Con law II

Dred Scott v. Sandford

Held: 

A person whose ancestors were imported and sold as slaves cannot become a federal citizen.

Overruled by 14th amendment 

Missouri Compromise is unconstitutional 

Reasoning 

• Can be a state citizen

• Framers never meant to give black people citizenship

Fredrick Douglas

Thought leader against slavery– Const was anti-slavery

• Const is aspirational and based on equality 

• At the time of drafting, framers could not see beyond slavery and cultural institutions 

• Abolitionists just want const ideals to be adopted – they require abolition and that all people are equal 

Wong Kim Ark

Holding 

Wong Kim Ark was a citizen, his parents were not employed in a diplomatic or official capacity to China. 

Four exceptions to birthright citizenship

• Kids of ambassadors born in the US

• Native American nations (assuming independent) 

• Children of alien enemies in hostile occupation 

• Children born on foreign vessels (ex: a ship flying a different nation’s flag) 

Trump v. Barbara 

The Fourteenth Amendment’s Citizenship Clause guarantees citizenship at birth to every person born in the United States to parents who are unlawfully or temporarily present, because those children are “subject to the jurisdiction” of the United States within the meaning of that Clause.

they don’t fit one of the existing exceptions, so birthright

Equal protection basic framework

• Classification

  • Does the law treat groups of people differently? If yes? Great, equal protection analysis 

  • Have to be able to state the groups of people 

    • Ex: 16+, etc

• Scrutiny, what level?

  • Strict, intermediate, or rational basis? 

  • Aka how much deference to gov 

  • Just what level of scrutiny here based on classification

• Does gov meet scrutiny

Romer v. Evans

A state cannot constitutionally discriminate against homosexual or bisexual persons. 

rules/reasoning 

Example of rational review with bite 

Hierarchy of broad to narrow rules

• 14th

  • Rational basis 

    • What is a legitimate goal

      • Something permissible for the gov to do 

      • Sufficient factual context 

      • Cannot be bare desire to harm politically unpopular group – from Moreno  

    • Rational relationship

      • Limited scope 

      • How close is the problem to the solution 

      • “the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause”

Scalia and Thomas dissent

Carolene Products

Discrete and insular minorities (Carolene products) generally get strict scrutiny 

• Generally also immutable characteristics 

U.S. Dept of Ag v. Moreno

What framework

• Rational basis – anything else 

  • (doesn’t make judges super uncomfortable)

Rational basis

• Gov purpose

  • Feed people and prevent fraud 

• Not only animus 

• Conceivable purpose– preventing fraud 

• Relation between purpose of law and purpose of specific classification– no

  • Fraud and family living together are not rationally related to who you live with 

  • Fraud is not a large enough reason – not based in fact for the nexus 

  • No rationally related 

City of Cleburne, Tx v. Cleburne Living Center, Inc

can’t ban group home for disabled people– rational basis with bite. 

Korematsu v. U.S.

• Class

  • National origin/race – Japanese ancestry v everyone else 

  • Facially discriminatory 

• Scrutiny

  • Strict 

    • “Immedately suspect” “most rigid scrutiny" 

    • Standard

      • Compelling gov interest 

      • Classification is necessary to achieve that 

        • No less restrictive means 

        • Cannot do without classification 

Trump v. Hawaii

National security will override most, if not all things. Very differential on that 

• Classification

  • National origin

  • Religion (maybe?)

  • Not a facial ban, just bans on majority muslim countries 

    • Have to prove classification was discriminatory in effect and purpose 

• Scrutiny 

  • Strict (assuming discrimination impact and purpose) 

    • Ish, this is immigration so gets muddied. Worry about that later. For now, just ex 

  • Is there compelling purpose

    • National security 

  • Nexus

    • Mystery 

Loving v. Virginia 

• Race

  • Black folks can’t marry white folks 

  • Justification of the law from VA

    • No discrimination, everyone gets the same criminal punishment 

    • No one is disadvantaged specially, everyone disadvantaged equally 

• Why 14th issue

  • No actual gov purpose for this 

  • Even if not S.S, can do R.B.

    • Rational basis– rationally related to legit gov purpose 

• Scrutiny

  • Rational basis

    • Gov reason– “to preserve the racial integrity of its citizen” prevent "corruption of blood” “a mongrel breed of citizens,” and “the obliteration of racial pride,”-- RACISM 

    • This is straight animus and racism, gov has no right, no legit purpose 

      • Can’t do that 

      • No more interracial marriage ban

Plessy v. Ferguson 

Holding:

Separate but equal is fine

Classification

• Race

Scrutiny 

• They sure don’t use strict 

• All the gov deference – rational basis

  • 14th amendment did not contemplate this type of law being unconstitutional, society itself was based on segregation. 14th is not anti-caste 

  • Not a ton of law here, a lot of purpose 

  • Do talk police power of the states 

    • Ex: upheld interracial marriage bans before. So this is fine 

  • (hopefully) Unstated purpose (not just racism)– keep country together through Reconstruction 

  • Bad outcome, bad reasoning 

What if they had done due process:

• Hella racial facial classification

• Would not meet modern strict scrutiny these days

  • Maybe argument of national security to keep south from revolting 

  • But also like, racism isn’t a good purpose 

Brown v. Board of ed

• Holding: segregation in public schools violates equal protection. Separate schools are inherently unequal 

