Please enable JavaScript.

Coggle requires JavaScript to display documents.

CON LAW 2 - Coggle Diagram

- - - - Content Based - strict scrutiny; Content Neutral - Intermediate Scrutiny
      - Compensation for Speech - Prohibiting Payment – considered – means to “infringe” freedom of Speech - Son of Sam Law - not sell story for profit – bad; content based statute - not narrow
      - United States v. Nat'l Treasury Employees Union [1995] - Total ban on honoraria to federal employees even for unrelated speeches and activities - not tailored - no relationship to job.
    - - West Virginia State Board of Education v. Barnette (1943) - Flag salute is speech - can not require
      - Wooley v. Maynard (1977) - not require “Live Free or Die” on NH license tag - “right to refrain from speaking”
      - Rumsfeld v. Forum for Academic and Institutional Rights (2006) - lose funding if bar recruiting - are vs military policy on homosexuals - not compelled speech - regulates conduct - can still say what and when they want and when they want
      - Hurley (1995) - can’t require private group to include gay group in parade
      - Anonymity – part of right not to speak - Talley v. California (1960) - ban on anonymous handbills - bad - right to criticize oppressive practices
      - McIntyre v. Ohio Elections Commission (1995) - Ohio statute - no anonymous campaign literature “Exacting scrutiny” - “narrowly tailored to serve an overriding state interest” – not narrowly tailored - opposite points of view just supply extra information [MHB -“ answer to bad speech is more speech”]
      - Buckley v. American Constitutional Law Foundation (1999) - Colorado law - gather signatures for ballot initiatives required wear ID tag; report names of paid circulators and amount paid - need for anonymity flouted - so bad
      - But cf - John Doe v. Reed (2010) - Washington state law - names on petition for referendum – must disclose names and address - here combat fraud, detect invalid signatures, transparency [otherwise could make up names] –
      - Natl. Federation of Life v. Becerra (2018)
        
        California statute – mandated notice in clinics for pregnant women – as to limits of offer – pro-life – not fully licensed facility; others that provide services – called unlicensed – and must notify
        
        both unconstitutional – compelled content based speech [also viewpoint based]
        
        Licensed – must tell of abortion funding and services –strict scrutiny –
        
        Even if accept “professional speech exception” – intermediate scrutiny still bad – under-inclusive
      - Union Cases – Abood (1977); Keller (1990) [lawyers – bar associations]; Knox (2012) – dues must be for purposes of association – not force member to pay for non-associational purposes - - Knox – must “opt in”
        
        Now Abood overruled- Janus v. AFL (2018) – is both vs free speech and free association – hostile – very anti-union – forced “subsidize speech” – “shanghai” employee – reject stare decisis
    - - Issue – Government can’t condition a benefit on giving up a Constitutional right - Cases – Inconsistent – more recent cases seem to allow – focus on right involved - and if say “conditioned benefit” or “spending for speech”
      - Theory – Can give X – and not Y - ok – how spend money
      - Give to X – but only - if do or not do Y – if condition is vs freedom of speech!
      - Speiser v. Randall (1958) - state veterans property tax exemption - must sign oath of loyalty – bad - penalty for speech and so bad
      - FCC v. LWV (1984) - statute bar non-commercial educational broadcasting station from editorializing - bad
      - vs
      - Regan v. Taxation with Representation (1983) - federal tax law condition tax exempt status - not lobby or partisan political activities –not condition, just not pay for lobbying -
      - Rust v. Sullivan (1993) - family-planning services funds but not if involve abortion - and mean no counseling or referral or activities that "encourage, promote or advocate” - Not improperly condition a benefit - is only saying what limited purposes money can be used for
      - Legal Services v. Velazquez (2001) - Legal Service Corporation Act - prohibits recipients from challenging existing welfare laws - limited forum – can provide subsidy for limited ends - but not vs traditional role of attorneys
      - United States Agency for International Development v. Alliance for Open Society (2013) - Fight AIDS - bar money to organizations that not explicitly have policy opposed to prostitution and drug trafficking - not work with prostitutes in fight vs AIDS - - unconstitutional burden on 1st Amend-ment - must “adopt” and accept government’s point of view - outside program’s of scope
      - In 2020 – said could apply bar to foreign affiliates – not same rights as American citizens
    - - Cases mixed - if government “encourages” entity to refrain from expression – is that unconstitutional?
      - Line is “coercion” or disclosure
      - Bantam Books v. Sullivan (1963) - unconstitutional for Rhode Island to identify “objectionable books” and ask sellers not to sell them and that would recommend obscenity prosecution if continue to do so; followed by visit by police officers - coercion
      - Meese v. Keene (1987) - could label a film - as political propaganda [here anti-nuclear speech film] and when show - must so describe film up front - not unconstitutional - just additional disclosure
      - So when is it impermissible pressure? - ? Government rating system of films - just disclosures or pressure for self-censorship
  - - - History – Four Tests
        
        Clear and Present Danger;
        
        “Reasonableness;”
        
        Gravity of Evil times likelihood;
        
        Likelihood of imminent illegal conduct [Now]
      - Clear and Present Danger - Moved to Imminence
        
        Need “clear and imminent danger” - Best test of truth is power of thought to get itself accepted in the [free trade in ideas] competition of the market
        
        War Against Terrorism - ? Return to Deference - Holder v. Humanitarian Law Project (2010) - crime to “knowingly provide” material support for foreign terrorist organization – Here training in advocacy - OK - Not ban on pure speech – only “material aid to terrorist organizations in form of speech” - speech can promote Terrorism-Frees up resources for violent ends; Lends legitimacy
        
        Fighting Words
        
        Since 1942 - Court has never upheld a fighting words conviction -
        
        Street v. NY (1969) - burned flag - after Meredith shot – inflammatory; not “fighting”; Texas v. Johnson (1989) -flag burning – provoking violent response not enough – Needs be directed to specific person
        
        IMMINENCE
        
        Hostile Audiences - Applied “clear and present danger” of lawlessness – above mere annoyance - – Not really ever allowed to stop speech - “narrow tailoring” defeat
        
        R.A.V. v. City of St. Paul (1992) - burned cross yard of a black family - vs "bias-motivated crime ordinance“ – unconstitutional – content based - even if like fighting words - here only vs racist speech - content discrimination
    - - Premise - “Obscenity” is “unprotected” - but what is “obscenity”
      - ? special category allowing regulation about child pornography?;
      - ? special Constitutionally allowable processes for sexually oriented speech? [zoning; dancing; licensing; seizure; schools; broadcast media]?
      - Stewart - Jacobellis - can’t really describe what is obscene - “but know it when I see it”
      - Now Miller v. California (1973) - three-part test:
        
        (1) whether the average person applying contemporary community standards defined the work taken as a whole appeals to the prurient interest [local juries decide - What is good for Las Vegas and New York City, might not be good for the people of Maine and Mississippi];
        
        (2) whether the work depicts, or describes in an patently offensive way, sexual conduct specifically defined by the applicable state law [Not need absolute complete list – Clear examples: ultimate sexual acts; masturbation; excretion; lewd depictions of genitals - but are limits];
        
        (3) whether the work taken as a whole, lacked serious literary, artistic, political or scientific value [National Standard].
      - Child Pornography
        
