Comprehensive Notes on Constitutional Amendments

First Amendment: Freedom of Religion

  • The First Amendment states that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

Establishment Clause

  • The Establishment Clause means there is no official religion or preferential treatment for certain religions.
  • It establishes a "wall of separation" between church and state.
  • Engel v. Vitale (1962)
    • States cannot hold prayers in public schools, even if participation is voluntary and the prayer isn’t tied to a specific religion.
    • State sponsorship of religious activities violates the establishment clause.
  • Lemon Test
    • Established by the Supreme Court to determine whether a law violates the Establishment Clause.
    • The test has three prongs:
      • Does it have a secular purpose?
      • Does it inhibit or advance a religion?
      • Is there “excessive entanglement” between government & religion?
  • Government involvement in religious activities is constitutional if it meets specific tests:
    • Secular purpose.
    • Primary effect neither advances nor inhibits religion (Engel v Vitale).
    • No excessive government entanglement with religion (Lemon Test).
    • Since 2022, must rely on historical practices and understandings.

Free Exercise Clause

  • Citizens have the right to practice their preferred religion.
  • The Free Exercise Clause protects the individual from any coercive measure that encourages them toward one faith or creed, discourages them from another, or makes it prudent or desirable for them to select one and embrace it.
  • Ensures that no law may impose particular burdens on religious institutions (Yoder).
  • Compelling Amish students to attend public school beyond 8th grade violates the Free Exercise Clause.
  • There are no religious exemptions from laws binding all other citizens, even if that law oppresses your religious beliefs.
  • Some conflicts between religious freedom and public policy continue to be difficult to settle.
  • Espinoza v. Montana (2020)
    • The Court held that Montana’s no-aid provision excluded religious schools from public benefits solely because of religious status, in violation of the Free Exercise Clause.
    • The Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.”
    • The law must be subject to strict scrutiny review; that is, the government must show that its action advances “‘interests of the highest order” and that the action is “narrowly tailored in pursuit of those interests.”
    • Montana’s interest in creating greater separation of church and state than the federal Constitution requires does not satisfy strict scrutiny given its infringement of free exercise.

First Amendment: Freedom of Speech

  • The First Amendment states that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Preferred Position Doctrine

  • Free speech is fundamental to liberty; therefore, any limit must address severe, imminent threats.
  • The Court's preference is to rule in favor of free speech whenever possible.

Tinker v. Des Moines (1969)

  • Students have free speech at school; to justify suppressing speech, the school must prove that it would substantially interfere with the operation of the school.

Symbolic Speech

  • Actions that purposefully convey a particular message or statement (signs, symbols, etc.)
  • Hate speech is protected as long as it doesn’t call for imminent lawless action.

Morse v. Frederick (2007)

  • Facts: A student was suspended from school for holding a banner that said “Bong Hits 4 Jesus”; the principal justified the suspension by citing the school’s policy against promoting the use of illegal drugs.
  • Question: Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events?
  • Holding: Yes, schools can prohibit students from displaying messages that promote illegal drug use.
    *Explain why the facts in Tinker and Morse v. Frederick led to different outcomes.
    *In a concurring opinion, Justice Thomas expressed his belief that students do not have any free speech and argued that Tinker should be overturned entirely. In your opinion, should students have free speech? Should students’ free speech be any different than adults? Explain.
    *Is this case an example of the Court following stare decisis?

Minersville School District v. Gobitis (1940)

  • Facts: In 1935, Lillian and William Gobitis were expelled from Pennsylvania public schools for refusing to salute the flag as part of a daily school exercise. The Gobitis children were Jehovah's Witnesses and believed that saluting the flag violated Bible principles. They argued the expulsions violated their First Amendment rights.
  • Question: Did the mandatory flag salute infringe upon liberties protected by the First Amendment?
  • Holding: The state’s interest in “national cohesion” was “inferior to none in the hierarchy of legal values.” The school district’s interest in creating national unity was enough to allow them to require students to salute the flag. The Court declined to make itself “the school board for the country.”
  • Dissent: The very essence of the liberty guaranteed by the Constitution “is the freedom of the individual from compulsion as to what he shall think and what he shall say.”
    *What judicial philosophy did the Court manifest in this case?
    *According to this ruling, when can speech be limited?