  • Prior cases– separate but equal – plessy cases

    • Examining the way things are unequal 

    • Not unequal without proof 

  • Brown

    • Separate is never equal (in public ed) 

    • Unanimous overrules plessy (at least for schools) 

• Equal protection framework in brown

  • Clear strict scrutiny, but they don’t super go into it

    • They say education is a very important thing gov does, segregation is only there for animus (stigma on black kids) (less treated as a purpose, more an outcome) 

  • A purpose the state may have claimed

    • Kids going to school together would lead to attacks on kids by kids 

  • But rules more on impact than purpose

    • Court doesn’t talk much about the purpose behind the different schools

When there is no facial classification– purpose and impact must be discriminatory 

Washington v. Davis

Facts

• Cop test

  • Reading comp, verbal ability, vocab

  • No correlation between scores and job, not related to being a cop 

• Two black cops sued, black men were less likely to pass than white men to go to police academy 

No facially class– purpose and impact

• Discriminatory impact here 

  • Fewer black cops

• Not enough evidence to show racial motivation 

  • Not enough to show purpose here 

  • Not easy to show purpose 

McCleskey v. Kemp

Study #s

• Black D, white V – 22% death – 70% state sought death

• Black D, black V – 1% death – 15% state sought death 

• White D, white V – 8% death– 37% sought death

• White D black V – 3% death– 19% sought death 

Race is a big predictor of the rate of request of death penalty and how often it is given 

Court

• Lots of disparate impact, but need to show purposeful discrimination. They didn’t show purposeful discrimination 

Historical discrimination 

• Court  acknowledged Georgia had 3 sentencing law struck in the past 15 years because of discrimination– dissent 

  • Between that and the study, racism

• Majority– can’t look at history and present, always find racism in history 

Take away– really hard to show discriminatory purpose. Can’t just do it by the numbers 

Palmer v. Thompson

City closed public pools when forced to desegregate them. 

Holding– had discriminatory purpose but no impact. 

• Class

  • Not facial. So go to impact

  • Pools shut down for everyone – not facial

    • Disparate impact – no. No one gets public pool

    • Discriminatory intent–

      • Dissent– this is like, almost bonus discrimination, because you just stopped doing it instead of integrating. This beats the point of integration 

    • Note: if to stop violence, then yeah, racism isn’t only purpose. So would pass rational basis 

  • Nexus

    • It is a pool, not EMS. This is not an essential service 

Village of Arlington Heights v. Metropolitan Housing Development Corp.

• Framework out of the case (invidious discrimination) 

  • Step 1– P burden

    • Show discriminatory purpose was “a motivating factor” using Arlington Heights factors (impact, historical background, sequence of events, procedural departments, contemporaneous statements)

    • Not the sole or dominant rason– just a reason among possibly several

  • Step 2– Gov burden

    • The “same decision” defense (from Mt. Healthy v. Doyle, 1977): prove it would have reached the same decision anyway, for legitimate reasons

    • If the gov carries this burden, the P loses. If not, the action is treated as intentional discrimination 

Carolene products 

• Held: upheld under ordinary rational basis review 

• Footnote:

  • “Prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry” 

  • What is discrete and insular

    • Discrete– IDable, membership can be defined and recognized, by others and by its own members

    • Insular– a group that doesn’t cross-cut with other interest groups– it can’t build the shifting coalitions ordinary politics run on 

  • From that they head toward a framework 

    • History of discrimination– legally, formally disadvantage, not just occasionally slighted

    • immutability/relevance– something cannot change, and does it bear on their ability to contribute

    • Political powerlessness– can they organize, vote, and lobby to a fix, or are they structurally locked out

    • Discrete– can we define this as a bounded, IDable class 

  • Careful– this isn’t consistent. Ex: religion isn’t immutable, but it gets protected 

Mullin

• Rational basis: is the default, there is no lesser level of scrutiny; at a minimum, legislation must pass rational basis 

• Facially neutral laws: If disparate impact AND discriminatory purpose 

• Arlington heights framework

  • Step 1 – P burden

    • Demonstrate that discriminatory purpose was a motivating factor does not need to be the sole, or even the dominant, factor

  • Step 2– gov burden

    • (1) impact (2) historical background, (3) sequence of events, (4) procedural departures, (5) contemporaneous statements

    • Prove that it would have reached the same decision absent discriminatory purpose “same decision defense”

  • Where does immigration deference come in – in the face dinging on both steps, defer to gov explanations 

Mullin

• Does Arlington heights – both majority and dissent 

  • Dissent– how it should apply

    • P showed racism through the statements 

  • Majority – said they did it 

    • Did not say where they turned in the decision 

    • Immigration is different when feds do it. Give them deference on that 

  • Majority– give them deference on immigration, that is what the exec is meant to do. SOP 

Foley v. Connelie

exclusion of non-citizens from police–state self-gov thing

Ambach v. Norwick

non-citizen excluded from public teaching – self-g ov

Mathews v. Diaz

upheld residency requirement for non-citizens

Trump v. Hawaii

upheld travel ban on nat sec grounds 

Plyler v. Doe

struck down denial of education to undocumented treatment 

alienage

• Fed alienage– rational basis always

  • Can limits benefits by residency – Mathews v. Diaz

  • Can impose travel ban– Trump v. Hawaii

• State– non citizens generally strict

  • Can’t bar aliens from civil service jobs– Sugarman

  • Can’t require citizenship for bar admission – Griffiths

• Exception: self gov/ democratic process roles– rational basis

  • Can exclude non-citizens from police– Foley

  • Can exclude non-citizens from public teaching – Ambach

  • Note, self gov, so SS applies

    • Can’t deny public welfare to resident aliens– Graham

    • Can’t condition financial aid on citizenship– Nyquist 

• Exception: legal v undocumented states– adults– rational basis

  • Not a suspect class: entry was voluntary/unlawful – Plyler v. Doe

    • Note: does not apply to undocumented kids– denying them public ed gets heighted rational basis– requiring a "substantial state interest” 

