissible exercise of
Congress’s civil rights enforcement power, at least as applied to cases involving access to the courts
o The case involved a challenge by a paraplegic who objected to the lack of an elevator in a county courthouse
o Justice Stevens emphasized that Title II’s purpose extended beyond protection against simple unequal treatment to also
protecting against deprivations of certain fundamental interests:
 As we observed, classifications based on disability violate that constitutional command if they lack a rational
relationship to a legitimate governmental purpose
 Title II seeks to enforce a variety of other basic constitutional guarantees besides basic irrational disability
discrimination, including some that are protected by the Due Process Clause of the 14 th Amendment.
 While §5 authorizes Congress to enact reasonably prophylactic remedial legislation, the appropriateness of the
remedy depends on the gravity of the harm it seeks to prevent
 It enacted Title II against pervasive unequal treatment in the administration of state services and
programs, including systematic deprivations of fundamental rights.
 The historical experience that Title II reflects is also documented in this Court’s cases, which have
identified unconstitutional treatment of disabled persons by state agencies in a variety of settings.
 In the deliberations that led up to the enactment of the ADA, Congress identified important shortcomings in existing
laws that rendered them ‘inadequate to address the pervasive problems of discrimination that people with
disabilities are facing.’
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 The conclusion that Congress drew form this body of evidence is set forth in the text of the ADA itself:
‘Discrimination against individuals with disabilities persists in such critical areas as education,
transportation, communication, recreation, institutionalization, health services, voting, and access to
public services.
 This finding makes clear beyond peradventure that inadequate provision of public services and access to
public facilities was an appropriate subject for prophylactic legislation.
o Because we find that Title II unquestionably is valid §5 legislation as it applies to the class of
cases implicating the accessibility of judicial services, we need go no further.
 Congress’ chosen remedy for the pattern of exclusion and discrimination described above, is congruent and
proportional to its object of enforcing the right of access to the courts.
 Title II requires only ‘reasonable modifications’ that would not fundamentally alter the nature of the
service provided, and only when the individual seeking modification is otherwise eligible for the service.
 Title II’s affirmative obligation to accommodate persons with disabilities in the administration of justice cannot be
said to be ‘so out of proportion to a supposed remedial or preventive object that it cannot be understood as
responsive to, or designed to prevent, unconstitutional behavior.’
o Chief Justice Rehnquist, joined by Kennedy and Thomas, dissented:
 The majority identifies nothing in the legislative record that shows Congress was responding to widespread
violations of the due process rights of disabled persons
 We discounted much of the same type of outdated generalized evidence in Garrett as unsupportive of Title
I’s ban on employment discrimination
o The mere existence of an architecturally ‘inaccessible’ courthouse does not state a violation of
due process
o Nor does an ‘inaccessible’ courthouse violate the Equal Protection Clause, unless it is irrational
for the State not to alter the courthouse to make it ‘accessible.’
o Justice Scalia filed a separate dissent, expressing regret that he had earlier signed onto the “congruence and proportionality”
test, which he said, “like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven
decisionmaking
 He would limit Congress under §5 to remedying conduct that itself violates a provision of the 14 th Amendment, but
grandfather “prophylactic legislation” like the Voting Rights Act in the area of race discrimination.
 In US v. Georgia (2006), the Court considered whether a disabled inmate in a GA prison could sue the State under Title II of the
ADA
o In a unanimous opinion by Justice Scalia, the Court assumed that a paraplegic prisoner, in alleging that prison officials had
deliberately refused to accommodate his disability-related needs in such fundamentals as mobility, hygiene, and medical care,
had stated claims based on conduct that independently violated §1 of the 14 th Amendment, which incorporates the 8th
Amendment’s guarantee against cruel and unusual punishment
 Thus, insofar as Title II creates a private cause of action for damages against the States for conduct that actually
violates the 14th Amendment, Title II validly abrogates state sovereign immunity.
c. Family Leave and Gender Discrimination
 In Nevada Department of Human Resources v. Hibbs (2003), the Court distinguished Kimel and Garrett, upholding Congress’s
power to apply the family-care provision of the Family Medical Leave Act of 1993 (FMLA)
o One goal of the FMLA was to prevent gender discrimination by making it possible for parents of either gender to take a leave
of absence to care for a sick family member.
o Chief Justice Rehnquist reasoned that the FMLA was appropriately tailored to preventing gender discrimination in the
workplace:
 Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to
prevent and deter unconstitutional conduct.
 We now inquire whether Congress had evidence of a pattern of constitutional violations on the part of the
States in this area.
 The history of the many state laws limiting women’s employment opportunities is chronicled in – and, until
relatively recently, was sanctioned by – this Court’s own opinions
 According to the evidence that was before Congress when it enacted the FMLA, States continue to rely on invalid
gender stereotypes in the employment context
 Reliance on such stereotypes cannot justify the States’ gender discrimination in this area and justifies
Congress’ passage of prophylactic §5 legislation
 We reached the opposite conclusion in Garrett and Kimel for age- or disability-based discrimination.
 Under our equal protection case law, discrimination on these basis is not judged under a heightened
review standard, and passes muster if there is ‘a rational basis for doing so.’
 Here, however, Congress directed its attention to state gender discrimination, which triggers a heightened level of
scrutiny
 Because the standard for demonstrating the constitutionality of a gender-based classification is more
difficult to meet than our rational-basis test it was easier for Congress to show a pattern of state
constitutional violations
 Congress’ chosen remedy, the family-care leave provision of the FMLA, is ‘congruent and proportional to the
targeted violation.
 78
 Congress ‘is not confined to the enactment of legislation that merely parrots the precise wording of the
14th Amendment,’ but may prohibit ‘a somewhat broader swath of conduct, including that which is not itself
forbidden by the Amendment’s text.’
 Unlike the statutes at issue in City of Boerne, Kimel, and Garrett, the FMLA is narrowly targeted at the
fault line between work and family and affects only one aspect of the employment relationship
o Justice Scalia dissented:
 There is no guilt by association, enabling the sovereignty of one State to be abridged under §5 of the 14 th
Amendment because of violations by another State, or by most other states, or even by 49 other States.
o Justice Kennedy, joined by Scalia and Thomas, dissented arguing that the FMLA was not a congruent and proportional
remedy to any demonstrated gender discrimination by the states:
 The FMLA seeks to ensure that eligible employees irrespective of gender, can take a minimum amount of leave time
to care for an ill relative
 The relevant question is whether the States continued to engage in widespread discrimination on the basis
of gender in the provision of family leave benefits
 The evidence to substantiate this charge must be far more specific than a simple recitation of a general history of
employment discrimination against women.
 The case Coleman v. Court of Appeals of Maryland (2012), featured a challenge to the FMLA’s self-care provisions, which allowed
employees to take a leave of absence from work to treat their own illnesses.
o Writing for a plurality, Justice Kennedy, joined by Chief Justice Roberts, Thomas and Alito, explained that:
 Whether a congressional Act passed under §5 can impose monetary liability upon States requires an assessment of
both the ‘evil or wrong Congress intended to remedy,’ and the means Congress adopted to address that evil.
 There must be a congruence and proportionality between the injury to be prevented or remedied and the means
adopted to that end
 Under this analysis Hibbs permitted employees to recover damages form States for violations of the family-care
provision.
 Hibbs concluded that requiring state employers to give all employees the opportunity to take family-care
leave was ‘narrowly targeted at the faultline between work and family – precisely where sex-based
overgeneralization has been and remains strongest.
 What the family-care provisions have to support them, the self-care provisions lacks, namely evidence of a
pattern of state constitutional violations accompanied by a remedy drawn in narrow terms to address or
prevent alleged constitutional violations.
o Justice Thomas wrote a separate concurrence, noting that he fully endorsed the plurality’s opinion but that he believed that
Hibbs had been wrongly decided
o Justice Scalia concurred in judgment, admitting that the plurality’s application of the “congruence and proportionality” test
was correct but challenging the validity of the test itself:
 As I have explained in greater detail in Lane, outside of the context of racial discrimination, I would limit
Congress’s §5 power to the regulation of conduct that itself violates the 14 th Amendment.
o In dissent, Justice Ginsburg joined by Breyer, Sotomayor and Kagan, explained that:
 As congress found, the examples of gender discrimination in the Congressional record “were hardly isolated
incidents.
 Congress’ concern was solidly grounded in workplace realities and therefore provided a legitimate interest
to support the legislation.
 Congress deliberately avoided a legislative package that, overall, was or would be seen as geared to women only, a
policy choice that Congress believed necessary to promote its aims and to which the Court should thus defer.