West Virginia Board of Education v. Barnette (1943)

  • Facts: In 1942, the West Virginia Board of Education required public schools to include salutes to the flag by teachers and students as a mandatory part of school activities. The children in a family of Jehovah's Witnesses refused to perform the salute and were sent home from school for non-compliance. They were also threatened with reform schools used for criminally active children, and their parents faced prosecutions for causing juvenile delinquency.
  • Question: Did the compulsory flag-salute for public schoolchildren violate the First Amendment?
  • Holding: Compelling public schoolchildren to salute the flag was an unconstitutional violation of freedom of speech. National symbols like the flag should not receive a level of deference that trumps constitutional protections.
  • Justice Frankfurter dissented. He believed the Court was exceeding the scope of the judicial role and was taking on a legislative function in striking down the law.
    *What judicial philosophy might Justice Frankfurter accuse the Court of practicing in this decision?
    *Describe the role of dissenting opinions and precedent by comparing Minersville & Barnette.

Schenck v. United States (1919)

  • Speech can be limited if it creates a clear and present danger.
    *Compare this case with Minersville School District v. Gobitis (1940).
    *Compare this case with West Virginia Board of Education v. Barnette (1943).

Brandenburg v. Ohio (1969)

  • Speech can be limited if it is inciting “imminent illegal action” and is likely to produce such action.
  • Brandenburg, not Schenck, provides our current interpretation on the limits of free speech.

Speech That Is Not Protected

  • Speech may be regulated based on time, place, and manner.
  • Libel: A written false statement defaming another.
  • Slander: A defamatory oral statement.
  • Obscenity: Based on community standards; offensive & lacking value.
  • “Imminent lawless action.”
Hustler Magazine v. Falwell (1988)
  • The Supreme Court ruled in Hustler Magazine v. Falwell (1988) that parodies of public figures are protected speech and public figures could only win a slander/libel lawsuit if they could prove ‘actual malice.’
  • This follows the precedent set in New York Times v. Sullivan (1964).
  • Facts: The New York Times published an ad for contributing donations to defend Martin Luther King, Jr., on perjury charges. The ad contained several minor factual inaccuracies. Sullivan filed a libel action against the Times and a group of African American ministers mentioned in the ad. He was victorious in state court.
  • Question: Did Alabama's libel law unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?
    *Holding: To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate, they must demonstrate ‘actual malice.’

Time, Place, and Manner Restrictions

  • There is a heavy presumption in favor of free speech on public property, but the government may impose reasonable restrictions on the time, place, or manner of protected speech.
  • Cities can require protesters to file for a permit before marching.
  • Any restrictions must be justified based on public order and safety concerns, NOT the content of the speech.
  • Any restrictions must offer people alternative ways to express their speech.

First Amendment: Freedom of the Press

Prior Restraint

  • Rules of what can/cannot be published
  • Censorship before publication *Prior restraint only in specific circumstances
    • National Security
    • Incitement to violence
    • Obscenity

New York Times Co. v. U.S. (1971)

  • Even in cases involving national security, there is a heavy presumption against prior restraint.

Obscenity

  • 1973 definition: judged by “the average person, applying contemporary community standards” to appeal to the “prurient interest” or to depict “in a patently offensive way, sexual conduct specifically defined by applicable state law” and lacking “serious literary, artistic, political, or scientific value” ○ Miller v California
  • Obscenity is not protected by the 1st amendment
  • Balancing competing claims remains a problem: freedom v. decency
  • F.C.C.

Second Amendment: Right to Bear Arms

  • A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
  • The right way to read the 2nd Amendment: Is it a right of individuals to bear arms, or is the right to bear arms specifically connected with militia service?
  • The Supreme Court changed their answer to this question for the first time in 200+ years in 2008.

Second Amendment Incorporation

  • 1875 US v Cruikshank
  • 1886 Presser v Illinois
  • 1939 US v Miller
  • 2008 DC v Heller
  • 2010 McDonald v Chicago
  • 2016 Caetano v Mass
  • 2019 Rifle/Pistol v NY
  • 2022 Rifle/Pistol v. Bruen

McDonald v. Chicago (2010)

  • Incorporated the right to bear arms.
  • The 2nd Amendment’s right to bear arms for the purpose of self-defense applies to the states through the 14th Amendment’s due process clause.

Amendments: Due Process and the Rights of the Accused

Fourth Amendment

  • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Legal Search Conditions

  • A search is legal if:
    • Probable cause exists: An officer has good reason to believe a crime has been committed.
    • A search warrant is obtained: An order from a judge authorizing a search.
    • The person consents to the search.

Scope of Search During Arrest

  • When making an arrest, an officer CAN search:
    • The person under arrest.
    • Things in plain view.
    • Things/places under your immediate control (the room you’re in).

Exclusionary Rule

  • Illegally obtained evidence may NOT be used in a trial.
    • The person MAY still be tried using other evidence.
  • The exclusionary rule is controversial because it may at times allow guilty people to go free and makes the job tougher for law enforcement.
  • The goal is to protect the rights of the accused.