        New York v. Ferber (1982) - bar sexual performances by under 16 - “Greater leeway” in review [MHB – “Compelling Interests”] - content based but “evil so overwhelmingly outweighs expressive interests” - not over broad – Still needs “scienter” [knowledge]
        
        Ashcroft v. Free Speech Coalition (2002) - federal statute - Ban on “virtual” child pornography – too broad – needs to involve children
      - Zoning and Low-Value Speech
        
        Certain types of speech – “not quite obscene” – but still of low value – so “more leeway”
        
        Young v. American Mini-Theaters (1976) - Zoning – for “adult theaters” – Is “Content Based” – but “difference in content may require a different government responses” [MHB – Weighing]
        
        Nude Dancing – Barnes v. Glenn Theatre (1991)– bar totally nude dancing; conduct so semi-strict scrutiny – valid - societal order
        
        Notes – - should there be “in-between category “ – “low value speech” - hierarchy of speech - child pornography; adult entertainment
      - Private Possession
        
        Stanley v. Georgia (1969) - Search of private home - obscene films - not use
        
        Even if obscene - privacy rights –
        
        Note – Never Extended - United States v. Reidel (1971) - no right to receive obscene materials – [? If right to have; right to receive]
        
        Osborne v. Ohio (1990) - search of home; photographs of child pornography - Limit Stanley - child pornography value de minimis – interests vs child pornography far exceed justifications – protect victims of child pornography - destroy the market
    - - Cohen v. California (1971) - statute bar “Offensive Conduct” – In courthouse, wear jacket says “Fuck the Draft” - “Offensive conduct” –too broad a term and limitless – vague and overbroad
      - Radio/TV - FCC v. Pacifica (1978) - Carlin – 12 Filthy Words – licensing - Can regulate – broadcast media – unique and highly regulated
      - Telephone - Sable Communications v. FCC (1989) - Statute bar obscene or indecent phone calls – end “Dial a Porn”- Can ban obscene; not “indecent “
      - Internet - Reno v. ACLU (1997) - Internet - allow restrictions on obscene speech but not merely indecent - “”indecent and patently offensive” - vague - chilling
      - Ashcroft v. ACLU - 2004 - Child On-Line Protection Act – regulate commercial sexually oriented web-sites - must get proof of age - content based - sexual speech - Less restrictive means possible - “filtering devices”
      - Cable - Denver Area Educational Tele-communications Consortium, Inc., v. Federal Communications Commission (1996) –
      - Operators can decide whether to broadcast patently offensive sex material on leased access channels; knocks out provisions that require blocking of programming [not N/T] and which allows operators to prevent transmission of “patently offensive material” on public access channels - not N/T – is “public forum”
      - United States v. Playboy (2000) – federal statute - cable operators must take actions to limit sexually oriented programming - operators chose “time channeling [eliminate availability certain channels] - content based - less restrictive alternatives possible - “blocking”
    - - United States v. Stevens (2010) - Federal statute criminalize commercial sale and possession of animal cruelty - - Strict Scrutiny - not area of “unprotected speech” category - “on its face review - “Alarming overbreadth” –
      - Brown v. Entertainment Merchants (2011) - California bars sale of violent video games to minors and requires labeling - “18” - Protected by 1st Amendment – communicates ideas and even social messages - history – books; fairy tales; movies - underinclusive – books; cartoons
  - - - Reasonableness – ban or T,P,M - Analysis either “on its face” or “as applied” - Justification – very important reason; and clear criteria [vs discretion]
      - Lovell v. City of Grifffin (1938) – ordinance – permission to distribute written literature - invalid on face – prior restraint – “liberty of circulating”
      - Watchtower v. Village of Stratton (2002) - Ban on door to door solicitation – need to register and get Mayor’s permission – too broad and vague
      - But - Cox v. New Hampshire (1941) – parade need permit; only denied if conflict – Ok - notice - TPM
      - City of Lakewood v. Plain Dealer (1988) – mayor’s permission for news racks – bad – no standards;
      - Saia v. New York (1948) – permit for sound amplification – bad - unbridled discretion;
      - Kunz v. New York (1951) – religious meeting on street – need permit – again bad – unfettered discretion;
      - Forsyth County v. National Movement (1992) – fee for demonstration – bad no standards
  - - - illegal activities; false and misleading; risk of deception
    - - (1) Whether the expression is protected by the first amendment -- it must at least concern lawful activity and not be misleading;
      - (2) Is there a substantial governmental interest [Intermediate];
      - (3) Does the regulation directly advance the governmental interest asserted;
      - (4) Is it more extensive than necessary to serve that interest [proportionality; non-excessive][like narrow tailoring]
      - Thus, the Central Hudson test for commercial speech is:
    - - Truthful non-misleading ads for attorneys protected [Bates]
        
        Ohralik v. Ohio State Bar (1978) - in-person solicitation is barred - inherently risks deception but if political speech - Ok - strict scrutiny - In re Primus (1978)
    - - not bar in person solicitation by accountants - Edenfeld v. Fane (1993) - - no evidence of abuse - unlike lawyers “not professionally trained in persuasion”
    - - For Sale Signs - Linmark v. Township of Willigford (1977) - municipal ordinance - ban “for sale” signs in order to avoid or stop “white flight” - intermediate scrutiny [commercial speech] – no “substantial justification - not sufficient evidence of “panic selling” - where to live and raise families – Right to information
      - Alcohol - Rubin v. Coors Brewing (1995) - prohibit show amount of alcohol on beer bottle - substantial basis - “prevent strength wars” - but not narrow enough - could directly limit alcohol content; broader marketing ban
        
        44 LiquorMart v. Rhode Island (1996) – law prohibits price ads on liquor –? show significantly reduce alcohol consumption - other alternatives to lessen alcohol use - direct regulation; taxation - “not reasonable fit”
      - Tobacco - Lorillard Tobacco v. Reilly (2001) - Cigars and smokeless tobacco - No ads within 1,000 feet of school or playground - is commercial speech – semi-strict scrutiny - not reasonable - cover almost all of Boston - not all children below 5 feet
      - Gambling - old Posadias v Puerto Rico Associates for Tourism Company (1986) - upheld prohibition on casino advertisements in Puerto Rico
      - Now - Greater New Orleans Broadcasting v. United States (1999) - federal law ban ads by casinos – any exceptions [Native American; state run lotteries] -not narrowly tailored to achieve its interests
      - Expressions Hair Design v. Schneiderman (2017)
        
        Credit Card - Some merchants want to charge less if use cash and publish
        
        NY - bans surcharge – discounts allowed - primary price as credit or cash
        
        N.Y. Court of Appeals - only a price regulation – not covered by 1st Amendment - regulates pure conduct
        