SECTION 4 – FREEDOM OF SPEECH

Chapter 11 – Freedom of Speech – Categories of Speech – Degrees of Protected Expression

Section 2. Incitement to Violence or Subversion (PG 946)

 Title I, Section 3 of the 1917 Espionage Ace and its 1918 Amendments created three new offenses:
o 1. Whoever, hen the US is at war, shall willfully make or convey false reports or false statements with intent to interfere with
the operation or success of the military or naval forces of the US or to promote the success of its enemies; and
o 2. Whoever, when the US is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of
duty, in the military or naval forces of the US; or
o 3. Shall willfully obstruct the recruitment or enlisting service of the US, to the injury of the service or of the US;
 Shall be punished by a fine of not more than $10,000 or imprisonment for not more than 20 years, or both.

“CLEAR AND PRESENT DANGER” AFTER US V. DENNIS

5. The Modern incitement test and the Court’s repudiation of Whitney

 By the 1960s, the Court had become more protective of speech in connection with the civil rights movement, and the fear of domestic
communism had abated politically.
 79
Brandenburg v. Ohio – SCOTUS – 1969 (Per Curiam) (PG 979)

Facts
 The appellant, a leader of a KKK group, was convicted under the Ohio Criminal Syndicalism statute for “advocating the duty,
necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or
political reform” and for “voluntarily assembling with any society, group, or assemblage of persons formed to teach or advocate the
doctrines of criminal syndicalism.”
 The record shows that a man, the appellant, telephoned an announcer-reporter on the staff of the Cincinnati television station and
invited him to come to a KKK “rally” to be held at a farm
o The reporter and a cameraman attended the meeting and filed the events
o Portions of the film were later broadcast on the local station and on a national network
 One film showed 12 hooded figures, some of whom carried firearms
o They were gathered around a large wooden cross, which they burned
 Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered
phrases could be understood that were derogatory of Negroes and, in one instance, of Jews
o Another scene on the same film showed the appellant, in Klan regalia, making a speech
 The second film showed six hooded figures one of whom, later identified as the appellant, repeated a speech very similar to that
recorded on the first film.
o The reference to the possibility of “revengence” was omitted, and one sentence was added: “Personally, I believe the nigger
should be returned to Africa, the Jew returned to Israel.”
o Though some of the figures in the films carried weapons, the speaker did not.
Issue
 Does the OH criminal syndicalism statue run afoul of the 1st Amendment?
Reasoning
 In 1927, this Court sustained the constitutionality of CA’s Criminal Syndicalism Act, the text of which is quite similar to that of the
laws of OH (Whitney) on the ground that, without more, “advocating” violent means to effect political and economic change involves
such danger to the security of the State that the State may not outlaw it.
 Later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to
forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action
o A statute that fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and 14 th
Amendments
 Measured by this test, OH’s law cannot be sustained.
o Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime
in terms of mere advocacy not distinguished from incitement to imminent lawless action.
 Statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between
mere advocacy and incitement to imminent lawless action, for “the right of peaceable assembly is a right cognate to those of free
speech and free press and is equally fundamental.”
Holding
 The statute here purports to punish mere advocacy, and such a statute falls within the condemnation of the 1 st and 14th Amendments.
The contrary teaching of Whitney cannot be supported, and that decision is therefore overruled.
Concurrence (Justice Black)
 I agree with Justice Douglas that the “clear and present danger” doctrine should have no place in the interpretation of the 1 st
Amendment
Concurrence (Justice Douglas)
 Though I doubt if the “clear and present danger” test is congenial to the 1 st Amendment in time of a declared war, I am certain it is not
reconcilable with the 1st Amendment in days of peace.
o First, the threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical
analysis made them nervous
o Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political
trial which was part and parcel of the cold war that has eroded substantial parts of the 1 st Amendment.