Mapp v. Ohio (1961)

  • Facts: Dollree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression.
  • Question: Were the confiscated materials protected by the First Amendment?
  • Holding: In an opinion authored by Justice Tom C. Clark, the majority brushed aside the First Amendment issue and declared that all evidence obtained by searches and seizures in violation of the Fourth Amendment is inadmissible in a state court.

Limits to the Exclusionary Rule

  • Objective Good Faith: When police obtain a warrant they believe is valid but is not, the evidence gathered MAY be used at trial.
  • Inevitable Discovery Rule: If it would have eventually been found it can still be used at trial, even if it was obtained illegally.

Contemporary Fourth Amendment Issues

  • Warrantless searches of cell phone data were ruled unconstitutional in Carpenter v. U.S. (2019).
  • Limitations on bulk collection of telecommunications metadata (USA Freedom Act).
  • Should our civil liberties be limited in exchange for more promises of security?

Carpenter v. United States (2018)

  • Facts: In April 2011, police arrested four men in connection with a series of armed robberies. One of the men confessed to the crimes and gave the FBI his cell phone number and the numbers of the other participants. The FBI used this information to apply for three orders from magistrate judges to obtain "transactional records" for each of the phone numbers. The transactional records obtained by the government include the date and time of calls, and the approximate location where calls began and ended based on their connections to cell towers—"cell site" location information (CSLI). Based on the cell-site evidence, the government charged Timothy Carpenter; Carpenter moved to suppress the government's cell-site evidence on Fourth Amendment grounds, arguing that the FBI needed a warrant based on probable cause to obtain the records.
  • Question: Does the warrantless search and seizure of cell phone records, which include the location and movements of cell phone users, violate the Fourth Amendment?
  • Holding: Yes. The majority first acknowledged that the Fourth Amendment protects not only property interests, but also reasonable expectations of privacy. Expectations of privacy in this age of digital data do not fit neatly into existing precedents, but tracking person's movements and location through extensive cell-site records is far more intrusive than the precedents might have anticipated. The Court declined to extend the "third-party doctrine"—a doctrine where information disclosed to a third party carries no reasonable expectation of privacy—to cell-site location information, which implicates even greater privacy concerns than GPS tracking does. One consideration in the development of the third-party doctrine was the "nature of the particular documents sought," and the level of intrusiveness of extensive cell-site data weighs against application of the doctrine to this type of information. Additionally, the third-party doctrine applies to voluntary exposure, and while a user might be abstractly aware that his cell phone provider keeps logs, it happens without any affirmative act on the user's part. Thus, the Court held narrowly that the government generally will need a warrant to access cell-site location information.

Fifth Amendment

  • No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment

  • In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Miranda Rule

  • Suspects in custody must be informed of their 5th and 6th Amendment rights.
  • Public Safety Exception: If the question is asked to neutralize a dangerous situation and a suspect responds voluntarily, the statement can be used as evidence even though it was made before the Miranda rights were read.

Gideon v. Wainwright (1963)

  • Incorporated the right to counsel.
  • States must provide an attorney for defendants who can’t afford one.

Riley v. California (2014)

  • Facts: David Leon Riley was pulled over for driving with expired tags. Because Riley's driver's license was suspended, police policy required that the car be impounded. Before a car is impounded, police are required to perform an inventory search to confirm that the vehicle has all its components at the time of seizure, to protect against liability claims in the future, and to discover hidden contraband. During the search, police located two guns and subsequently arrested Riley for possession of the firearms. Riley had his cell phone in his pocket when he was arrested, so a gang unit detective analyzed videos and photographs of Riley making gang signs and other gang distinguishing marks that were stored on the phone to determine whether Riley was gang affiliated.
  • Question: Was the evidence admitted at trial from Riley's cell phone discovered through a search that violated his Fourth Amendment right to be free from unreasonable searches?
  • Holding: Yes. Chief Justice John G. Roberts, Jr. wrote the opinion for the unanimous Court. The Court held that the warrantless search exception following an arrest exists for the purposes of protecting officer safety and preserving evidence, neither of which is at issue in the search of digital data. The digital data cannot be used as a weapon to harm an arresting officer, and police officers have the ability to preserve evidence while awaiting a warrant by disconnecting the phone from the network and placing the phone in a "Faraday bag." The Court characterized cell phones as minicomputers filled with massive amounts of private information, which distinguished them from the traditional items that can be seized from an arrestee's person, such as a wallet. The Court also held that information accessible via the phone but stored using "cloud computing" is not even "on the arrestee's person." Nonetheless, the Court held that some warrantless searches of cell phones might be permitted in an emergency: when the government's interests are so compelling that a search would be reasonable.

