Table of Contents

PRIVILEGES AND IMMUNITIES.................................................................................................................3

2. The Slaughterhouse Cases (1873)...........................................................................................................................3
3. Bradwell v. Illinois (1873) (Miller)...........................................................................................................................4
4. Minor v. Happersett (1874).....................................................................................................................................4
STATE ACTION REQUIREMENT & SEPARATE BUT EQUAL DOCTRINE.........................................................5
5. Civil Rights Cases (1883) (Bradley)..........................................................................................................................5
6. Plessy v. Ferguson (1896) (Brown)..........................................................................................................................6

MODERN LAW OF EQUAL PROTECTION..........................................................................................8

RACE: Racially-Segregated Public Education............................................................................................8
7. Brown v. Board of Education (1954).......................................................................................................................9
8. Brown II (1955)........................................................................................................................................................9
RACE: Race as a Suspect Classification...................................................................................................10
9. United States v. Carolene Products Co. (1938) (Stone).........................................................................................10
10. Korematsu v. United States (1944) (Black)..........................................................................................................11
11. Loving v. Virginia (1967) (Warren).......................................................................................................................12
RACE: Affirmative Action.......................................................................................................................12
12. Regents of the University of California v. Bakke (1978) (Powell).........................................................................13
13. Grutter v. Bollinger (2003) (O’Connor)................................................................................................................13
14. Parents Involved in Community Schools v. Seattle School District No. 1 (2007) (Roberts)..................................15
15-18. Students for Fair Admissions (2022)..............................................................................................................15
SEX: Development of Intermediate Scrutiny for Sex-Based Legislation...................................................17
19. Reed v. Reed (1971) (Burger)..............................................................................................................................17
20. Frontiero v. Richardson (1973) (Brennan)...........................................................................................................17
21. Craig v. Boren (1976) (Brennan)..........................................................................................................................18
SEX: Pregnancy and Statutory Rape.......................................................................................................19
22. Geduldig v. Aiello (1974) (Stewart).....................................................................................................................19
24. Michael M. v. Superior Court (1981) (Rehnquist Plurality)..................................................................................20
SEX: The Military...................................................................................................................................20
25. Rostker v. Goldberg (1981) (Rehnquist)..............................................................................................................21
SEX: Sex-Segregated Schools.................................................................................................................22
30. Vorchheimer v. Sch. Dist. (3d Cir. 1976)..............................................................................................................22
32. Mississippi University for Women v. Hogan (1982) (O'Connor)..........................................................................23
33. United States v. Virginia (1996) (Ginsburg).........................................................................................................23
Sexual Orientation (ONLY UNDER EPC)..................................................................................................24
35. Romer v. Evans (1996) (Kennedy).......................................................................................................................25
36. Windsor v. United States (2d Cir. 2012), aff’d (2013)..........................................................................................25
Alienage and Poverty............................................................................................................................27
37. Bernal v. Fainter (1984) (Marshall)......................................................................................................................27
38. San Antonio Independent School District v. Rodriguez (1973) (Powell)..............................................................28
Age and Disability..................................................................................................................................29
39. Massachusetts Board of Retirement v. Murgia (1976) (per curiam)...................................................................29
40. City of Cleburne v. Cleburne Living Center (1985) (White)..................................................................................31
Facially Neutral Rules and the Requirement of Discriminatory Intent....................................................31
41. Washington v. Davis (1976) (White)....................................................................................................................32

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 42. Personnel Administrator of Massachusetts v. Feeney (1979) (Stewart)..............................................................32

SUBSTANTIVE DUE PROCESS/FUNDAMENTAL RIGHTS..................................................................34

ECONOMIC REGULATION: Freedom of Contract.....................................................................................34
45. Lochner v. New York (1905) (Peckham)..............................................................................................................35
46. Muller v. Oregon (1908) (Brewer).......................................................................................................................36
ECONOMIC REGULATION: Decline of Judicial Scrutiny over Economic Regulation...................................37
47. Nebbia v. New York (1934) (Roberts)..................................................................................................................37
48. West Coast Hotel v. Parrish (1937) (Hughes)......................................................................................................38
49. Williamson v. Lee Optical Co. (1955) (Douglas)...................................................................................................39
FAMILY & THE BODY: The Early Cases....................................................................................................40
50. Meyer v. Nebraska (1923) (McReynolds - big supporter of Lochner)..................................................................40
51. Pierce v. Society of Sisters (1925) (McReynolds).................................................................................................40
52. Griswold v. Connecticut (1965) (Douglas)...........................................................................................................42
FAMILY & THE BODY: Marriage and Parenthood....................................................................................43
53. Zablocki v. Redhail (1978) (Marshall)..................................................................................................................44
54. Michael H. v. Gerald D. (1989) (Scalia) (plurality)................................................................................................45
FAMILY & THE BODY: Sexual Orientation and Privacy............................................................................46
55. Bowers v. Hardwick (1986) (White).....................................................................................................................47
56. Lawrence v. Texas (2003) (Kennedy)...................................................................................................................48
FAMILY & THE BODY: Same-Sex Marriage..............................................................................................50
57. United States v. Windsor (2013) (Kennedy)........................................................................................................50
58. Obergefell v. Hodges (2015) (Kennedy)...............................................................................................................51
FAMILY & THE BODY: Abortion..............................................................................................................53
59. Roe v. Wade (1973) (Blackmun) 7-2....................................................................................................................53
60. Planned Parenthood v. Casey (1992) (O’Connor) (plurality opinion)..................................................................54
61. Dobbs v. Jackson Women’s Health Organization (2022) (Alito)..........................................................................56