        Is how merchants can communicate their price - and so regulates speech
        
        Remand back for a commercial speech analysis
  - - - a reasonable person not tell what prohibited - fairness - need guidelines - speech not want to chill
    - - reasonable person would not know what constitutes annoying -- overly vague -- too much discretion
    - - A law is unconstitutionally overbroad if it regulates substantially more speech than the Constitution allows to be regulated, and a person to whom the law constitutionally can be applied can argue that it would be unconstitutional as applied to others.
        Overbroad determinations only on on its face determinations.
    - - Statute - felony for registered sex offender to gain access to certain web-sites where sites have children [e.g. Facebook; Twitter]
      - Posts on Facebook – things like thank traffic ticket dismissed
      - Even if Content neutral – intermediate scrutiny – still bad – not “narrowly tailored”
      - Overbroad – could include “Amazon”; WbMd
  - - - Public Official [later also Public Figure]
      - Official Conduct [later “Matter of Public Concern”]
      - Clear and Convincing Evidence
      - Statement – False [Burden on Challenger]
      - Actual Malice – knowledge that false or reckless disregard of Truth
      - If the plaintiff is a public official or running for public office, the plaintiff can recover for defamation only by proving with clear and convincing evidence the falsity of the statements and actual malice. Actual malice means that the defendant knew that the statement was false or acted with reckless disregard of the truth. New York Times Co. v. Sullivan is the seminal case in this area.
  - - - National Endowment for the Arts v. Findley (1998) –
        
        Government as Actor and not Regulator
        
        More flexibility – can pick and choose what fund –
        
        Here must consider standards of decency for Arts Grants - not “content” or “viewpoint” [ MHB - ?]
      - Pleasant Grove City v. Summum (2009) - Want heathen monument next to 10 Commandments in public park - denied
        
        “government speech” – can “pick and choose” what in park - May still be “Establishment Clause” issues
      - Walker v. Thompson (2015)
        
        Specialty license plates - state bar confederate flag - tag is government speech - not have to be content neutral -
  - - - Conduct as “Pure Speech” – Symbol itself is Message - Strict Scrutiny
      - Conduct as to Item with Other Purposes Than Just Message – Semi-Strict Scrutiny
    - - Test – “a government regulation is sufficiently justified if”
        
        [1] it is within the constitutional power of the government;
        
        [2] if it furthers important or substantial government interest;
        
        [3] if governmental interest is unrelated to the suppression of free expression and
        
        [4] if the incidental restriction or alleged first amendment freedoms is no greater than is essential to the furtherance of that interest.
      - If conduct contains both speech and nonspeech elements, an important or substantial governmental interest in regulating the nonspeech element may justify incidental limitations on the protected speech if (1) the regulation is within the constitutional power of the government, (2) the regulation furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression, and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
  - - - Bad – “content based” – Viewpoint Discrimination - CGI – not shown
      - Not “Government speech” – merely because is trademark
    - - Trademark Act - bar registrations of “immoral or scandalous trademarks - bad - disfavors certain ideas – here Clothing Line – trademark - FUCT
      - PTO – shocking; vs decency; vulgar – are standards applied; PTO Appellate Board – Highly offensive and vulgar - negative sexual connotations –
      - SCt. - Clearly - here viewpoint based - gives examples of previous things barred as scandalous or immoral and those allowed - - just not viewpoint neutral [content based]
      - Alito - concur - power to government can be exploited – need more clearly focused statute
      - Sottomayor - define scandalous language narrowly to obscene; vulgar, profane - save the statute - here does involve government so even if not seen as endorsing - is Government involvement
      - Roberts - concur and dissent – Here “immoral too broad” – so bad – but “scandalous could have had a more narrow construction - be able to limit scandalous to profane; vulgar or obscene –
      - Breyer – agree with Sottomayor – could limit “scandalous” to vulgar, obscene – not like to put types of speech into categories – like viewpoint discrimination or commercial speech or government speech - be more flexible as “rules of thumb
    - - facial- might be ok for me but on its face bad
      - applied-- looking solely at individual case
  - - - Outdoor signs - 3 types exempted - directional signs exemption most stringent
      - Church want to advertise Sunday services - vs ordinance
      - restriction on speech that is content-based on its face is subject to strict scrutiny regardless of the government’s benign motive or justification.
    - - Ban on robocalls – government debt exception
      - 3 Justices – strict scrutiny; 3 Justices – intermediate scrutiny
      - Content based – even though not viewpoint based
      - Not just incident to regulation [dissent –cf labeling] – but speech based exception
  - - - Different types of forums: public forums [T,P,M] ; limited public forums [designated public forums][T,P,M]; non-public forums [Limited Use Government Property]
      - Truly private property - no state action [remember - mall cases] – No 1st Amendment Speech Rights
      - Special Locations/Situations - deference to government control [military; prisons; schools; government employee]
    - - Designated Public Forums – Place non-public forum into public forum use - then treat same as historic public forum - School Building Use – Widmar (1981); Good News Club (2001)
    - - Perry v. Educational Association (1983) - School Mailboxes - Not a public forum
      - Allow Reasonable Viewpoint Neutral Restrictions Use by Certain Types of Groups or Certain Topics - Christian Legal Society v Martinez (2010) - OK - Non-discrimination policy for all student groups - for money, access and recognition
    - - (1) content neutral - viewpoint or subject matter - or need strict scrutiny [CGI/NT][picketing cases Labor allowed - so bad];
      - (2) reasonable time, place and manner - and adequate alternatives [Krishna - booth at fairs; sound restrictions at rock concert]
      - (3) licensing or permit - clear criteria - procedural safeguards [speed and judicial review; almost no discretion]
      - (4) narrowly tailored [distribute campaign literature; abortion picketing - CGI - but limits to distance]
    - - Student send snapshot [off-campus]- - vulgar [finger]; words – not get varsity cheerleading – distributed by others
      - Skepticism - as to limits of off-campus control – if no “substantial disruption”
    - - Matter of Public Concern
      - Speech rights not outweighed by needs of Government [efficiency] - not strict scrutiny – mere weighing
- - - - Equal Protection “Aspect” - Federal Government
        
        All Laws Classify
        
        Types
        
        Rights
        
        Justification
        
        Means
    - - Footnote 4 - “Review of statutes directed at particular religious . . .or racial . . . minorities; whether discrete and insular minorities may be a special condition . . . which may call for a corresponding more searching judicial inquiry.
      - Some classifications so important – any legislation or rule or regulation or other government behavior must involving classifications –
      - Be strictly scrutinized - which means:
        
        (A) A high governmental [compelling/ substantial] interest [as compared to rational or reasonable basis];
        
        (B) Any restriction is to be least restrictive alternative [most serious] or narrowly tailored as possible [as compared to rationally related]
      - Types of classifications – depends on “immutability”; history; self-protection ability
      - Strict scrutiny – compelling interest; narrow tailoring -
        
        later for some - least restrictive alternative [tougher test]
      - Intermediate scrutiny – substantially related; substantial interest [something less than compelling or least restrictive]
      - Rational basis – any conceivable purpose - One step at a time; deferential
      - Rational Basis - Plus – or With Teeth – legitimate government purpose; reasonable connection to problem - less deferential
  - - - 13th - No Slavery [? Badge of Slavery - rejected]
      - 15th - Right to Vote
      - 14th - Due Process; Equal Protection; Privileges and Immunities
    - - Not vs 13th Amendment - No “ Badge of slavery”]
      - Separate but equal – not imply inferiority of either race - - police power of state
    - - Importance of Education [MHB – note not “fundamental right”]
      - Separate education facilities are inherently unequal - vs equal protection of the laws guaranteed by the Fourteenth Amendment.
    - - Interest –here “war powers” – imminent danger and sabotage
    - - Federal Government - “Due Process”
      - Public Beaches & Bathhouses
      - Public Buses
      - Courtroom Seating
      - Public Restaurants
      - Pena-Rodriguez v. Colorado (2017) [6 to 3]
        