Amendments: Due Process and the Right to Privacy

Right to Privacy

  • Implied by the 1st, 3rd, 4th, 5th, 9th, and 14th Amendments
  • Griswold v. Connecticut (1965)
    • Established & incorporated a right to privacy
    • States cannot prevent the sale of contraceptives
    • Privacy is a personal zone off limits to the government

Roe v. Wade (1973)

  • A woman has a right to an abortion based on the right to privacy.

Planned Parenthood v. Casey (1992)

  • Facts: The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24-hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement.
  • Question: Can a state require women who want an abortion to obtain informed consent, wait 24 hours, if married, notify their husbands, and, if minors, obtain parental consent, without violating their right to abortion as guaranteed by Roe v. Wade?
  • Holding: In a bitter 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement.

Dobbs v. Jackson Women's Health Organization (2022)

  • Facts: In 2018, Mississippi passed a law called the “Gestational Age Act,” which prohibits all abortions, with few exceptions, after 15 weeks’ gestational age. Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors filed a lawsuit in federal district court challenging the law and requesting an emergency temporary restraining order (TRO). After a hearing, the district court granted the TRO while the litigation proceeded to discovery. After discovery, the district court granted the clinic’s motion for summary judgment and enjoined Mississippi from enforcing the law, finding that the state had not provided evidence that a fetus would be viable at 15 weeks, and Supreme Court precedent prohibits states from banning abortions prior to viability. The U.S. Court of Appeals for the Fifth Circuit affirmed.
  • Holding: The Constitution does not confer a right to abortion; Roe v. Wade, 410 U.S. 113, and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, are overruled. Justice Samuel Alito authored the majority opinion of the Court. The Constitution does not mention abortion. The right is neither deeply rooted in the nation’s history nor an essential component of “ordered liberty.” The five factors that should be considered in deciding whether a precedent should be overruled support overruling Roe v. Wade and Planned Parenthood v. Casey: (1) they “short-circuited the democratic process,” (2) both lacked grounding in constitutional text, history, or precedent, (3) the tests they established were not “workable,” (4) they caused distortion of law in other areas, and (5) overruling them would not upend concrete reliance interests.

Social Movements and Equal Protection

  • Civil rights protect certain groups against discrimination.
  • Claims are raised when a group is denied access to facilities, opportunities, or services available to other groups.
  • The issue is whether differences in treatment are reasonable – Strict scrutiny vs. reasonableness.

Equal Protection Clause

  • “nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws”
  • Provides the legal basis for civil rights and anti-discrimination laws.
  • “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
  • The Civil Rights Act of 1964 was passed by Congress in order to better enforce the 14th Amendment.

Civil Rights

  • Constitutional protections from discrimination against groups of people.
  • 1960s civil rights movement: Struggle for social justice and equality for blacks and minorities in the U.S.

Brown v. Board of Education (1954)

  • Unanimous Supreme Court opinion overturned Plessy.
  • Segregation is detrimental; creates a sense of inferiority in African American students.
  • The Court relied on social science because the Fourteenth Amendment was not necessarily intended to abolish segregated schools, and the Court sought a unanimous opinion.

Campaign for Civil Rights

  • Sit-ins and freedom rides, voter registration efforts.
  • Martin Luther King Jr., Rosa Parks—Montgomery bus boycott.
  • From nonviolent civil disobedience to the “long, hot summers” of racial violence (1964–1968).

Letter from Birmingham Jail

  • Demands the fulfillment of the 14th Amendment’s equal protection clause and defends non-violent strategy to oppose racism.

Segregation in Public Accommodations

  • Courts decided that “de jure segregation” affected interstate commerce, therefore Congress had the right to outlaw it.
    • Civil Rights Act 1964
    • Heart of Atlanta Motel v. US
    • Voting Rights Act 1965
    • Civil Rights Act of 1968
    • 24th amendment

Desegregation v. Integration

  • “De facto segregation” is the separation of groups that happens even though it is not required or sanctioned by law.
  • Swann v. Charlotte Mecklenburg (1971): remedies may include racial quotas, redrawn district lines, and court-ordered busing.
  • Inter-city busing could be authorized only if both the city and the suburbs had practiced “de jure segregation” in the past.
  • Busing remains controversial.

Women’s Rights Movement

  • National Organization for Women
  • Demand equal protection clause protections for women

Pro-Life Movement

  • A social movement to restrict and recriminalize abortion.
  • Has found success in a variety of restrictions at both the state and federal level.