THE MEANING AND IMPLICATIONS OF BRANDENBURG

2. Later applications of Brandenburg: antiwar protests, civil rights boycotts, anti-abortion websites
 The Brandenburg standard was the primary ground for reversal of a disorderly conduct conviction in Hess v. Indiana (1973).
o After a campus antiwar demonstration, over 100 demonstrators blocked the street until they were moved to the curb by the
police.
 Hess, standing off the street, said: “We’ll take to the fucking street later (or again).”
o The Court summarily reversed:
 At best, the statement could be taken as counsel for present moderation; at worst, it amounted to nothing more than
advocacy of illegal action at some indefinite future time.
 Since there was no evidence that his words were intended to produce, and likely to produce, imminent disorder,
those words could not be punished by the State.
 80
 In NAACP v. Claiborne Hardware Co. (1982), the Court set aside a large damages award against alleged participants in an
economic boycott of white merchants by civil rights activists in a Mississippi county.
o One of the defendants was Charles Evers, the Field Secretary of the NAACP, who took a leading role in the boycott
 One of the arguments was that “a finding that his public speeches were likely to incite lawless action could justify
holding him liable for unlawful conduct that in fact followed within a reasonable period.”
o Justice Stevens rejected the incitement rationale for imposing liability on Evers:
 This Court has made clear that mere advocacy of the use of force or violence does not remove speech from the
protection of the First Amendment
 The lengthy addresses generally contained an impassioned plea for black citizens to unify, to support and respect
each other, and to realize the political and economic power available to them
 In the course of those pleas, strong language was used.
 In this case, however, almost all acts of violence identified in 1966 occurred weeks or months after the April 1, 1966
speech; the chancellor made no finding of any violence after the challenged 1969 speech
 In Planned Parenthood v. American Coalition of Life Activists (9 th Circuit 2002), a sharply divided court of appeals upheld the
application of civil liability to such speech under the Freedom of Access to Clinics Entrances Act (FACE), which provides a right of
action against whoever by “threat of force intentionally intimidates any person because that person is or has been providing
reproductive health services.”
o The majority opinion stated that:
 While advocating violence is protected, threatening a person with violence is not.
 We disagree that Claiborne is closely analogous
 No specific individuals were targeted
 For all that appears, ‘the break your neck’ comments were hyperbolic vernacular.
o The dissenters objected that, while “the statements could reasonably be interpreted as an effort to intimidate plaintiffs into
causing their abortion-related activities, SCOTUS had told us that ‘speech does not lose its protected character simply
because it may embarrass others or coerce them into action.’”
3. The Scope of Brandenburg: Factual data and torts
 As the incitement cases illustrate, many instances of speech that make it easier for listeners or readers to commit crimes also have
valuable uses: a manual on contract assassination may also be useful to mystery writers and executives seeking to instruct security
details.
 In Rice v. Paladin Entertainers (4th Circuit 1997), a suit for civil liability for wrongful death was permitted to proceed against the
book Hit Man: A Technical Manual for Independent Contractors.
o The publisher stipulated that it know the book would be read by would-be murderers for hire
o The court of appeals reversed dismissal of the suit, stating that the publisher’s “astonishing stipulations, coupled with the
extraordinary comprehensiveness, detail, and clarity of Hit Man’s instructions for criminal activity and murder in particular,
and the book’s evident lack of any even arguably legitimate purpose beyond the promotion and teaching of murder, render
this case unique in the law.”
4. Brandenburg and new threats of terrorism
 Acts of domestic and international terrorism have inspired new political effort to curtail speech that might incite violence
 In 1999, after extensive study by the DOJ of possible free speech objections, Congress enacted a law making it an offense “to teach or
demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means
info pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction”
either knowing or intending “that the teaching, demonstration, or information be used for, or in furtherance of, an activity that
constitutes a Federal crime of violence
 In practice, speech in support of terrorism has been prosecuted under the so-called “material support” statute 18 USC §2329B
o The statute criminalizes the knowing provision of “material support or resources to an organization the entity knows to have
been designated as a foreign terrorist organization.”
o Material support is defined as “any property, tangible or intangible, or service, including currency or monetary instruments or
financial securities, financial services, lodging, training, expert advice or assistance.”
 In Holder v. Humanitarian Law Project (2010), several US citizens and organizations sought to facilitate the humanitarian and
political activities of two groups that had been designated by the Secretary of State as foreign terrorist organizations.
o HLP challenged application of the material support statute to that conduct, arguing that the prohibition was a violation of
their right to freedom of speech and association under the First Amendment
o The Court upheld the law as applied to HLP giving Congress and the executive deference in determining the types of
activities that could further a terrorist threat.

Section 3. Fighting Words and Hostile Audiences

 The typical claim is that a speaker’s provocative message so outrages the audience that some listeners are likely to resort to violence in
response
 The state seeks to stop the speaker in order to promote the interest in assuring order and avoiding violence.

FIGHTING WORDS

Chaplinsky v. New Hampshire – SCOTUS – 1942 (Justice Murphy) (PG 987)

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Facts
 Chaplinsky, a Jehovah’s Witness engaged in disturbing literature on the streets of Rochester NH, had allegedly attracted a “restless”
crowd by denouncing all religion as “racket.”
o When a disturbance broke out, a police officer escorted Chaplinsky away
 In the ensuing argument between Chaplinsky and the City Marshal, Chaplinsky called the Marshal a “God damned racketeer” and “a
damned Fascist,” adding that “the whole government of Rochester are Fascists or agents of Fascists.”
 Chaplinsky was subsequently convicted under a state law stating that no person “shall address any offensive, derisive or annoying
word to any other person who is lawfully in any street or other public pace, nor call him by any offensive or derisive name.”
Issue
 Does the NH statute run afoul of the 1st Amendment?
Reasoning
 It is well understood that the right of free speech is not absolute.
o There are certain well-defined and narrowly limited classes of speech including the lewd and obscene, the profane, the
libelous, and the insulting or “fighting” words – those which by their very utterance inflict injury OR tend to incite an
immediate breach of the peace.
o “Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no question under that instrument.”
 The state court declared that the statute’s purpose was to preserve the public peace, no words being “forbidden except such as have a
direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.”
o It was further said “The test is what men of common intelligence would understand would be words likely to cause an
average addressee to fight.”
 It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a
public place of words likely to cause a breach of the peace.
o Argument is unnecessary to demonstrate that the appellations “damn racketeer’ and ‘damn Fascist’ are epithets likely to
provoke the average person to retaliation and thereby cause a breach of the peace
Holding
 We are unable to say that the limited scope of the statute as thus construed contravenes the constitutional right of free expression

FIGHTING WORDS SINCE CHAPLINSKY

1. The Court’s Methodology in Excluding “Fighting Words” from First Amendment Protection
 In reaching that categorical holding, Justice Murphy engaged in balancing: he attached a low value to the speech claiming protection
(“no essential part of any exposition of ideas”; “slight social value as a step to truth”), and measured that weak variety of “speech”
against the competing state interests (“any benefit that may be derived is clearly outweighed by the social interest in order and
morality.”)
2. The Contemporary Vitality of the “Fighting Words” Exception
 The Court has never overruled Chaplinsky’s holding that “fighting words” are excluded from free speech protection, but it has not
sustained a conviction on the basis of the fighting words doctrine since Chaplinsky
3. The Limitation of the “fighting words” exception
 Later cases, however, have focused only on the breach-of-peace and order rationales
 In Gooding v. Wilson (1972), the Court reversed a conviction under a GA statute providing that any person “who shall, without
provocation, use to or of another, opprobrious words or abusive language, tending to cause a breach of the peace,” was guilty of a
misdemeanor
o Antiwar picketers at an Army building refused a police request to stop blocking access to inductees
o In the ensuing scuffle, appellee said to a police officer, “White son of a bitch, I’ll kill you,” “You son of a bitch, I’ll choke
you to death,” and “You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces.”
o Justice Brennan held:
 We have made out own examination of the GA cases and conclude that GA appellate decisions have not construed
the statute to be limited in application, as in Chaplinsky, to words that “have a direct tendency to cause acts of
violence by the person to whom, individually, the remark is addressed.”
 Later cases have also tended to limit fighting words to those directed face-to-face to an individual, rather than generally at a group.
 In Texas v. Johnson (1989), the Court invalidated on free speech grounds the conviction of a political protestor who burned an
American flag
o The statute prohibited desecration of a flag in a manner the defendant “knows will seriously offend one or more persons
likely to observe or discover such action.”
o Justice Brennan opined:
 No reasonable onlooker would have regarded Johnson’s generalized expression of dissatisfaction with the policies
of the Federal Government as a direct and personal insult or an invitation to exchange faults