        Sanctity of Jury Deliberations vs. Racism; juror had clear anti-Hispanic bias
        
        Court carves out exemption from non challenge verdict rule for overt and proveable racism – duty to confront racial animus – especially in jury system
      - ? Ever be Compelling Interests
        
        Johnson v. California (2005) - racially segregated prison areas - may be compelling - but not narrowly tailored
    - - On its Face- Clear Discrimination by Race – Strict Scrutiny
      - On its Face- Race Neutral – Must show
        
        discriminatory purpose- directly or indirectly via circumstantial evidence is sufficient; fact finding at lower court level significant
        
        discriminatory impact /effect
        
        Discriminatory Purpose not enough; must show discriminatory effect
      - statutory standards (civil rights act, TITLE VII ) can remove the need for discriminatory purpose; discriminatory impact alone can be enough.
      - Court order - might provide that impact enough
      - Washington v. Davis (1976) - Test for admission to police department – must show not just discriminatory impact but also discriminatory purpose
      - McClesky v. Kemp (1987) – Death Penalty Statistics – Need discriminatory purpose - must show process discriminatory because of actions
      - Personnel Administrator v. Feeney (1979) – hiring preference to veterans; no discriminatory purpose - enacted “in spite of and not “because of” discriminatory impact [on women here]
      - Palmer v. Thompson (1971) – swimming pools closed to avoid desegregation – discriminatory purpose not enough - must show discriminatory impact – not here - closed to both races
    - - Ordinarily – Remedy is to Immediately Fix Problem – invalidate law; issue injunctive relief - Not True in Racial Desegregation
      - Brown v. Board of Education [Brown II] (1955)
        
        “good faith” by school authorities – “prompt and reasonable start to full compliance”
        
        District courts – take such action “as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed . . .
      - Massive Resistance- Cooper v. Aaron (1958) – federal courts “supreme in execution of the law”
      - Finally - Stop Avoidance Techniques - Green v. County School Board (1969) – meaningful and immediate progress”
        
        Impact of 1964 Civil Rights Act; Title II - ESEA
      - Judicial Remedies Options -
        
        Swann v. Charlotte-Mecklenberg Board (1971) – broad judicial equity power
        
        Use racial quotas
        
        Eliminate one race schools
        
        Rearrange school districts
        
        Order busing
        
        Court uses phrase “affirmative action”
      - Milliken v. Bradley (1974) - not order desegregation that affects separate even if adjacent school district
      - Swann - Court also indicates once “full compliance” and districts “unitary” – no longer judicial involvement
      - Board of Education v. Dowell (1991) – Oklahoma City – eliminated dual system – complied in good faith – now unitary system – end District Court oversight – “vestiges of past discrimination ended to the extent practicable”
      - Freeman v. Pitts (1992) - end oversight of part that comply ; Missouri v. Jenkins (1995) - once segregation order complied with - end to oversight
    - - Premise - Remedy for Past /Societal Discrimination - Not Justification for Explicit Consideration of Race
      - Parents Involved v. Seattle School District (2007) – student assignments – race as a tie breaker – strict scrutiny review
        
        remedy for past discrimination not compelling interest; racial imbalance not unconstitutional unless based on illegal segregation
        
        Way to stop discrimination on the basis of race is to stop discriminating on the basis of race
      - Regents v. Bakke (1978) – Medical School
        
        Powell – then 4 to 4
        
        strict scrutiny
        
        diversity as compelling interest
        
        narrow tailoring – no quotas; “take into account”
        
        The Supreme Court first considered affirmative action in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). The University of California-Davis Medical School had set aside 16 slots in an entering class of 100 for minority students. The Supreme Court, in a five-to-four decision, without a majority opinion, invalidated the set-aside but ruled that colleges and universities may use race as one factor in admissions decisions to benefit minorities and enhance diversity.
      - Wygant v. Jackson Board of Education (1986) - “Societal discrimination alone is not sufficient to justify a racial classification.”
      - Grutter v. Bollinger; Gratz v. Bollinger (2003) - Michigan
        
        Gratz - Michigan – Undergraduate – points added – bad
        
        Grutter - Law – Diversity - additional factor to be “taken into account” O’Connor – 5 to 4 – upheld
        
        “We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”
        
        TAKE RACE INTO CONSIDERATION AS A FACTOR= OK
      - Fisher v. University of Texas – Austin (2013) - Race as “a factor” in admissions – goal is “critical mass”
        
        Kennedy – race is inherently suspect class; remand to apply strict scrutiny test of Grutter and Bakke
        
        Government bears the burden to prove reasons legitimate
        
        Strict scrutiny must not be strict in theory but feeble in fact.
      - Fisher v. University of Texas [Fisher 2][2016]
        
        Kennedy [Ginsburg; Breyer; Sottomayor] [Kagan - recuse - ? Really 5 votes]
        
        Upheld - post-remand – Kennedy - Seems to change position of Court
        
        CGI - as to educational benefits - deference to academics
        
        Narrow tailoring - school met burden – no “workable” race-neutral alternatives
        
        "all possible race neutral alternatives" must be used before race can be taken into account; no deference for good faith efforts
        
        top 10% in high school rule for admissions for 75% of the university population
        
        25% remaining pool is for everyone based on number of factors including race
      - Schuette v. Coalition (2014) - voter initiative bars affirmative action upheld - majority says is a valid non-discriminatory; deference to the initiative process
      - Election Districts & Race - Same Concepts
        
        Court Authority vs Voluntary Action
        
        Racial gerrymandering – vs Race - need show intentional
      - Bethune-Hill v. Virginia State Board of Elections (2017)
        
        Kennedy – Virginia use race for new lines in 12 districts - to avoid retrogression from Voting Rights Act
        
        Burden on plaintiff alleging racial gerrymandering to show - race a predominant factor –
        
        Remand for strict scrutiny review by District Court
        
        One district - lower court found was racial basis – here uphold
        
        CGI & narrow tailoring - compliance with VRA
      - Cooper v. Harris (2017)(Kagan)
        
        state not use race as predominant factor in creating Congressional District lines unless has compelling reason –
        
        lower court found that North Carolina violate that bar when created two districts - majority black - deferential review to lower court
        
        Racial gerrymanders - bad -two step analysis
        
        show race was predominant factor motivating decision to put group into a district - subordinated other factors
        
        (2) if shown - then strict scrutiny - CGI/NT - and CGI can be VRA
        
        Here not justify under VRA
  - - - Separate from National Origins=Race/Strict Scrutiny
      - Preemption Might Apply – Power of Congress – Immigration - bar Inconsistent State Rules
    - - Graham v. Richardson (1971) – welfare benefits - not deny civil service jobs to aliens - Not bar from becoming lawyers; engineers; limit college aid
      - Exception – “democracy” – “heart of representative government”; “important policy responsibilities” then Rational Basis - police (Foley v. Connelie - 1978); judges, school teachers, probation officers
    - - Children denied enrollment in public schools
      - “innocent children” – “important public benefit” – “pivotal role of education”
      - Rational basis review – but still need “substantial goal”; “substantial state interest” [MHB – Rational Basis +]
    - - State= strict scrutiny
      - Federal (congress and NOT agencies) = rational basis
  - - - Deference to Legislature
      - “Any conceivable purpose”
      - Burden of Proof
      - “Police Power”
      - Step by Step
    - - Under
        