• Brown II

• No specific remedy mandated

• Lower courts to supervise, case by case

• All deliberate speed– flexibility 

• That flexibility let a lot of places delay for years

• Cooper v. Aaron

• Little rock

• Judicial supremacy on constitutional meaning

• States can’t nullify a ruling, openly or by evasive schemes

• Unanimous, show of force

• Swann

• Equitable remedies are flexible

• Rations (starting point), rezoning, busing all permissible tools

• Remedy is capped by scope of violation 

• Obligation ends once “unitary status” is achieved 

• Keyes v. Denver

• Purpose can be inferred from pattern of official acts and effect

• Violation in one part of distinct creates presumption it is district wide

• Milliken v. Bradley

• Interdistrict remedy requires proof of an interdistrict violation

• Suburbs can’t be swept in absent their own constitutional violation– sharply limits remedial reach 

• Dowell

• Obligation ends once district shows compliance and is unlikely to return to its former ways

• True even where lifting supervision risks desegregation

• Missouri v. Jenkins 

• Continued achievement gaps alone don’t prove the violation persists

• Remedy can’t be open-ended – no permanent entitlement to court supervision 

Bakke

ven “benign” racial class gets strict. Compelling: diversity (novel) but not necessary to be a quota, can do individual plus

Croson

compelling interest requires specific findings of discrimination bt that gov actor, general societal discrimination not enough

Adarand

Strict applies to all race class, at any level of gov

Grutter

diversity in higher ed compelling, but not necessary in terms of system

Parents involved

comeplling, but no remedial predicate. Not necessary, try race-neutral method

Fisher

compelling, necessary, no workable alts get same result

SFFA

 not compelling, too amorphous/unmeasurable for judicial review. Necessary not reached, Grutter reasoning effectively overruled

Frontiero v. Richardson

Struck down sex discrimination 8-1 

• Military benefits: a man could claim his wife for military benefits auto, women couldn't. Not allowed

• Not really a test yet 

Craig v. Boren

Drinking age case with beer 

Intermediate for gender – “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” 

Why this case

• Brought by a man

  • Civ rights trick, bring the other P, not the one whose rights you want

United States v. Virginia 

Virginia military institute 

• VA reasons rejected– a post hoc rationalization, not actual purpose 

• VA remedy– pale shadow of VMI 

Let them in the school 

• Court– Cannot do that. 

  • Not okay to do seperate school, that is less good 

• She uses intermediate scrutiny 

  • She calls is exceedingly persuasive justification 

    • Compare to other cases– important purpose 

    • Who knows if these are the same. Seems exceedingly persuasive is stricter? But who knows 

  • And substantial relation 

• VMI did it off stereotypes

  • Not exceedingly persuasive– based on stereotype 

  • Excluding women as a category is not an important purpose based on stereotypes 

Geduldig v. Aiello

• Pregnancy case

• Disability for most things, not pregnancy 

• Why? Money– expensive. Lots of people get pregnant, very common disability, very expensive. Can also last a while  

• Court said it was fine

  • To keep it self supporting at cost, pregnancy cannot be included 

  • Court doesn’t get into stereotypes or bio differences. More about classification 

• Hypo

  • Covered everything but surgeries for prostates 

  • Not facial class, but class based on birth sex 

    • Argument against that– lots of men don’t need prostate surgery 

    • Class is just women and a lot of men, people who don’t need surgery on prostate

  • By majority logic, not 1:1 to sex, so not classification 

Women aren’t really a minority by population percent, but there are still stereotypes that lead to invidious discrimination 

• Can take the case to say that like, not on cost but invidious stereotype (women have a man to take care of them while with child)

• If not protected class, in rational basis 

  • Court may say this is a thing of stereotypes that are equivalent to animus 

  • Like Romer, kinda 

• Overruled by act of congress that required disability for pregnancy 

Orr v. Orr

• Alimony for women, not men. Women do not have to pay alimony, just men.

• Court says no, everyone has to pay alimony. No class, go case by case

• There isn’t a real purpose, already in court and doing a lot of this. Just do it case by case 

• This was a thing because they didn’t want men relying on a woman, woo, toxic masc 

• Alt arg: why not allow this, women are generally disadvantaged, let them keep the money 

Mississippi University for Women v. Hogan

• Women’s only nursing school

• Hogan (man) wants to go to that school (closest to where he lives) 

• Cool to run women’s only school to help women. Yeah nursing is generally seen as a woman’s job, but want women to have jobs

• Counter: most nurses are women, they don’t help 

• Nothing about this that needs to be women only 

• Remedying past wrongs can be important, can meet nexus, doesn't meet nexus here

Some arguments 

• Women were more recently disadvantaged (ex: vote) than other suspect classes, so can get more gov favor for women than for those other classes based on longer lasting stereotypes  

• Can remedy wrongs for women based on stereotypes, cannot remedy wrongs based on race because that perpetuates stereotypes 