Cohen v. California – SCOTUS – 1971 (Justice Harlan) (PG 999)

Facts
 Cohen was convicted of violating a CA law which prohibits “maliciously and willfully disturbing the peace or quiet of any
neighborhood or person by offensive conduct.”
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o He was given 30 days imprisonment
 On April 26, 1968, the defendant was observed in the LA County Courthouse in the corridor outside of the Municipal Court wearing a
jacket bearing the words “Fuck the Draft”
o The defendant was arrested
 The defendant testified that he wore the jacket as a means of informing the public of the depth of his feelings against the Vietnam War
and the draft
o The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct in fact commit or
threaten to commit any act of violence.
Issue
 Can CA exercise, as “offensive conduct” the word “fuck” from the public discourse, either upon the theory of the court below that its
use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public
morality, may properly remove this offensive word from the public vocabulary?
Reasoning
 The convictions quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public
o Thus, we deal here with a conviction resting solely upon “speech,” not upon any separately identifiable conduct which
allegedly was intended by Cohen to be perceived by others as expressive of particular views but which, on its face, does not
necessarily convey any message and hence arguably could be regulated without effectively repressing Cohen’s ability to
express himself
 At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not be punished for
asserting the evident position on the inutility or immorality of the draft his jacket reflected
o The First Amendment has never been thought to give absolute protection to every individual to speak whenever or wherever
he pleases
o In this vein, too, however, we think it important to note that several issues typically associated with such problems are not
presented here
 In the first place, any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous
atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put
appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless not be tolerated in certain places.
 In the second place, as it comes to us, this case cannot be said to fall within those relatively few categories of instances where prior
decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply
upon a showing that such a form was employed
 While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative
fashion, in this instance it was clearly not “directed to the person of the hearer.”
o No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct
personal insult.
 Finally, much has been made of the claim that Cohen’s distasteful mode of expression was thrust upon unwilling or unsuspecting
viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable
exposure to appellant’s crude form of protest.
o This Court has consistently stressed that “we are often ‘captives’ outside the sanctuary of the home and subject to
objectionable speech.”
o The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in
other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable
manner
 In this regard, persons confronted with Cohen’s jacket were in a quite different posture than, say, those subjected to the raucous
emissions of sound trucks blaring outside their residences
o Those in the LA Courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes
 We do not think the fact that some unwilling “listeners” in a public building may have been briefly exposed to it can serve to justify
this breach of the peace conviction where, as here, there was no evidence that persons powerless to avoid appellant’s conduct did in
fact object to it, and where the statute evinces no concern with the special plight of the captive auditor, but, instead indiscriminately
sweeps within its prohibitions all “offensive conduct” that disturbs “any neighborhood or person.”
 The rationale of the CA court is plainly untenable.
o The argument amounts to little more than the self-defeating proposition that to avoid physical censorship of one who has no
sought to provoke such a response by a hypothetical coterie of the violent and lawless, the States may more appropriately
effectuate that censorship themselves
o We cannot overemphasize that, in our judgment, most situations where the State has a justifiable interest in regulating speech
will fall within one or more of the various established exceptions to the usual rule that governmental bodies may not
proscribe the form or content of individual expression
 It is designed and intended to remove governmental restraints from the arena of public discussion, putting the
decision as to what views shall be voiced largely into the hands of each of us.
o We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful
abuse of privilege, these fundamental societal values are truly implicated.
 We discern certain more particularized considerations that peculiarly call for reversal of this conviction
o First, the principle contended for by the State seems inherently boundless
 Indeed, we think it is largely because government officials cannot make principled distinctions in this area that the
Constitution leaves matters of taste and style so largely to the individual
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o Additionally, we cannot overlook the fact that much linguistic expression serves a dual communicative function: it
conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well
 We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has
little or no regard for that emotive function which, practically speaking, may often be the more important element of
the overall message sought to be communicated
o Finally, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk
of suppressing ideas in the process
Holding
 It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with
the First Amendment, make the simple public display here involved of this single four-letter expletive a criminal offense.
Dissent (Justice Blackmun, Chief Justice Burger, Black)
 I dissent for two reasons
o Cohen’s absurd and immature antic, in my view, was mainly conduct and little speech
o Further, the case appears to me to be well within the sphere of Chaplinsky.

OFFENSIVE SPEECH

1. Cohen and Chaplinsky

 Cohen highlighted 3 limitations on the holding of Chaplinsky:
o First, Chaplinsky included “the lewd” and “the profane” as categories of speech not entitled to First Amendment protection
 Cohen made clear, however, that profanity was at least sometimes protected speech
o Second, Cohen reiterated that the fighting words exception is limited to statements “directed to the person of the hearer,” not
addressed generally to the world at large
o Third, Cohen undermined the notion that there is any unprotected category of “words that by their very utterance inflict
injury.”