        New Orleans v. Dukes (1976) – push carts exemption - grandfathering
        
        Federal Communications v. Beach (1993) – Cable Act exempt apartment complexes – “legislative choice”
      - Over
        
        New York City Transit v. Beazer (1979) – bar to drug users, includes methadone users-still OK
    - - Romer v. Evans (1996) - referendum overturn ordinances ban discrimination based on sexual orientation - no “legitimate basis” - “animus” [? Hard rational basis; Rational Basis - +]
      - U.S. Department of Agriculture v. Moreno (1973) – food stamps - not to unrelated people in same household – no real reasonable relationship to nutrition goal – not justified by fraud argument
      - City of Cleburne v. Cleburne Living Center (1985) – no group home for mentally retarded – rejects “suspect or semi-suspect” – still not any legitimate reason – arbitrary”
  - - - Laws restricting marriage to heterosexual couples are unconstitutional
      - Premise - “Constitution promises liberty to all within its reach”
      - Premise - “transcendent importance of marriage”- sacred to religious and unique fulfillment to all
      - Due Process Clause - right to make personal
      - choices - privacy - bars restrictions on marriage
      - Lays out bases for decision
        
        Right to personal choice
        
        Fundamental right to marry
        
        Protection of children and family - stigma
        
        Marriage keystone of social order - “constellation of benefits”
      - Also “equality” - equal protection apply as well
      - Democracy important - but outweighed by fundamental rights - not wait for legislative action
      - Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples.
        Marriage as a fundamental right; discrimination in that right is a violation of due process
    - - Arkansas law requires name of married male spouse on birth certificate
      - State Supreme Court –issue is not marriage but “biological relationship”
      - Here anonymous sperm donor – two same sex married [women ] couples
      - Unconstitutional – Denies access to “constellation of benefits linked to marriage”
  - - - Bradwell (1862) – practice of law – “paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general situation of things . . . . “
    - - Oklahoma statute prohibited the sale of 3.2 percent beer to males under 21; and to females under 18 - bad - “intermediate scrutiny” –
      - “Classification by gender must serve a important governmental objectives and must be substantially related to achievement of these objectives.”
      - Reject – over-broad generalizations and stereotypes
      - United States v. Virginia (1996) - Ginsburg - Military Academy vs. Non-military
      - "Parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification" for that action
    - - Orr v. Orr (1979) – wife not have to pay alimony; bad - “stereotype of economically dependent women” -
      - Mississippi University v. Hogan (1982) – excludes males from nursing school – no “exceedingly persuasive justification” - - stereotyping
      - But - Rostker v. Goldberg (1981)[Rehnquist] – no draft registration for females – relies on Congress' authority over national defense and military affairs - Congress great deference.“
    - - Nguyen v. INS (2001) [5 to 4] - Kennedy - citizenship for child born outside of US based on mother – and father only if proof of biological connection - proof of biological connection harder when is father; not “stereotype” - that mother child connection at birth
    - - Child born abroad – father a citizen and mother not – parents must have been in the United States for 10 years for child to be considered a citizen
      - Child born abroad – mother a citizen and father not – 10 year period waived - child deemed a citizen at birth
      - S.Ct. - -unconstitutional gender discrimination
      - Remedy – require 10 years if either parent a non-citizen
    - - Califano v. Webster (1977) [per curiam] - social security benefits – benefit women – middle-level scrutiny – to redress disparate treatment of women
      - Schlessinger v. Ballard (1975) – longer period for women to be allowed to stay in Navy without promotion – women historically less opportunity
- - - - The Court has held that the government may punish membership only if it proves that a person actively affiliated with a group, knowing of its illegal objectives, and with the specific intent to further those objectives.
    - - The Supreme Court has held that the government may require disclosure of membership, where disclosure will chill association, only if it meets strict scrutiny.
  - - - State Human Rights Act – not discriminate based on gender - ? vs right of association and privacy
      - Not “intimate association;” not really expressive association – broad diverse group and if only expression is discrimination – not legitimate
    - - Bar to gays as scout leaders or members – message – “morally straight” – freedom of expressive association – outweigh state non-discrimination statute
- - - - Richmond Newspapers v. Virginia (1980) – Public Trials – right of people and press to observe – Media same right [but No special right] as public
- - - - Loving v. Virginia - 1967 – interracial marriage – both privacy and liberty [as part of due process] equal protection – compelling interest/narrow tailoring –
      - Marriage is “one of basic civil rights of man”
    - - Laws restricting marriage to heterosexual couples are unconstitutional
      - Premise - “Constitution promises liberty to all”
      - Premise - “transcendent importance of marriage”- sacred to religious and unique fulfillment to all
      - Due Process Clause - right to make personal choices - privacy - bars restrictions on marriage
    - - Need “substantial” reason to terminate -
      - Stanley v. Georgia – 1972 – unwed mother die – law says kids become wards of state – bad - not narrow tailoring – can separate out neglectful parents
      - Michael H v. Gerald D – 1989 [plurality] - Married and child presumed to be their child; other wants to prove is real father for visitation rights –
      - – family unit presumption of legitimacy
    - - Moore v. City of Cleveland – 1977 –
      - Occupancy to single family unit – but defines family – too narrowly – vs due process liberty interest in family life
      - Note – so not to unrelated individuals – Village of Bella Terre – 1964
    - - Meyer v. Nebraska – 1923 – statute schools must teach in English – here interference with rights of parent to control education and upbringing – not even pass “rational basis” test
      - Pierce v. Society of Sisters – 1925 – must send child to public school – vs liberty of parents to control education
      - Wisconsin v Yoder – 1972 –Amish - child no schooling after 14 vs state law set 16 – “Liberty” and Free Exercise
      - Parham – 1979 – parents can send child to institution – no notice and hearing –assume parents have best interests of child – Dissent – liberty of child
      - Troxel v. Granville – 2000 – grandparents no required visitation rights – here liberty interest in favor of mother – no compelling reason to interfere
  - - - Right to Procreate
      - Right to Contraceptives
      - Right to Abortion
      - “Equal Protection” & “Spending Clause”
    - - Skinner v. Oklahoma – 1942 - “basic civil right” – to have offspring – introduction of “strict scrutiny” idea
    - - Strict scrutiny – compelling interest and narrow tailoring
    - - Articulate “right to privacy” – “Zone of Privacy
      - Start with Married couples – “Family Rights - Expand to any couple – in Eistenstadt v. Baird – 1972
    - - Specifically adopt Substantive Due Process Analysis - strict scrutiny; compelling interest and narrow tailoring
    - - Roe v. Wade – 1973
        
        Review of history – Medical Ethics – Religious Attitudes - Puts in right of privacy – “liberty” component of due process - Explicitly states standard of review – compelling interest and narrow tailoring
        