Rostker v. Goldberg

• Court– you can draft only men 

  • Military deference – court reason 

    • (but see VMI)

• Other args

  • Need someone to run the economy

  • Not everyone can be on front line, someone needs to make steel 

Dobbs

overturned Roe– can restrict abortions 

This class

• Not a class based on sex– extended gulduldic (however you spell it) 

• Not a facial class unless sex is written in or very clearly all women are in one class, all men in another 

chart for gender

case	class	holding	Reasoning
Weinberger	Survivor benefit for widowed mothers, not dads	Struck	Assume’s mens earnings support families; women don’t significantly contribute
Califano	Widows get survivors’ benefits automatically, widowers must prove dependence	struck	Rests on a presumption that wives are usually dependent
Orr	Alimony against husbands only	struck	Sex can’t proxy for need; hearings already ID needy spouse
Wengler	Worker comp– widows automatic, widowers must show dependence	Struck	Dependent wife generalization

Mississippi Universtiy for Women v. Hogan

• Supporting women in school (to support in work force) can be and is an important interest 

• But here, lots of nurses are women, so this isn’t needed 

Bostock v. Clayton County, GA (2020)

Facts

Three cases started the case, in each, an employer fired a long-time worker shortly after the employee revealed they were queer and allegedly for no reason other than that status.

Holding / reasoning 

Title VII of the civil rights act of 1964 protects employees against discrimination because of their sexual orientation or gender identity. 

Test:

“Because of”-- employers cannot take certain actions “because of” membership of a class

“But-for” test

Definitions:

Sex definition: status as either male or female as determined by reproductive biology

Because of: by reason of or on account of

Discriminate: To treat someone worse than others who are similarly situated

Skrmetti (canvas)

• SCOTUS did not have full factual record when they took the case 

• TN anti-gender affirming care for minors law 

  • Drugs were allowed for other uses, like early puberty. No limits on the drugs for adults 

• Court upheld it under rational basis, no heightened scrutiny 

  • Read classes as age and medical use 

    • Both are rational basis 

  • Not sex

    • “Mere reference to sex is sufficient to trigger heightened scrutiny" 

• Other opinions

  • Thomas– no deference to claimed med consensus

  • Barrett with Thomas

    • No suspect class: not immutable, not discrete, no history of de jure discrim 

Nguyen v. INS

• Mom v dad for citizenship is fine 

Incorporation through due process

• Bill of rights applies to states when it is part of liberty under 14th due process

• Test

  • Fundamental to our scheme of ordered liberty; and

  • Deeply rooted in this nation’s history and tradition 

• Court just categorically deals with them. Most of bill of rights incorporated now 

  • 3rd not 

  • 7th is only in part 

    • Not unanimous civil juries 

    • Right to grand jury 

Lochner v. New York

• Freedom of contract is liberty protected by due process clause

• State may restrict the right only for a valid police purpose: health, safety, or morals 

• Court closely reviews both the end and the means 

Why? Due process

• Get a hearing before gov takes stuff from you (often enough at least) 

• What process is due for right to be taken 

Slaughter house

• 14th is just race and citizenship

• State can give monopoly to a single slaughterhouse and it not offend 14th 

• Originalist and textualist argument – historical context of 14th to block 14th from this 

Lochner era chart

case	law	result/rule
Adair v. US and Coppage v. Kansas	Barred employers from requiring workers not to join a union	Struck. Employer and employee are equally free to set terms of employment
Muller v. Oregon	10 hour work day for women	Upheld. Women’s physical difference justify protection that could not be sustained for men
Adkins v. Children’s hospital and Morehead v. Tipaldo	Min wages for women	Struck. Freedom of K is rule and restraint the exception
Weaver v. Palmer bros	PA banned shoddy as bedding	Struck. A ban is unreasonable when sterilization removes risk

West coast hotel

• WA set min wage for women 

• Const doe snot speak of freedom of contract. Regulation that is reasonable and adopted in the community’s interest is due process. Adkins is overruled 

Carolene products

• Filled milk

• Economic regulation is presumed constitutional and upheld if any rational basis supports it 

• Also footnote 4

  • Presumption may be narrower for laws within a specific constitutional prohibition, laws restricting the political process, and laws directed at discrete and insular minorities 

Police power (state power) 

• Health, safety, morals, welfare of the people 

• What substantive due process protects 

Fundamental rights questions:

• Right asserted? 

  • What right does the challenger claim, and how does each side describe it? 

• Fundamental?

  • Is that right fundamental?

• Infringed?

  • Is there a direct and substantial interference with the right?

• Level of scrutiny? 

  • Fundamental and infringed: strict scrutiny. Otherwise rational basis

• Apply

  • Purpose? Strict scrutiny: compelling. Rational basis: legitimate.

  • Nexus? Strict scrutiny: necessary, with no less restrictive alternative. Rational basis: reasonable 

West Virginia v. B.P.J.

Fundamental right: 

1. Which right? Playing sports.

2. Fundamental? No. 

3. Infringe? No

4. Level of scrutiny: Rational basis. 

5. Purpose:  legitimate/not pure animus

6. Nexus: rationally related

EP Classification: 

What is the classification?

What level of scrutiny does this classification demand? 

Apply level of scrutiny 

EP Classification: 

What is the classification? People born male vs. people born female.
a. Facial classification - birth gender/sex

    This is a facial sex-based classification.