Section 4. Injury to Reputation, Sensibility, Dignity, and Equality

LIBEL

 The court in Chaplinsky readily categorized libel – the tortious assertion as facts of defamatory statements about an individual – as a
category of speech undeserving of any First Amendment protection

Beauharnais v. Illinois – SCOTUS – 1956 (Justice Frankfurter) (PG 1004)

Facts
 Beauharnais, president of the White Circle League in IL, had organized the circulation of a leaflet setting forth a petition calling on
Chicago officials “to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and
persons, by the Negro.”
o The leaflet called on Chicago’s white people to unite and warned that if “persuasion and the need to prevent the white race
from becoming mongrelized by the negro will not unite us, then the aggressions, rapes, robberies, knives, guns, and weed of
the negro surely will.”
 He was convicted under an IL criminal libel law prohibiting the publishing, selling, or exhibiting in any public place of any
publication which “portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or
religion, of which exposes the citizens or any race, color, creed or religion to contempt, derision, or obloquy, or which is productive of
breach of the peace or riots.”
Issue
 Does the 14th amendment prevent a State from publishing such libels – as criminal libel has been defined, limited and constitutionally
recognized time out of mind – directed at designated collectivities and flagrantly disseminated?
Reasoning
 The statute before us is not a catchall enactment
o It is a law specifically directed at a defined evil.
 If an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same
utterance directed at a defined group, unless we can say that this is a willful and purposeless restriction unrelated to the peace and
well-being of the State.
 In the face of IL history and its frequent obligato of extreme racial and religious propaganda, we would deny experience to say that the
IL legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public
places and by means calculated to have a powerful emotional impact on those to whom it was presented.
o We are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be
outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably
involved.
Holding
 We find no warrant in the Constitution for denying to IL the power to pass the law here under attack
Dissent (Justice Black and Douglas)
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 However tagged, the IL law is not that criminal libel which has been “defined, limited and constitutionally recognized time out of
mind.”
 This limited scope of the law of criminal libel has confined state punishment of speech and expression to the narrowest of areas
involving more than purely private feuds
o I think the First Amendment “absolutely” forbids such laws without any “ifs” or “buts” or “whereases.”

THE LEGACY OF BEAUHARNAIS

3. Broader “fundamentals” of reputation

 Consider the view that Justice Black’s claim ignores a key difference between the personal reputation concerns that animate civil libel
cases and the “broader social concern for the fundamentals of anyone’s reputation or civic dignity as a member of society in good
standing” that has served as the focus of criminal libel law.

FIRST AMENDMENT LIMITS ON LIBEL

New York Times Co. v. Sullivan – SCOTUS – 1964 (Justice Brennan) (PG 1007)

Parties
 Plaintiff is Mr. Sullivan, the Montgomery, AL police commissioner.
 Defendants are the New York Times, a national newspaper, and several black clergymen
Facts
 This libel action stemmed from a paid, full-page, fundraising advertisement in the NYT in March 1960 by the Committee to defend
Martin Luther King and the Struggle for Freedom in the South
o The ad, headed “Heed Their Rising Voices,” charged the existence of “an unprecedented wave of terror” against blacks
engaged in nonviolent demonstrations in the South
 Sullivan objected especially to the claim that “truckloads of police armed with shotguns and tear-gas ringed the AL State College
Campus” in Montgomery and complained about inaccuracies such as the statement that Dr. King had been arrested seven times when
he was only arrested four times.
o Sullivan offered no proof that he had suffered actual pecuniary loss
o He recovered a judgment for $500,000 under AL libel law.
 Under AL law, a publication is “libelous per se” if the words “tend to injure a person in his reputation” or to “bring him into public
contempt.”
o Once “libel per se” has been established, the defendant has no defense as to stated facts unless he can persuade the jury that
they were true in all their particulars
o Unless he can discharge the burden of proving truth, general damages are presumed, and may be awarded without proof of
pecuniary injury.
Issue
 To what extent do the constitutional protections for free speech and press limit a State’s power to award damages in a libel action
brought by a public official against critics of his official conduct?
Reasoning
 None of the cases of this Court sustained the use of libel laws to impose sanctions upon expression critical of the official conduct of
public officials.
o Libel can claim no talismanic immunity from constitutional limitations
o It must be measured by standards that satisfy the First Amendment
 The question is whether the present advertisement forfeits protection by the falsity of some of its factual statements and by its alleged
defamation of respondent
 Erroneous statement is inevitable in free debate and must be protected if the freedoms of expression are to have the “breathing space”
that they “need to survive.”
o Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual
error
o Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence
diminishes their official reputations.
 If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the
combination of the two elements is no less inadequate
o This is the lesson to be drawn from the great controversy over the Sedition Act of 1798.
o Its invalidity has also been assumed by Justices of this Court
 The Act, because of the restraint it imposed upon criticism of government and public officials was inconsistent with
the First Amendment.
 What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.
o Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those
who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive
 A defense for erroneous statements honestly made is no less essential here than was the requirement of proof of guilty knowledge
which we have held indispensible to a valid conviction of a bookseller for possessing obscene wirings for sale.
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o Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is
believed to be true and even though it is in fact true, because of doubt whether it can be proved in court for fear of the
expense of having to do so.
 The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” – that is, with
knowledge that it was false or with reckless disregard of whether it was false or not.
o We also think the evidence was constitutionally defective in another respect: it was incapable of supporting the jury’s finding
that the allegedly libelous statements were made “of and concerning” respondent
 As the highest state courts made clear, reliance was placed solely on the bare fact of respondent’s official position
 This raises the possibility that a good-faith critic of government will be penalized fro his criticism and strikes at the
very center of the constitutionality protected are of free expression
Holding
 We hold that the rule of law applied by the AL courts is constitutionality deficient for failure to provide the safeguards for freedom of
speech and of the press that are required by the First Amendment in a libel action brought by a public official against critics of his
official conduct.
Concurrence (Justice Black and Douglas)
 I base my vote to reverse on the belief that the First and 14 th Amendments not merely “delimit” a State’s power to award damages to
“public officials against critics to their official conduct” but completely prohibit a State from exercising such a power
o The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public
affairs
Concurrence (Justice Goldberg and Douglas)
 The Constitution affords an absolute, unconditional privilege to criticize official conduct of pubic officials
o It does not, however, protect defamatory statements directed against the private conduct of a public official or private citizen.

THE MEANING AND IMPLICATIONS OF NEW YORK TIMES

2. The First Amendment interest in false statements of fact

 A decade later, Justice Powell wrote for the Court in Gertz v. Welch (1974), that although “under the First Amendment there is no
such thing as a false idea, there is no constitutional value in false statements of fact.
 Consider Justice Brennan’s statement soon after NYT, in Garrison v. Louisiana (1964), which extended the NYT principle to state
criminal libel cases:
o Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow
that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity.
 In Milkovich v. Lorain Journal Co. (1990), Chief Justice Rehnquist explained that any statement that “does not contain a provably
false factual connotation will receive full constitutional protection,” but that a false statement of fact gains no constitutional immunity
if the speaker simply adds “the words ‘I think.’”
 In US v. Alvarez (2012), a case that arose outside the First Amendment, SCOTUS found that the First Amendment to forbid the
criminalization of false statements of fact.
o The Stolen Valor Act made it a crime to falsify claim receipt of military decorations of medals, and provided an enhanced
penalty if the Congressional Medal of Honor was involved.
 Xavier Alvarez was convicted under the Act
o The Court rejected the argument that false statements were completely outside the First Amendment protection and held that
counter-speech was sufficient to achieve the government’s asserted interest in preserving the integrity and purpose of the
Medal.
o Justice Kennedy applied the “exacting scrutiny” he deemed appropriate to such a content-based restriction even in the context
of regular falsity, emphasizing that the Court’s libel precedents had never said false statements deserve no protection, and
explaining that “our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.
 The remedy for speech that is false is speech that is true.
 The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straightout lie, the simple
truth
o Justice Breyer, joined by Kagan, concurred only in judgment, noting that:
 False factual statements can serve useful human objectives, for example: in social contexts, where they may prevent
embarrassment, protect privacy, shield a person form prejudice, provide the sick with comfort, or preserve a child’s
innocence; in such contexts, where they may stop a panic or otherwise preserve calm in the face of danger, and even
in technical, philosophical, and scientific contexts, where examination of a false statement can promote a form of
thought that ultimately helps realize the truth.
o Justice Alito, in a dissent joined by Scalia and Thomas, argued that the Court had “repeatedly endorsed the principle that
false statements of fact do not merit First Amendment protection for their own sake” and that “the Stolen Valor Act presents
no risk at all that valuable speech will be suppressed.”