        Trimester – 1st – no regulation; 2nd – regulation to protect maternal health; 3rd – “use “viability” - full regulation and even banning – except to protect life and health of mother
      - Planned Parenthood v. Casey – 1992 – O’Connor
        
        Uphold “right to abortion” – substantive due process –precedent – But State can have “preference for childbirth”
        
        Change standard of review – strict scrutiny to “undue burden” or “substantial obstacle”
        
        Test is now only “viability” – no trimester
        
        Must provide exceptions even after viability for “life and health of mother”
      - 1.“Informed Consent” of Woman - OK -
      - 24 hour waiting period – OK
      - Informed consent of one parent for minor – but with judicial bypass – OK –
      - Notice to [and/or Consent] of Spouse – bad Undue Burden -
      - Reporting & Record-keeping requirements
      - Medical Emergency – limited to Physical Harm
      - Can Require being performed by doctors; in hospital
      - Ban “partial birth” abortions [“intact dilation and extraction”]– pre and post viability – but still issue is “physical health” of woman - OK –
      - Not have to provide funds for contraception or abortion – even if provide funds for birth –even without health of mother exception [now seems also life of mother exception as well]
    - - Looks at “undue burden test” - defines from Casey - bad if “purpose or effect is to place substantial burden” - pre-viability
      - Requirement to hold admitting privileges within thirty miles of where perform abortions
      - supposedly to protect against complications - but procedure is safe - no case of better treatment
        
        if requirement - and even worse - docs not get admitting - as number of cases low as safe no need go to hospital
      - District Court - substantial findings that no factual basis that relate to health; would dramatically decrease availability of abortions and not meet demand; abortions safe without new rules and not get better care if apply new rule - found undue burden
      - Court of Appeals reversed - District Court substituted judgement for legislature
      - SCt - legitimate interest to assure safety - but not do so in way that is substantial obstacle - and if does so is “undue burden”
    - - Reaffirms - Whole Woman’s Health v. Hellersedt (2017) [ [Breyer -with Ginsburg/Sotomayor/Kagen/Kennedy]
        
        Statute almost identical to Hellerstedt – admitting privileges
        
        Looks at “undue burden test” - defines from Casey - bad if “purpose or effect is to place substantial burden” - pre-viability
        
        Findings here – procedures at centers extremely safe and this is substantial obstacle
    - - Indiana Law - require special disposition of fetal remains and also ban selective abortions based on sex, race, or disability
      - Disposal - not allow incineration - but allowed cremations or burial - mother decide
      - per curium - legitimate interest is how disposed – OK - rational basis review
      - Lower court knocked out provision that bar selective abortions - Supreme Court - not discuss -
      - Thomas - concur - would also allow law that barred selective abortions - was to prevent eugenics
      - Ginsburg- rational basis - not test – is at least undue burden and should be Strict Scrutiny
    - - Condition to obtain federal funds – Doctors not able to even discuss abortion – not refer for abortion; not lobby or promote or advocate for any type of abortion as part of family planning
      - “[W]hen government appropriates public funds to establish a program it is entitled to define the limits of that program”
      - Dissents – “Viewpoint based discrimination” – vs 1st Amendment
    - - No absolute right
      - Balance is “public interest vs private interest”
        
        can require vaccinations [1905]
        
        Can require Quarantine
      - Totally Private Interest – “liberty interest”
      - Harper – 1990 – right to be free from administration of antipsychotic drugs – but “due process” is issue - not bar - notice and hearing
    - - Cruzan v. Director – 1990 - Assume “competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment” [concept of “informed consent”] - Here – nutrition and hydration –
        State can set burden of proof – clear and convincing evidence that “informed consent”
    - - Washington v. Glucksberg – 1997
      - State – crime of aid or cause suicide – not unconstitutional - not “fundamental right” – so only rational basis review
      - here to protect vulnerable groups; still allow to get medicine to alleviate pain – even if death
      - Vacco v. Quill – 1997 – law against assisted suicide not vs equal protection [can not stop life sustaining but doctor can aide by not add life sustaining]
    - - Seems to be no Constitutional right to limit government’s right to collect information about you
      - Whalen v. Roe – 1977 – require listing of those who get certain drugs – computerized data bank - - no serious threat to “zone of privacy” – not “unreasonable” – that is the standard – great discretion to legislature
      - Notes
        
        Bank Secrecy Act – financial transactions of certain amount
        
        Background Checks
      - What about – other aspects of autonomy
        
        Picture on shoplifter’s handbill – ok
        
        Notification of Community – “Sexual Predator Laws”
        
        Limits on Length of hair – police officer; school attendants
        
        Dress Codes – public schools and universities
    - - No fundamental right to education
      - San Antonio School District v. Rodriguez – 1973 – funding formula for public schools – not withstand strict scrutiny – but that not test – is legitimate and rational – and wealth not suspect class –
      - Plyler v Doe – 1982 – education still important – statute that denied benefits to undocumented children - bad
  - - - Specific Rights in Constitution – Speech; Religion; Voting – Text of Constitution
      - Rights Implied in Constitution – Tie to Other Rights – Privacy – History and Tradition
      - Rights Related to Fairness – Procedural Due Process
  - - - Hunter - 1985 - if show bar because of racial discriminatory purpose - restriction is bad
    - - Crawford v. Marion County Election Board (2008)
      - Indiana – government issued photo identification [with specific exceptions] – free of charge
      - Are sufficient interests to require – voter fraud; modernization - voter confidence in system
      - Minor Burdens – mere inconvenience and money – exceptions for difficult areas [provisional ballots]
      - On its face challenge – petitioners “heavy burden of persuasion”
      - Not show “excessively burdensome” on any class of voters
    - - Reynolds v. Sims (1963) - Basic Premise – One person – one vote
      - Wesberry v. Sanders (1964) - congressional districting plans - test of substantial equality of population - Art. I, § 2
      - All forms of local governments - but lee way to state and local
        
        “Outrageousness”; “Good faith effort” - “substantial equality”
        
        Congressional Reapportionment – More strict
        
        Multi-member districting still allowed
        
        Special Districts [water] still allowed
        
        David v. Bandemer (1986); Veith v. Jubelier (2004) - Gerrymandering OK
      - Evenwel v. Abbot (2016) - Ginsburg
        
        Draw population for redistricting for Texas by total population or voter eligible - leaves to states - rational basis analysis
      - Arizona State Legislature v. Arizona Independent Redistricting Commn (2015) [5 to 4] - Arizona “initiative” create Redistricting Commission - to avoid partisan gerrymandering - and create state legislative districts and Congressional Districts - no challenge to state districts - state law governs and state law allows power of initiative
        
        State legislature challenge Congressional districting - “Legislative function” as defined by state law –and this can be by initiative
      - Race and Districting
        
        Challenge to racial gerrymandering - need show intentional - and provide alternative that better - Easley v. Cromartie (2001)
        
        Voting Rights Act - Shelby County v. Holder (2013) “pre-clearance” - no longer justified - end to intentional discrimination - vs 10th Amendment; 15th Amendment not Sufficient justification
- - - - unemployment compensation to be paid as fired for not working on Sabbath – no CGI
      - – not work in armaments factory – legitimate religious belief – enough – entitled to unemployment
    - - Wisconsin v. Yoder (1972) – compulsory school – Amish – allow leave at age 16 – work – “unduly burdens free exercise” – balancing
      - Majoritarian Definition of Accommodation
        
        Braunfeld (1961) - Sunday as Day of Rest – neither “endorsement” of religion nor “interference” with exercise of religion –
      - Concept of “Neutral Law” exception” – indirect burden”
        
        if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.
      - Now – fixed law – Employment Division v. Smith
        
        Employment Division v. Smith (1990)[Scalia]
        
        Defendants fired by private drug rehabilitation program for smoking peyote; seek unemployment benefits
        
        Individual's religious belief not excuse compliance with an otherwise valid law prohibiting conduct that the state is free to regulate [neutral law of general applicability principle].
        