Not Geduldig/Skrmetti: If pregnant/trans women are on one side and other women and men are on the other side, not a classification

Could say but don’t:  On one side it’s women & people born male wanting to play women’s sports vs. people born male who do not want to play women’s sports,

B. Identify with sex assigned at birth vs. don’t (transgender status)

What level of scrutiny does this classification demand? 

1. Has the court already categoried this classification?

   1. Gender = intermediate scrutiny.

2. Is this an open category or can we make a new argument based on current conditions? Carolene products facts

   1. Transgender status: not reached whether it gets intermediate or rational basis

      1. Concurrences: Justice Barrett & Justice Thomas: RB only for transgender status. Alito = same. 

      2. Carolene products factors ___ 

Apply level of scrutiny 

3. Intermediate: 

   1. Gender purpose: intermediate  YES - important/exceddingly persuasive - title ix -poortunites. 

   2. Gender nexus: sufficient - YES - birth gender impacts size/strength

4. RB: anything satisfying I satisfies RB

Lochner v. New York

Issue: Contractual freedom v public health

Fundamental Rights

Step 1: What rights or privileges does the legislation implicate?

Liberty of contract

Step 2: Is the right fundamental?

Yes. Lochner area. Economic freedom is a fundamental right.

Step 3: Is that right truly infringed?

Yes.

Step 4: Level of scrutiny?

Strict - fundamental right

Step 5: Purpose and Nexus

Purpose: Protect the baker's health.

Nexus: protecting health of bakers in this situation is not a good reason. Freedom of contract is more important.

Weighed safety vs freedom of contract. Freedom of contract fundamental - more important

Court has economic theory behind them. We’re not going to consider anything non-economic

Adair v. United States + Coppage v. Kansas

Issue: Contracting out of unionization

EP Framework:

1. Facial (employers/employees)

2. Rational Basis

3. Purpose: General welfare/health and safety of employees

Nexus: Fails, not closely related 

FunRights:

1. Right to contract

2. Yes (later no)

3. Yes (at this point, but later no)

4. Strict scrutiny (later rational basis)

5. Purpose: General welfare/health and safety of employees (contract protection for employees)

Nexus: PASS right to contract fundamental (after Lochner era no nexus because right to contract is not fundamental)

Muller v. Oregon 

Oregon passed a law setting a minimum wage for women, challenged under Due Process

1. What is the right being implicated?

   1. Right to contract 

2. Is the right fundamental? 

   1. Yes, at the time (Lochner)

3. Direct and substantial interference?

   1. Yes, interferes with the right to sell your own labor

4. Passes strict scrutiny?

   1. SS is not articulated, but the court holds the state had a sufficiently important purpose in restricting the right

Bunting v. Oregon

regon set maximum hours that could be worked by manufacturing laborers

Equal Protection:

1. Classification?

   1. Facial – manufacturing laborers

2. Scrutiny?

   1. Rational basis

3. Purpose

   1. Protect the health of employees in those industries

4. Nexus

   1. Only needs to be rationally related to a legitimate government purpose

Fundamental Rights:

1. What is the right being implicated?

   1. Right to contract

2. Is it a fundamental right?

   1. [At the time] general contracting is a fundamental right subject to state’s police powers

3. Was the right infringed?

   1. Yes

4. Scrutiny?

   1. Strict (then)

   2. Rational basis (now)

5. Sufficient purpose?

   1. Protect the health of the employees

6. Are the means related to the purpose?

   1. Yes

Adkins v. Children's Hospital

Fun Rights

1. Right: Freedom of contract; freedom to set wages

2. Fundamental? Yes, at the time. No, after West Coast holding.

3. Infringed? Yes. The law set wages for them.

4. Scrutiny: SS. Lochner-era.

5. Apply: Purpose was to protect women’s health and protect her morals. The nexus fails because wage is not sufficiently related to their stated purpose.

EP

1. Classification: Facial classification on sex.

2. Scrutiny: Intermediate scrutiny for sex.

   1. Purpose: Protect women’s health and morals. At the time, seen as legitimate purpose. Now, might be classified as a stereotype.

   2. Sub. Related? No. A 

West Coast

1. Right: Freedom of contract

2. Fundamental? No. Constitution does not mention it.

   1. How do they reconcile prior cases? Why are they overturning precedent here? Changing the test? Changing judicial policies

      1. Adkins is an outlier. Scrutiny/review no longer “exceptional circumstances; now it is essentially RB. Courts defer economic policy to legislatures.

3. Infringed? Yes, in the past. Does not matter now, not a right.

4. Scrutiny: RB. 

   1. Purpose: Protect workers health, unequal bargaining power, and low wages. All legitimate.

   2. Fit: Yes, rationally related.
      
      

EP

1. Classification: Facial; sex.

2. Scrutiny: Intermediate.

   1. Purpose: Women’s exploitation/wage gap. Fixes past injury.  Valid purpose.

   2. Related? yes.

United States v. Carolene Products Co.

Equal Protection Analysis

• Class

  • Skim milk with non-milk fats vs. Normal whole milk/Cream

• Level of scrutiny 

  • Rational Basis

    • “Within the knowledge of experience of the legislators.”

• Does it meet

  • Purpose

    • To prevent consumer confusion/provide nutritious food products to consumers (Economic Regulation). Additionally, to prevent the public from purchasing a fraudulent product. Legitimate Interest.