HATE SPEECH (PG 1035)

 Should the First Amendment limit efforts to curb speech perceived as harmful and offensive to racial or religious minorities or other
historically disempowered groups, apart from the tendency of that speech to incite immediate violence or provoke an immediate fight?
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R.A.V. v. City of St. Paul – SCOTUS – 1992 (Justice Scalia) (PG 1039)

PH and Outcome
 Defendant moved to dismiss
 The trial court granted the motion but the MN Supreme Court reversed
 SCOTUS reverses the MN Supreme Court
Facts
 In the predawn hours of June 21, 1990m petitioner and several other teenagers allegedly assembled a crudely-made cross by taping
together broken chair legs
o They then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house
where petitioner was staying
 One of the two provisions under which St. Paul chose to charge petitioner (then a juvenile) was the St. Paul Bias-Motivated Crime
Ordinance which provides:
o Whoever placed on public or private property a symbol, object, appellation, characterization or graffiti, including, but not
limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or
resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a
misdemeanor.”
Issue
 Is this statute facially invalid under the first Amendment on the ground that it is substantially overbroad and impermissibly content-
based?
Reasoning
 The First Amendment generally prevents government from proscribing speech
o From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the
content of speech in a few limited areas, which are “of such slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in order and morality.”
 We have sometimes said that these categories of expression are “not within the area of constitutionality protected speech,” or that the
“protection of the First Amendment does not extend” to them
o What such statements mean is that these areas of speech can, consistently with the First Amendment, be regulated because of
their constitutionally proscribed content – not that they may be made the vehicles for content discrimination unrelated to their
distinctively proscribable content.
 Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing
only libel critical of the government
o The proposition that a particular instance of speech can be proscribable on the basis of one feature (obscenity) but not on the
basis of another (opposition to the city government) is commonplace, and has found application in many contexts
 Thus, the exclusion of “fighting words” from the scope of the First Amendment simply means that, for purposes of that Amendment,
the unprotected features of the words are, despite their verbal character, essentially a “non-speech” element of communication
o As with the sound truck, so with fighting words: The government may not regulate use based on hostility – or favoritism –
towards the underlying message expressed
 The concurrences describe us as setting forth a new First Amendment principle that prohibition of constitutionally proscribable speech
cannot by “underinclusive” so that “a government must either proscribe all speech or no speech at all.”
o In our view, the First Amendment imposes not an “underinclusiveness” limitation but a “content discrimination” limitation
upon a State’s prohibition of proscribable speech.
 Even the prohibition against content discrimination that we assert the First Amendment requires is not absolute
o When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is
proscribable, no significant danger of idea or viewpoint discrimination exists.
 Thus, a state might choose to prohibit only that obscenity which is the most patently offensive in its prurience – i.e.,
that which involves the most lascivious displays of sexual activity.
 But it may not prohibit, for example, only that obscenity which includes offensive political messages.
 Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass
happens to be associated with particular “secondary effects” of the speech, so that the regulation is “justified without reference to the
content of the speech.”
o A state could, for example, permit all obscene live performances except those involving minors
o Moreover, since words can in some circumstances violate laws directed not against speech but against conduct, a particular
content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed
at conduct rather than speech.
 Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VII’s
general publication against sexual discrimination in employment practices.
 Finally, it may not even be necessary to identify any particular “neutral” basis, so long as the nature of the content discrimination is
such that there is no realistic possibility that official suppression of ideas is afoot.
 Applying these principles to the St. Paul ordinance, we conclude that, even as narrowly construed by the MN Supreme Court the apply
only to “fighting words,” the remaining, unmodified terms make clear that the ordinance applies only to “fighting words” that insult,
or provoke violence, “on the basis of race, color, creed, religion or gender.”
o The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on
disfavored subjects.
 In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination.
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o One could hold up a sign saying, for example, that all “anti-Catholic bigots” are misbegotten; but not all “papists” are, for
that would insult and provoke violence “on the basis of religion.”
o St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of
Queensbury Rules.
 The content-based discrimination reflected in the St. Paul ordinance comes within neither any of the exceptions to the First
Amendment prohibition we discussed earlier, nor within a more general exception for content discrimination that does not threaten
censorship of ideas
o St. Paul has not signaled out an especially offensive mode of expression – rather, it has proscribed fighting words of whatever
manner that communicate messages of racial, gender, or religious intolerance.
 Finally, St. Paul argues that, even if the ordinance regulates expression based on hostility towards its protected ideological content,
this discrimination is nonetheless justified because it is narrowly tailored.
o We do not doubt that these interests are compelling, and that the ordinance can be said to promote them.
o The dispositive question in this case, however, is whether content discrimination is reasonably necessary to achieve St. Paul’s
compelling interests; it plainly is not
 In fact the only interest distinctively served by the content limitation is that of displaying the city council’s special
hostility towards the particular biases thus singled out
 That is precisely what the First Amendment forbids.
Holding
 We conclude that the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the
subjects the speech addresses.
Concurrence in Judgment (Justice White, Blackmun, O’Connor and Stevens (except as to Part I(A))
 I agree with the majority that the judgment of the MN Supreme Court should be reversed
o However, our agreement ends there.
 This Court has long held certain discrete categories of expression (i.e., child pornography, obscenity, and most libel) to be
proscribable on the basis of their content.
o But the Court has held that the First Amendment does not apply to them because their expressive content is worthless or of de
minimus value to society.
 It is inconsistent to hold that the government may proscribe an entire category of speech because the content of that speech is evil, but
that the government may not treat a subset of that category differently without violating the First Amendment; the content of the
subset is by definition worthless and undeserving of constitutional protection
o By categorizing fighting words as a form of “debate,” the majority legitimates hate speech as a form of public discussion.
 In a second break with precedent, the Court refuses to sustain the ordinance even though it would survive under the strict scrutiny
applicable to other protected expression.
o This appears to be a general renunciation of strict scrutiny review, a fundamental tool of First Amendment analysis.
 The Court has patched up its argument with an apparently nonexhaustive list of ad hoc exceptions, in what can be viewed either as an
attempt to confine the effects of its decision to the facts of this case, or as an effect to anticipate some of the questions that will arise
from its radical revision of First Amendment law.
 The St. Paul ordinance is unconstitutional
o However, I would decide the case on overbreadth grounds
o Our fighting words cases have made clear that such generalized reactions are not sufficient to strip expression of its
constitutional protection
 The ordinance is therefore fatally overbroad and invalid on its face.
Concurrence in Judgment (Justice Blackmun)
 I see no First Amendment values that are compromised by a law that prohibits hoodlums from driving minorities out of their homes by
burning crosses on their lawns, but I see great harm in preventing the people of St. Paul from specifically punishing the race-based
fighting words that so prejudice their community
Concurrence in Judgment (Justice Stevens (Justice White and Blackmun join as to Part I))
 This new absolutism in the prohibition of content-based regulations severely contorts the fabric of settled First Amendment
o Assuming that the Court is correct that obscenity and fighting words are not wholly “unprotected,” it certainly does not
follow that fighting words and obscenity receive the same sort of protection afforded to core political speech
 Just as Congress may determine that threats against the President entail more severe consequences than other threats, so St. Paul may
determine that threats based on the target’s race, religion, or gender cause more severe harm to both the target and to society than
other threats.
 Although I agree with much of Justice White’s analysis, I do not join Part I-A because I have reservations about the “categorical
approach” to the First Amendment.
o As an initial matter, the concept of “categories” fits poorly with the complex reality of expression
o Moreover, the categorical approach does not take seriously the importance of context.
 I disagree with both the Court’s and part of Justice White’s analysis of the constitutionality of St. Paul’s ordinance.
o Unlike the court, I do not believe that all content-based regulations are equally infirm and presumptively invalid; unlike
Justice White, I do not believe that fighting words are wholly unprotected by the First Amendment.
 To the contrary, I believe that our decisions establish a more complex and subtle analysis, one that considers the
content and context of the regulated speech, and the nature and scope of the restriction on speech
o Applying this analysis and assuming arguendo (as the Court does) that the St. Paul ordinance is not overbroad, I conclude
that such a selective subject-matter regulation on proscribable speech is constitutional
 Two things are clear:
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o First, by hypothesis the ordinance bars only low-value speech, namely, fighting words.
o Second, the ordinance regulates “expressive conduct rather than the written or spoken word.”
 The St. Paul ordinance regulates speech not on the basis of subject matter or the viewpoint expressed, but rather on the basis of the
harm the speech causes.
o To extend the Court’s pugilistic metaphor, the St. Paul ordinance simply bans punches “below the belt” – by either party
 It does not, therefore, favor one side of any debate.
 Taken together, these several considerations persuade me that the St. Paul ordinance is not an unconstitutional content-based
regulation of speech
o Thus, were the ordinance not overbroad, I would vote to uphold it.