        Once decide on this general rule - then all that is needed is rational basis - no need for strict scrutiny or compelling government interest as to restriction of religious practice.
        
        NEUTRAL LAW OF GENERAL APPLICABILITY --> RATIONAL BASIS
        
        OTHERWISE, STRICT SCRUTINY
      - Skepticism as to Employment Division increasing
        
        To – “Neutral Law” idea – CGI
        
        United States v. Lee (1982) – must pay social security tax
        
        Bob Jones University v. United States (1983) – not discriminate based on race
        
        Bowen v. Roy (1986) – must supply social security numbers for food stamps
        
        Goldman v. Weinberger (1986) - not wear head covering in Air Force – “deference to professional judgment of military”
        
        Church of Lukumi Babulu (1993) - attempt to stop a particular religious practice – not neutral - allow slaughtering for other purposes
    - - Cake from bakeshop – not to same sex couple –
      - actions by Commission show not neutral – hostility – so even under “neutral law of general applicability” principal from Smith – not win
      - [Dissent – not really hostile – read facts – just disagreement]
      - Breyer – should have just said law not allow this exception and that not be hostile
        
        also – compelled speech – this is an art and not just a general activity and so protected free speech [more from concurrence – but mentioned in primary opinion]
    - - Not certify Catholic Foster Case agency as not refer children to to Same Sex Couples
      - Roberts – not neutral as are exemptions and exceptions included in foster casre contract – so strict scuritny and here – interests not narrowly tailored – not put goals at risk
      - Barrett [with Kavanaugh and Breyer] – Concur - ? Continuation of Employment Division – neutral idea
      - Alito [with Thomas and Gorsuch] – also question validity of Employment Division
    - - Teachers at parochial schools – religion part of “mix” as to teaching – fired - ? Age/Cancer-disability –
      - Court - religion at core of mission - part of internal management and free exercise clause bar questioning by courts or government agency - church autonomy - titles not matter [“ministerial exception - Hosanna]
      - Concurrence - Thomas - with Gorsuch - courts should defer to religious organizations good faith claims” that is “ministerial”
      - Sottomayor - with Ginsburg - majority skews facts - Smith - churches and other religious organizations must comply with generally applicable laws
      - ministerial exception totally judge made and condones animus - wide potential for abuse
    - - Free Exercise Clause - to deny a generally available benefits solely because of religious identity - penalty on free exercise” - need state interest “of highest order” – Most exacting scrutiny”
    - - Scalia - dissent - is “tax on religion”
    - - Missouri Constitution bar giving of money to religious institutions
      - Church not able to receive money from grant program for playgrounds in day care and learning center –
      - Need state interest of highest order – here is discrimination – penalty – indirect coercion – not subsidy – right to compete for generally available funds
      - Dissent – giving money to religious institution directly - bad
    - - “Blaine Amendment” – no money to sectarian schools” –expand Trinity – not bar money even if for sectarian school that teaches religion discriminates based on religion – fails strict scrutiny test – goal here was anti-Catholic
      - Thomas – Establishment Clause not to states
      - Dissent – no case – knocked out whole statute
    - - Wants Injunction - California limits religious gatherings of more than three households – not neutral [is like Cuomo ] look at comparable allowances - strict scrutiny – are lesser restrictive measures – irreparable harm – not mooted if change rules as “remain under a constant threat” – “irreparable harm”
      - Roberts – dissent – would deny
      - Kagan, with Breyer & Sottomayor, dissenting – here neutral - denies gatherings of more than three households to secular and religious alike – not compare to hardware stores and salons – apples and watermelons
      - At homes – likely to be there longer; smaller and less ventilation; social distancing and mask wearing less like likely
      - if any comparable activity is treated more favorably then religious institutions, then neutral law of general applicability does not apply and strict scrutiny does apply.... any evidence of secular being treated worse as well does not change this determination
    - - NY Executive Order classified gatherings by risk – challenge by Orthodox Jews and Catholics - - not neutral – picks on these groups for especially harsh treatments – compares to business; , plants, etc [though called “essential”]
      - Strict Scrutiny – are less restrictive rules [narrow tailoring]
      - Roberts – dissent – limits removed – no case; Breyer – with Sottomayor and Kagan, dissenting – no case – if change back - can consider then – also must give discretion to elected officials – where medical and scientific uncertainty
      - Sottomayor – with Kagan, dissenting – is extraordinary relief – really here religious institutions given specialized protection – preference – look at categories
    - - Religious Freedom Restoration Act (1993) [RFRA]- restore - strict scrutiny if substantial burden
      - City of Boerne v. Flores (1997) - Not apply to States - 10th Amendment; scope of 14th Amendment
      - But can apply to federal government - Gonzales v. O Centro (2006) [use of sacramental tea]
    - - RFRA Review – pay for contraceptive devices - -
      - Compelling interest/least restrictive means
        
        (1) Applies to For Profit Entities - are “persons”
        
        (2)Sincere beliefs
      - RLUIPA Religious Land Use and Institutional Persons Act (2000) - Strict scrutiny - prisons and land use
  - - - 1.Wall of Separation - Jefferson - Strict Separation - to protect religious liberty
      - Neutrality - not favor religion over secularism or one religion over another
      - 3Endorsement - ? Same as Neutrality - not directly or symbolically endorse religion - “Reasonable Person” test
      - 4.Accommodation/Coercion - must accept and accommodate existence of religion in society - only bar if coerce religious participation -
    - - Salary Supplements for parochial school teachers - of secular subject - and money for texts - records - kept and review of expenditures - “massive entanglement” vs Establishment Clause
      - (1) Statute must have a secular legislative purpose;
      - (2) Its principal or primary effect must be one that neither advances nor inhibits religions [is there a de minimis rule] and
      - (3) The state must not foster an excessive entanglement with religion.
      - ? Still good law – coercion/neutrality seems to be test
    - - Larson (1982) - tax on charities only to those where membership dues more than ½ of support - bad - is denominational preference
      - Kiryas Joel (1994) - creation of Hasidic public school district - bad It delegates discretionary authority of a public school to a group defined as a religious community.
    - - Stone v. Graham (1980) - must post 10 commandments in every classroom - no secular legislative purpose
      - Wallace v. Jaffree (1985) - one minute for silent prayer or meditation - here legislative history - no secular purpose
      - Edwards v. Aguillard (1987) - require teaching of “creation science” - no secular purpose - primary purpose was to endorse a particular religious doctrine
      - McGowan v. Maryland (1961) - must close on Sundays - religious origin but purpose uniform day of rest [MHB - ?]
    - - Estate of Thornton v. Caldor (1985) - law - no employer require work on Sunday - favored one religion
      - But - Presiding Bishop [Mormon] v. Amos (1987) - prohibition vs hiring based on religion - exemption for religious organizations - ok - purpose was to minimize government interference in religious practices
      - Hosana-Tabor (2012) - exempt ministers from EEOC Rules - [? Bob Jones] - fire to void paying medical care – ok -Overlap - Establishment Clause - not get into internal affairs of church
    - - Old- not pay parochial school teachers salaries - bad - had to monitor
      - Now – Government Funding OK - Agostini v. Felton (1997) - seems to reject entanglement theory - public school teachers can provide remedial education in parochial schools - - excessive entanglement” - really “primary effect”
      - Vouchers
        