  • Nexus 

    • Exception: Footnote 4

      • Deferential review does not apply, and a more searching judicial inquiry is required when…. “Discrete and insular minorities” 

    • Rationally related to issue at hand– within scope of legislative judgment to prevent injury to public

• Boddie v. Connecticut

• Equal Protection

  • Classification? Can pay v. can’t pay filing fee

  • Level of scrutiny: rational basis

  • Apply scrutiny: legitimate/rationally related

    • Legit: state funding

    • Rationally: sure, why you’re not

• Fundamental Rights

  • Right impacted: right to marry

  • Fundamental? Yes

  • Infringed? Yes

    • Preventing from obtaining . . . precludes from marrying someone else

  • Scrutiny: strict 

  • Apply: fails!

    • Purpose: compelling and necessary - $$$ Fiscal decisions

    • Nexus: not the only way possible to achieve funding

• Califano v. Jobst

• Facts: social security termination

• Equal Protection

  • Classification: facial, disabled children getting married v. disabled children not getting married and everyone else

  • Scrutiny: rational basis

  • Does it work? No

• Fundamental Rights

  • Right to marry is fundamental

  • Not infringed, burdened but not precluded from marrying

  • Rational basis

  • Passes the standard, sure, saving money is fine

Loving v. Virginia

1. Facial: Yes- Same Race Marriages vs. Mixed Race Marriages

2. Non-facial: State’s argument: Maybe applies equally to both races (Pool case), Court declines to accept this argument

2. Level of Scrutiny

1. Strict Scrutiny: Court does not reach

2. Rational Basis: Legitimate purpose + rational related 

3. Does is meet level of scrutiny: 

1. Strict Scrutiny: Court does not address as doesn’t pass rational basis

2. Rational basis: 

I. Purpose: Pure animus is not allowed, State could provide no purpose besides protecting the white race who the State deemed as superior race (Racism) 

II. Nexus: Not the main issue, but not rationally related to a purpose with pure animus

Fundamental Right: 

1. What right is at issue?

   1. Right to Marry

   2. Right to Raise Children

2. Is that right fundamental?

   1. Yes

   2. Yes

3. Does the law infringe on that right?

   1. Yes, it explicitly prevents some people from marrying other people

   2. Yes, active prevention of mixed race babies infringes on right to raise children in x circumstances

4. Level of Scrutiny

   1. Strict, because it is infringement on a fundamental right

5. Purpose/Nexus

   1. Compelling Purpose?

      1. White blood- no

   2. Narrowly Tailored?

      1. No, likely does not actually prevent mixed race babies

Zablocki v. Redhail

Fundamental Right

• Right: right to marry 

• Fundamental: yes

• Infringed: yes 

  • Law did not merely make marriage more expensive or inconvenient; it directly prevented certain individuals from marrying unless they satisfied a financial condition 

• Level of scrutiny: heightened - scrutiny 

• Purpose: 

  • Gov’s purpose: child custody payments ensured, children taken care of 

• Nexus: 

  • Means were not narrowly tailored: state had other ways of enforcing child support obligations 

  • Law imposed serious burden on marriage w/o effectively achieving objective 

• Fails heightened scrutiny 

• 
  

• Level of scrutiny: intermediate 

  • Purpose: legitimate state purpose

  • Nexus: means not narrowly tailored

    • Less restrictive means available

    • The law only focused people who wanted to marry, even though someone could avoid marriage and still fail to pay child support.

United States v. Windsor

Fundamental Rights Analysis

• Right to marry (same sex couple)

• Fund. Right: YES

• Infringing: YES

• Scrutiny: HEIGHTENED

• Purpose: “Stigma and disadvantage” = animus

• Nexus: rationally related, however not compelling govt. objective

Equal Protection Analysis:

1. What is the classification?

   1. Yes there is a facial classification. DOMA treated same-sex marriages differently from opposite-sex marriages.

2. What level of scrutiny does this classification demand?

   1. Intermediate Scrutiny/ Rational Basis with Bite 

3. Apply level of scrutiny

   1. A bare desire to harm an unpopular group cannot justify disparate treatment.

   2. Purpose: Disadvantaging and stigmatizing same-sex married couples – not legitimate.

   3. Nexus: Because the purpose itself is illegitimate, DOMA fails rational basis review.

Obergefell v. Hodges (A)

1. Rights implicated: Right to marry

2. Fundamental: Yes. Marriage is fundamental (Loving)

3. Infringement: Yes. Direct and substantial interference. States refused marriage licenses and withhold recognition from existing marriages.

4. Scrutiny: Strict Scrutiny

5. Purpose and Nexus: State interests in maintaining traditional marriage definitions did not justify excluding same-sex couples from a fundamental right.