THE MEANING AND IMPLICATIONS OF R.A.V.

1. The Hate Speech Doctrine

 Should St. Paul’s law have survived even as written under the forgotten branch of Chaplinsky that included words that “by their very
utterance inflict injury”?
o On this view, racist or other bigoted epithets should be no more protected when they cause fright or flight than when they
cause fights, for in either case they are “no essential part of any exposition of ideas.”
 Those opposing such initiatives object that hate speech regulation “would endanger fundamental free speech values,” “violate the
cardinal principles that speech restrictions must be content-and viewpoint-neutral,” and go well beyond the narrow bounds the Court
has imposed on the “fighting words” exception.
o Other opponents suggest that such regulations are unduly paternalistic as well as misguided because articulate diatribe about
racial inferiority, which is not proscribable as hate speech, might well be more hurtful to an individual and contribute more to
the social construction of racism than do vulgar racial epithets, which are disfavored under conventional social norms and
thus more easily discounted or ignored.
3. Distinguishing the Regulation of Hate Speech From Regulation of Hate Crimes
 One term after R.A.V., two state supreme Courts – Wisconsin and Ohio – has reasoned that aggravating the penalty for racially
motivated hate crimes violated the principle of viewpoint neutrality set forth in RAV.
 In Wisconsin v. Mitchell (1993), SCOTUS unanimously rejected that argument, drawing a sharp distinction between the regulation of
speech and conduct
o Chief Justice Rehnquist wrote:
 On the evening of October 7, 1989, a group of young black men and boys, including Mitchell, gathered at an
apartment complex
 The group moved outside and Mitchell asked them: “Do you all feel hyped up to move on some white
people?”
 Shortly thereafter, a young white boy approached
 Mitchell said: “You all want to fuck somebody up? There goes a white boy; go get him.”
 The group ran towards the boy, beat him severely, and stole his tennis shoes
o The boy was rendered unconscious and remained in a coma for four days.
 Mitchell was convicted of aggravated battery, which carries a maximum sentence of two years
 But because the jury found that Mitchell had intentionally selected his victim because of the boy’s race, the
maximum sentence for Mitchell’s offense was increased to seven years.
 Mitchell argues that the Wisconsin penalty-enhancement statute is invalid because it punishes the defendant’s
discriminatory motive, or reason, for acting.
 But a defendant’s motive for committing an offense is traditionally a factor considered by a judge at
sentencing, and motive plays the same role under the Wisconsin statute as it does under federal and state
antidiscrimination laws, which we have previously upheld against constitutional challenge.
 Nothing in our decision in R.A.V. compels a different result here
 Whereas the ordinance struck down there was explicitly directed at expression (i.e., “speech” or
“messages”), the statute in this case is aimed at conduct unprotected by the First Amendment
 The State’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement
provision over and above mere disagreement with offenders’ beliefs or biases.
6. The Problem of True Threats
 In dicta in R.A.V., Justice Scalia assumed that threats are an unprotected category of speech and that threats of violence against the
President are a permissibly proscribable subcategory of that category of unprotected speech.
 In Watts v. US (1969), the Court reversed, per curiam, a conviction under a 1917 law making it a felony “knowingly and willfully” to
make “any threat to take the life” of the President.
o Petitioner had said at a public rally, “Now I have already received my draft classification as 1-A and I have got to report for
my physical this Monday coming. I am not going. If they every make me carry a rifle, the first man I want to get in my sights
is LBJ They are not going to make me kill my black brothers.”
o The opinion stated:
 We agree with petitioner that his only offense was “a kind of very crude offensive method of stating a political
opposition to the President.”
 Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners
laughter, we do not see how it could be interpreted otherwise.”
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Virginia v. Black – SCOTUS – 2003 (Justice O’Connor) (PG 1051)