        Zelman v. Harris (2002) - money to be used by students for private schools - and some money to public - “choice” by students - “neutral program”
  - - - U.S. Const. Amend. 1
    - - U.S. Const., Article VI, cl. 3
    - - neutrality vs accommodation
    - - Separation of Church and state as Compelling Interest - ?
    - - Accommodation [Free Exercise]
      - Custom & Tradition [Prayers]
      - Funding
    - - From Selective Service Cases – Pete Seeger (1965); Muhammed Ali (1971)– “sincerely held religious belief” – not have to be theistic; can be personal
  - - - Sante Fe Independent School District v. Doe (2000)
        
        Prayer over pubic address system - before each football game - by elected student chaplain - as here student lead prayer -bad
        
        Not private speech - is authorized by government [school] - ? elected - means never minority
        
        Message — outsiders vs insiders - almost “coercive” -
    - - McCreary County v. ACLU (2005) (Souter)
        
        Posting of 10 Commandment - Courthouse Walls - purpose was to “publicly acknowledge God” [cf Stone v. Graham (1980) - 10 Commandments in public classroom bad] - no secular legislative purpose - not “neutral”
      - Compare Van Orden v. Perry (2005)
        
        10 Commandments - Texas State Grounds – number of other religious symbols present - “heritage” not coercion
      - American Legion v. American Humanist Asstn (2020)
        Alito
        
        [Majority] Peace Cross as tribute to 49 area soldiers – since 1925 – on Federal Land – 4th Circuit – held unconstitutional – reversed – look to historical context
        
        Aim - recognize grief at loss and foster society where all faiths can live harmoniously
        
        Cross Symbol has both religious and secular meaning [Blue Cross; Red Cross; Johnson and Johnson products]
        
        Image of row of white crosses – symbol - horror of war
        
        Here – 32 foot Latin Cross – “Valor; Endurance; Courage; Devotion” at base
        
        There for over 90 years
        
        Test for Establishment Clause – “reasonable observer” see as “endorsement”
        
        Presumption of Constitutionality for existing monuments as compared to erecting new ones
        
        Not strictly apply Lemon test – look to history and case by case
        
        Religious symbol but also took on secular meaning – now part of community and to all wars
        
        Breyer [with Kagan] Concurrence –
        
        No simple formula – case by case – liberty and tolerance
        
        Here not government attempt to foster religious sect or religion over non-religion
        
        But believe not adopt a pure “history and tradition” – could be bad if show discriminatory intent
        
        Kavanaugh – concur – Lemon test – bad – here is not coercive – and history and tradition
        
        Not Mandate – on government land – just allows – are alternate [political] avenues of relief
        
        Kagan – concur in part – ok – test is “purpose and effect” – case by case – no broad rules – history as one factor
        
        Thomas – concur in judgement – Establishment clause - not apply to states
        
        Gorsuch [with Thomas] – Concur in judgement – real issue is standing
        
        Ginsburg [with Sotomayor] – dissent – Large Latin Cross on government land – just not neutral – foremost symbol of i faith – elevates Christianity over other faiths
        
        Simple solution – not on government land
    - - Marsh v. Chambers (1983) - Nebraska Legislature's practice of opening each legislative day with a prayer by a chaplain paid by the State - deeply embedded in the history and tradition
      - MHB - “Pledge of Allegiance”; Coins - In God We Trust” - “Historical Exception”
      - Now - Town of Greece v. Halloway (2014) [5 to 4]
        
        Small Town - Start with prayer - almost always Christian
        
        “Absent a pattern that over time denigrate, proselytize, or betray an impermissible government purpose, not allow challenge based solely on content of prayer” [not edit or supervise] - even sectarian prayer not vs 1st Amendment
    - - Pre-1960’s - no financial support for parochial schools; not allow public school release time for religious activities; no school prayer
      - Engel v. Vitale (1962) - - no mandated prayer
      - School District v. Schempp (1963) - no Bible reading mandate
      - Wallace v. Jeffree (1985) - no “moment of silence” - to allow prayer [no secular purpose]
      - Lee v. Weisman (1992) - [5 to 4] [Kennedy]chaplain led prayers at graduation - “psychological coercion”
      - Remember - Student Prayer - Speech - ? Equal Access vs Establishment Clause
      - Sante Fe Independent School District v. Doe (2000) Prayer over pubic address system before each football game - by elected student chaplain - bad - Not private speech - is authorized by government [school] - ? elected - means never minority
      - Curriculum
        
        Epperson v. Arkansas (1968) - State of Arkansas adopted an anti-evolution statute - bad - was religiously based prohibition - not neutral
        
        Edward v. Aguillard (1987) Louisiana statute prohibited the teaching of the theory of evolution in public schools unless accompanied by instruction in creation-science - unconstitutional - legislature's preeminent religious purpose in enacting the statute. As in Epperson, legislature passed the act to give preference to those religious groups which have as one of their tenets the creation of human kind by a divine creator.
      - Government Funding
        
        Public Schools - Wave
        
        1947 to 1997 - Line Drawing -support for students - but not for parochial elementary and secondary schools
        
        1997 - Agostini v. Felton - rejects entanglement - need show government “participates” or “endorses” or “indoctrinates”
        
        Espinoza v Montana (2020) - Roberts
        
        State Constitution - “Blaine Amendment “- no aid to sectarian schools.
        
        State statute provides tuition tax credit to parents who send kids to private schools.
        
        Montana Supreme Court - said statute violates state constitution and knocks out whole statute
        
        Court - no Establishment Clause issue - only issue is whether violates free exercise clause – is barred by free exercise as discriminates based on religion
- - - - Lebron v. National Railroad – 1995 – Amtrak is a government corporation
      - City; County; Board of Education; Water District; USPS
    - - Public Function – nature of activity of private actor make it “state action” - “Depends” - Limited
        
        “traditionally and essentially exclusively reserved to the state”
        
        Not to Malls
        
        Not to Public Services
        
        Utilities – Jackson v. Metropolitan Edison – 1974 –not government activity; also not so entwined
        
        Yes to Voting – Terry v. Adams – 1953 – “Jaybird” Association – equivalent of primary
        
        Yes to Parks – like the “fire department or police department”- Evans v. Newton – 1966 – Whites only park bad - “public character of this park” – “regardless of who now has title under state law
      - Entanglement/Entwinement – private action so closely tied to government that is “state action”
        
        Use of Courts - Yes
        
        Regulatory Control - No
        
        Funding - No
        
        Direct Involvement of Government - ?