EPC:

1. Facial; the law discriminates between same-sex and opposite-sex couples

2. Not a settled area of law, so we look to Carolene Products factors: history of discrimination (yes), immutability (debatable either way), political powerlessness (yes), discrete/isolated (debatable either way); therefore, suspect class in need of rational basis with bite. We could potentially extend Romer’s settled law on homosexuality being a heightened class to this situation, though it is not settled directly

3. Encouraging procreation is a legitimate government interest, and preventing same-sex marriage is one way to rationally achieve that goal

Stanley v. Illinois

1. What right? Custody of your child

2. Fundamental?Yes

3. Infringe? Yes

4. Level of scrutiny: no tier of scrutiny named – deserves seared and raised

   1. Focus on procedural due process 

5. Purpose: protect children’s welfare; administrative efficiency

6. Nexus: failed 

   1. Assumption that unwed fathers don’t care for their children = stereotype

   2. Not justified 

EP Classification:

1. What is the classification? Unwed fathers vs. other parents

   1. Facial classification: sex + marital status

2. What level of scrutiny?

   1. Has court categorized this classification? No, no tier named

3. Apply level of scrutiny

   1. Intermediate:

      1. Purpose: child welfare – important 

      2. Nexus: stereotype of unwed fathers being unfit = unfair – not met

   2. RB: likely fails too – same reasons as above → unfair stereotype

      1. Case by case basis → a less discriminative alternative exists (individualized hearings when applicable)

Michael H. v. Gerald D. (A) - majority

1. Right: biological but unmarried/separated father’s ability to participate in and control biological child’s upbringing

2. Fundamental: no, history and tradition supports the father within the nuclear family asserting these rights

3. Infringed: doesn’t matter, not fundamental

4. Scrutiny: rational basis - passes

   1. Purpose: legitimate - protecting the nuclear family and its effect on a child’s upbringing

   2. Nexus: rationally related - preventing biological fathers who do not timely assert their rights from participating in the child’s upbringing

EP analysis

1. Classification: biological, unmarried, separated father

   1. Does not appear to be a proxy for classification triggering heightened scrutiny 

2. Level of scrutiny: rational basis - passes

   1. Purpose: legitimate - protecting the nuclear family and its effect on a child’s upbringing

   2. Nexus: rationally related - preventing biological fathers who do not timely assert their rights from participating in the child’s upbringing

Meyer v. Nebraska

Fundamental Rights

1. Right: Right of parents to control children's education.

2. Fundamental right: Yes - parents have a fundamental right to control the upbringing of their children. The teacher’s right to teach and “the right of parents to engage him to so instruct their children” are fundamental rights

3. Infringed: Yes - statute barred teacher from teaching child German. The statute violated the due process clause of the 14th amendment. 

4. Level of scrutiny: Heightened Scrutiny

5. Purpose: Americanize/make English the only language children learn.

   1. Compelling interest (yes) - “fostering… American ideals” - BUT “no adequate reason . . . in time of peace and domestic tranquility”

6. Nexus: Narrowly tailored with no less discriminatory means (No). Means are arbitrary and lack a sufficient relation to the purpose - court says learning a foreign language is “not injurious”. 

fun rights

What makes fundamental right

• Framing– what is the right

• Is the right fundamental

• Is the right infringed 

  • Is there direct and substantial interference with the right 

• Level of scrutiny 

• Apply

  • Purpose

  • Nexus 

Windsor

• EP

  • Class

    • Straight people v not 

  • Scrutiny 

    • Can argue

      • Gender– bostock – but-for – intermediate 

      • Sexuality – romer – rational basis with bite 

        • Court seems to go with this one, rational basis with bite 

        • Assumes without deciding a bit – undecided if sexuality is higher scrutiny or not 

  • Apply

    • Purpose– not legit purpose 

      • Bare desire to harm 

      • State’s rights – fed doesn’t do family law 

      • Can look to infer purpose (Animus) (things like purpose, leg history, etc) 

      • For real rational basis though, just need any conceivable purpose

        • Not the real purpose for the law, just any 

    • Nexus 

      • Not addressed 

Obergefell v. Hodges (2015)

Fun rights

• Right

  • Marriage– majority 

  • Gay marry

  • Right to marriage is right to gay marriage

    • Privacy choice and liberty argument – marriage as manifestation of personal choice/autonomy, so liberty interest – right ot marriage to person you choose – history and tradition, but with living const, culture has changed

      • Marriage is the goals intended by history and tradition 

  • V dissent and gov

    • History and tradition in text and as originally understood 

• Fun?

  • Yes – majority 

  • No

• Infringed

  • Yeah, duh

• Scrutiny 

  • Strict 

  • But also fails rational basis, so. Aka. majority dodged if this is strict again

  • Dissent– hard no, not strict, real rational basis 

Meyer v. Nebraska

• Fun right?

  • Yup– rearing of kid 

• Infringed?

  • Yup

• Scrutiny

  • No strict back then 

  • Had heightened review, but that’s it 

  • This is under rational basis 

    • Purpose

      • Fine. can want common lang 

    • Nexus not legit 

      • Ability to raise kid with different langs is reasonable 

      • Not at war, no nat sec issue 

    • Don’t worry about how they frame work it 

• Tldr

  • Right fundamental

  • Deeply rooted in history and tradition

    • But of living const, bit of originalism 

Cruzan v. Director, Missouri Department of Health

Fun right 

• Right

  • Refuse medical care you do not want

• Is that fundamental

  • Assumed

  • Why do that and not decide? 

    • To dodge. It passes strict scrutiny, so 

• Infringed?

  • Weird 

    • This is a P specific infringement, state has bar for showing that is what she wanted or not 

    • Lightly assumed 

  • Burdened by evidence, but not fully prohibited 

• Scrutiny 

  • Purpose

    • Preserving life

    • Declining to substitute judgment of others for that of patient

    • Protecting against abuse 

    • That all meets

  • Nexus 

    • Yeah, fair to have higher standard for this 

Cruzan v. Director, Missouri Department of Health

Fun right 

• Right

  • Refuse medical care you do not want

• Is that fundamental

  • Assumed

  • Why do that and not decide? 