Title II of the Civil Rights Act of 1964

  • SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.
  • (b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:
    • (1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
    • (2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
    • (3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
    • (4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

Equal Employment Opportunities - Title VII CRA 1964

  • Employer practices: It shall be an unlawful employment practice for an employer—(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
  • Employment agency practices: It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.

Government Responses to Social Movements

Standards of Judicial Review

  • The Court uses different standards of judicial review to determine the constitutionality of policies that treat people differently based on some characteristic.
    • Strict Scrutiny
      • Government must prove a “compelling interest” and show that the law is “narrowly tailored” to justify the unequal treatment.
      • This is a very high standard; when the Court uses strict scrutiny, the law is usually struck down.
      • Used for cases involving race.
    • Intermediate Scrutiny
      • Government must prove that the unequal treatment is serving important government objectives.
      • Used for cases involving gender.
    • Rational Basis
      • Government only needs to prove the law is reasonable; these laws are almost always upheld.
      • Used for cases involving age.

Women’s Rights Movement

  • The National Organization for Women was the leading interest group in the push for women’s rights in the 1970s and helped secure the passage of legislation.
  • Supported an Equal Rights Amendment that passed both houses of Congress and was ratified by 35 states. However, 38 states (3/4 of the states) are required, so the Equal Rights Amendment did not pass.

Key Legislation for Women's Rights

  • Equal Pay Act of 1963: Guaranteed equal pay based on gender.
  • Title IX of the Education Amendments of 1972: Prohibited gender discrimination by schools receiving public funds.
  • Civil Rights Act of 1964 (Title VII): Banned gender discrimination in public accommodations and employment.

Civil Rights for People with Disabilities

  • Social movement in the 1970s and 1980s that culminated in the passage of the Americans with Disabilities Act of 1990.
  • The ADA required states to modify public buildings to provide access for disabled persons and banned employment discrimination against people with disabilities.
  • ADA Amendments Act of 2008: Expanded the definition of “disability.”

LGBTQ+ and the Constitution

  • Bowers v. Hardwick (1986): Georgia was allowed to ban “homosexual sexual activity.”
  • Romer v. Evans (1996): Colorado voters had adopted a state constitutional amendment making it illegal to protect persons based on “gay, lesbian or bisexual orientation;” the Court overturns it.
  • Lawrence v. Texas (2003): The Court overturned a Texas law banning sexual conduct between persons of the same sex (overturned Bowers case).

LGBTQ+ and Marriage

  • Hollingsworth v. Perry (2013): Banning same-sex marriage to be unconstitutional
  • United States v. Windsor (2013): Found provisions in the Defense of Marriage Act unconstitutional.
  • Obergefell v. Hodges (2015): Treating same-sex marriages differently, or banning them entirely, violated the 14th Amendment (natural rights of life and liberty).

Bostock v. Clayton County (2020)

  • Facts: Gerald Bostock, a gay man, began working for Clayton County, Georgia, in 2003 and received positive performance evaluations and numerous accolades. In 2013, Bostock began participating in a gay recreational softball league. During a meeting in which Bostock’s supervisor was present, at least one individual openly made disparaging remarks about Bostock’s sexual orientation and his participation in the gay softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed. Shortly afterwards, Clayton County terminated Bostock allegedly for “conduct unbecoming of its employees.” Within months of his termination, Bostock filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).
  • Question: Does Title VII of the Civil Rights Act of 1964, which prohibits against employment discrimination “because of . . . sex” encompass discrimination based on an individual’s sexual orientation?
  • Holding: By a 6-3 majority, the Court held that an employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964.
  • Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin.” Looking to the ordinary public meaning of each word and phrase comprising that provision, the Court interpreted it to mean that an employer violates Title VII when it intentionally fires an individual employee based, at least in part, on sex. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex—the very practice Title VII prohibits in all manifestations.

Affirmative Action

  • Affirmative action: preferential hiring and admission practices to remedy discrimination, leading to “Equality of Opportunity” debates.
  • Bakke (1978): numerical minority quotas are not permissible, but race can be considered.

Affirmative Action Cases

  • Gratz v. Bollinger (2003): overturned a University of Michigan admissions policy that gave “bonus points” to Black, Hispanic, and Native American applicants to the undergraduate program.
  • Grutter v. Bollinger (2003): upheld a University of Michigan Law School admissions policy that used race as a “plus factor” but not as part of a numerical quota.
  • Fisher v. University of Texas (2013 & 2016): did not reverse its ruling in the Grutter case. It is still possible to have an affirmative action plan in making college admissions decisions.