Facts
 Respondents were convicted of violating VA’s cross-burning statute, §18.2-423
o That statute provides:
 IT shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to
burn, or cause to be burned, a cross on the property of another, a highway of other public place
 Any person who shall violate any provision of this section shall be guilty of a Class 6 felony
 Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.
 Black was convicted after a jury trial in which the just was instructed that “the burning of a cross by itself is sufficient evidence from
which you may infer the required intent” to intimidate.
o The Supreme Court of VA reversed the conviction under R.A.V.
Issue
 Does VA’s statute banning cross burning with “an intent to intimidate a person or group of persons” violate the First Amendment?
Reasoning
 Burning a cross in the US is inextricably intertwined with the history of the KKK
 The genesis of the Second Klan began in 1905
o Form the inception of the second Klan, cross burnings have been used to communicate both threats of violence and messages
of shares ideology.
 Often, the Klan used cross burnings as a tool of intimidation and a threat of impending violence.
 Throughout the history of the Klan, cross burnings have also remained potent symbols of shares group identity and ideology
o The burning cross became a symbol of the Klan itself and a central feature of Klan gatherings
o And cross burnings featured prominently in Klan rallies when the Klan attempted to move toward more nonviolent tactics to
stop integration.
 To this day, the burning of a cross is a “symbol of hate.”
o Moreover, the history of violence associated with the Klan shows that the possibility of injury or death is not just
hypothetical
o In sum, while a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the
recipients of the message fear for their lives.
 Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person
or group of persons with the intent of placing the victim in fear of bodily harm or death
o Some cross burnings fit within this meaning of intimidating speech
 We did not hold in R.A.V. that the First Amendment prohibits all forms of content-based discrimination within a proscribable area of
speech
o Unlike the statute at issue in RAV, the VA statute does not single out for opprobrium only that speech directed toward “one
of the specified disfavored topics.”
o Moreover as a factual matter it is not true that cross burners directing their intimidating conduct solely to racial or religious
minorities.
 The First Amendment permits VA to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly
virulent form of intimidation.
o Instead of prohibiting all intimidating messages, VA may choose to regulate this subset of intimidating messages in light of
cross burning’s long and pernicious history as a signal of impeding violence.
 The prima facie evidence provision, as interpreted by the jury instruction in Black’s case, renders the statute unconstitutional
o The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their
constitutional right not to put on a defense and the Commonwealth to arrest, prosecute, and convict a person based solely on
the fact of cross burning itself.
 The prima facie provision makes no effort to distinguish among these different types of cross burnings
o The prima facie evidence provision in this case ignores all of the contextual factors that are necessary to decide whether a
particular cross burning is intended to intimidate.
 The First Amendment does not permit such a shortcut.
Holding
 We conclude that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate,
the provision in the VA statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute
unconstitutional in its current form
Concurrence (Justice Stevens)
 For the reasons stated in the separate opinions that Justice White and I wrote in R.A.V., that simple proposition provides a sufficient
basis or upholding the basic prohibition in the VA statute even though it does not cover other types of threatening expressive conduct.
Concurrence in part, concurrence in judgment in part, dissenting in part (Justice Scalia and Thomas)
 I agree with the Court that, under our decision in R.A.V., a State may, without infringing the First Amendment, prohibit cross burning
carried out with the intent to intimidate.
o But I believe there is no justification for the plurality’s apparent decision to invalidate the prima-facie-evidence provision on
its face
o Presentation of evidence that a defendant burned a cross in public view is automatically sufficient, on its own, to support an
inference that the defendant intended to intimidate only until the defendant comes forward with some evidence in rebuttal
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 The class of persons that the plurality contemplates could impermissibly be convicted under the statute includes only those
individuals who:
o 1. Burn a cross in public view;
o 2. Do not intend to intimidate;
o 3. Are nonetheless charged and prosecuted; and
o 4. Refuse to present a defense.
 The motion that the set of cases identified by the plurality in which convictions might improperly be obtained is sufficiently large to
render the statute substantially overbroad is fanciful
Concurrence in judgment in part, dissenting in part (Justice Souter, Kennedy and Ginsburg)
 I disagree that any exception should save VA’s law form unconstitutionality under the holding of R.A.V. or any acceptable variation
of it.
 R.A.V. holds that prohibition by subcategory is nonetheless constitutional if it is made “entirely” on the “basis” of “the very reason”
that “the entire class of speech at issue is proscribable” at all
o This case does not present any analogy to the statute prohibiting threats against the President
o A content-based proscription of cross burning may be a subtle effort to ban not only the intensity of the intimidation cross
burning causes when done to threaten, but also the particular message of white supremacy that is broadcast even by
nonthreatening cross burning.
 No content-based statute should survive under R.A.V. without a high probability that no “official suppression of ideas is afoot.”
o I believe the prima facie evidence provision stands in the way of any finding of such high probability here
 To the extent the prima facie evidence provision skews prosecutions, then, it skews the statute toward suppressing
ideas.
Dissent (Justice Thomas)
 Although I agree with the majority’s conclusion that it is constitutionally permissible to “ban cross burning carried out with intent to
intimidate,” I believe that the majority errs in imputing an expressive component to the activity in question
 In the early 1950s the people of VA viewed cross burning as creating an intolerable atmosphere of terror
o It strains credulity to suggest that a state legislature that adopted a litany of segregationist laws self-contradictorily intended
to squelch the segregationist message.
 Accordingly, this statute prohibits only conduct, not expression
 In light of my conclusion that the statute here addresses only conduct, there is no need to analyze it under any of our First Amendment
 Asdf
 In Elonis v. US (2015), a man who was angry that his wife had left him was convicted for posting apparently threatening statements
about his former wife in rap-lyric form on Facebook under USC §875(c), which makes it a crime to transmit in interstate commerce
“any communication containing any threat to injure the person of another.”
o The Court overturned the conviction on a non-constitutional ground
o Justice Alito, concurring in part and dissenting in part, would have added that a finding of recklessness was sufficient to
convict
 HE argued that the conviction on recklessness grounds would not violate the First Amendment:
 It is settled that the Constitution does not protect true threats.
 Elonis argues that the First Amendment protects a threat if the person making the statement does not
actually intend to cause harm
o But whether or not the person making a threat intends to cause harm, the damage is the same
 Elonis also claims his threats were constitutionally protected work of art
o But context matters
 Taken in context, lyrics in songs that are performed for an audience or sold in recorded
form are unlikely to be interpreted as a real threat to a real person.
 Statements made on social media that are potentially directed at their victims, by
contrast, are must more likely to be taken seriously.