    • To dodge. It passes strict scrutiny, so 

• Infringed?

  • Weird 

    • This is a P specific infringement, state has bar for showing that is what she wanted or not 

    • Lightly assumed 

  • Burdened by evidence, but not fully prohibited 

• Scrutiny 

  • Purpose

    • Preserving life

    • Declining to substitute judgment of others for that of patient

    • Protecting against abuse 

    • That all meets

  • Nexus 

    • Yeah, fair to have higher standard for this  

Cruzan v. Director, Missouri Department of Health

Right– right to refuse life saving food and hydration

• Adults can refuse treatment as fundamental right

Statute– family can’t pull plug on your behalf without clear and convincing proof that is what you want 

Another way– right to die, court don’t like that though

Restriction on right– the clear and convincing thing 

Assumes fundamental right to refuse treatment – not playing framing game 

Even on strict, the P still lost, fits purpose and nexus

Strict is assumed, but they don’t care, P is never winning 

Strict 

• Purpose

  • Protect people, maintain value of life, no muder

• Nexus

  • This is valid to reach purpose without overstepping on right 

Glucksberg 

A little more on the right than cruzan

One arg

• People have to choose how they live and die. implicit in ordered liberty

• Competent adults have bodily autonomy to decide to kill themselves

• Same or similar to ending life support 

Class

• Near death

  • Competent people on life support

  • Competent people not on life support 

Here– no protected class, no fun right to die by affirmative means,  rational basis 

Life support or not is a rational difference 

To protect life, have to stop from killing self 

Like jail

• State has interest to put people who violate law out of society

• Enough to override right to not be in jail

Buck v bell

• Forced sterilization 

• Was allowed then, not now

Skinner v. Oklahoma

• No more forced sterilization 

• Right

  • Fuck adn be a criminal

  • Can also frame as gov infringement on body 

• Fun

  • Yes

• Infringed

Griswold

• Right

  • Marital privacy 

• Fun

  • Yes 

    • Bill of rights penumbra, other laws

• Infringe

  • Yes, very directly 

• Scrutiny

  • Fails idk

Roe

• Privacy, broad enough to cover abortion decision 

• One arg

  • Analogize to cruzan. Fetus is the ward. Mom is guardian. How to protect rights of both 

  • Here– mom has her autonomy being invaded, soooo

• So trimester framework– changes nexus 

• Right to choose – fun right 

• Infrigned– yes– depending on framing a bit, but yes  

• Assume strict 

  • Gov purpose– preserve life of the unborn, protecting life of mom – trying to stop risky procedures

    • Nexus– weighs life of unborn v rights of mom 

    • Court– mom wins until like, 3rd trimester. Can reg in 2nd trimester as relates to mom’s safety 

Roe had a 3 part system by age of fetus

• 3 trimesters

• 1st trimester– state can’t do much

• 2 and 3 trimesters– regulated

  • Court figured viability was at end of second trimester 

• Analyzed legislation based on trimester

15th amendment

 lets congress enforce voting rights. Voting rights for freed persons (not covered in previous reconstruction amendments) Voting is usually an fun right, EP because there is usually classifications involved 

Ex: Crawford, Bush v. Gore

Bush v. Gore

• Class

  • Whose ballot gets counted in the recount?

    • 4 counties of voters v rest of state 

    • Voters whose ballots showed under vote v over vote or regular vote 

• Fun right

  •  Yes– probably strict

• Purpose

  • Finality and legitimacy– can count forever 

  • Need to meet their December 12 deadline 

• Nexus 

  • Have to get to the deadline. 

Undergrad Crawford v. Marion Co. Election Board (2008)

The 14th amendment equal protection clause does not prevent a state from requiring citizens voting in person to present government-issued photo identification. 

anderson-Burdick sliding scale

• All election rules burden voting somewhat, and states must regulate to run elections. So weigh burden v state interests

• Severe burden– strict

• Reasonable, non, discriminatory burden– rational (important reg interests suffice) 

 goldber v mathews

benefit	Before termination?	why
Welfare goldberg	Evidentiary hearing, with cross exam and impartial decisionmaker	Based on need; can’t survive wait
Disability mathews	Notice and written response; full hearing after	Not based on need; medical records cut errors

Pleasant Grove City v. Summum

Holding (Alito, unanimous): Reversed. Permanent monuments in a public park are government speech, so the Free Speech Clause does not apply. The city chose which monuments to accept and kept final authority over them, so the monuments expressed the city’s message, not the donors’.

Concurrences: Breyer and Souter warned that “government speech” should not become a rigid category that ends the inquiry automatically. Scalia added that the Ten Commandments display likely raised no Establishment Clause problem.

Walker

Reasoning

• Hsitory– plates have long carries state messages

• Public perception– plates are gov ID, with the state’s name on them 

• Control– Texas approves every design 

Shurtleff 

Private– not pure government speech 

• Private speech– 1st amendment applies 

• Reasoning

  • History– flags on gov building usually carry the gov message. This favored BOS 

  • Public perception– any group could fly its flag

  • Control– boston never shaped a flag’s message. Decisive

Spence (peace sign 

Step 1: element d (words or expressive conduct) 

Facts: peace sign, taped to an american flag after school shooting 

Holding: display was speech 

Reasoning

• Intended to send a message

• In context, the people who saw it would understand the message

• It was “a pointed expression of anguish,” not "mindless nihilism”

Test

• Mean to send message

• In context, will other people understand message