CONGRESS POWER TO ENFORCE 14A...........................................................................................59

62. City of Boerne v. Flores (1997) (Kennedy)...........................................................................................................59
63. United States v. Morrison (2000) (Rehnquist).....................................................................................................60
64. Nevada Dept. of Human Resources v. Hibbs (2003) (Rehnquist).........................................................................60
65. Coleman v. Court of Appeals of Maryland (2012) (plurality opinion) (Kennedy).................................................61

INCORPORATION OF BILL OF RIGHTS AGAINST THE STATES..........................................................62

66. District of Columbia v. Heller, 554 U.S. 570 (2008) (Scalia).................................................................................62
67. McDonald v. City of Chicago, 561 U.S. 742 (2010) (Alito)....................................................................................63
68. New York State Rifle & Pistol Association, Inc. v. Bruen (2022) (Thomas)...........................................................64

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 Introduction to the Post-Civil War Amendments
amend. XIII:
1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place subject to their jurisdiction.
2. Congress shall have power to enforce this article by appropriate legislation.
 No state action requirement; Slavery shall not exist (not states can’t pass laws).
 Doesn’t mention race.
 Hasn't turned out to be that powerful; court view = just ends chattel slavery, not guarantee of
freedom.
o Alternative reading (via Slaughterhouse): doesn't just end slavery it guarantees freedom. But
not all that successful (see dissent CRC) b/c above narrowing.
amend. XIV:
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside [birthright citizenship; Harlan in CRC]. No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
 Birthright citizenship: born in US, automatically a citizen (initially natives were not considered
"subject to jurisdiction"). This overruled Dred Scott.
 Speaks of PERSONS (not just citizens)  so LPR protected
EPC is equality, DP is liberty. DP and EPC have diff relationships w/ history
 EPC all about BREAKING from history (racism, gender discrim)
 In contrast, DP is about building on history; disputes = how to interpret history
FOR TEST: How to apply DP/EPC? How determine when implicated?
 H: both can be implicated  EPC b/c distinction b/t groups, and DP b/c of fundamental right.
 An ordinary § is just subject to RB under either of them. IF class-based, then could be SS or IS under
EPC, but RB under DP  you don't hear about DP b/c who cares about the RB analysis
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

amend. XV:
1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State
on account of race, color, or previous condition of servitude.
2. The Congress shall have power to enforce this article by appropriate legislation.

Frameworks to apply things to state/gov

o 14A by its terms is about states; so court uses DP of 5A to say 14A guarantees apply to fed gov
o BoR by its terms applies to fed gov; so court uses DP of 14A (Liberty) to say those apply to states
o When state violates BoR, they are violating liberty/DPC of 14A
o When fed violates BoR, they are just violating that right (1A, 2A, etc)
Challenging something fed did is under DP clause of 5A; state did is under DP clause of 14A

PRIVILEGES AND IMMUNITIES

2. The Slaughterhouse Cases (1873)

 P&I of 14A only protects legal rights associated w/ federal citizenship, not those that pertain to state
citizenship
Law = 1 slaughterhouse, open to any butcher for $. Prohibited other slaughterhouses. State using police
powers to keep gross stuff out of city. Law fine, butchers lose.

P: Creates involuntary servitude forbidden by 13A.

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 Why did butcher's think violated involuntary servitude (13A)? b/c broad interp, read 13A to mean it
doesn't just end slavery it guarantees freedom. And part of that right is to slaughter cows in your
own backyard.  NOPE. More narrow view of 13A.
P: Abridges P&I of citizens of US
 Ct: P&I clause by its texts protects ONLY fed citizenship.
o There may be P&I state citizenship, but there’s only constitutional issue w 14A if fed
citizenship being infringed.
o What are the P&I of fed citizenship? Narrow. Persons ability to access fed gov, or areas of fed
exclusive control, e.g. specific stuff: assembly & petition to DC, navigable interstate waters,
habeus corpus, fed treaty rights, etc.
 ability to pursue butchering does not owe its existence to fed gov = not fed P&I
P: Denies to Ps equal protection of laws & deprives of property w/o due process, contrary to 14A
 reject EPC & DPC b/c they’re about racial justice, and you white butchers not bringing a race claim

Dissents  Draws on natural law; After 14A, fed citizenship is one that matters. Anything you think is
important marker of you being a full & free citizen, that is a part of fed citizenship
 14A protects citizens of US against deprivation of their common rights by STATE legislation

Distinction b/t majority & minority  What did civil war mean? Majority: states still basically in charge, w/
fed in charge of some things; minority: no, fed gov in charge of more things

3. Bradwell v. Illinois (1873) (Miller)

 female practice law? No
*decided on same day as Slaughterhouse. Makes Slaughterhouse main case, this one secondary.
IL SC denied P license to practice law b/c female. P sued, based on 14A P&I protections. No, denial fine.
Court relies on narrow P&I reading; saying that you can be admitted to the bar w/o being a US citizen
 Only specific rights protected by fed citizenship are w/i P&I.
 Right to practice law = state decision, so w/I state control (not protected by fed P&I)
Why didn't P make EPC claim? b/c at the time, only race based claims covered by EPC

Concurrence = women aren't really fit for lawyering. Why did Bradley make this concurrence?
 Bradley dissents in Slaughterhouse, he thinks Butcher should win. SO, he needed to dissent to explain
why this doesn't jive w/ his Slaughterhouse argument. His argument is basically that P is a woman so
no P&I (even when constitution says people they really meant “men”); legit only difference b/t
butchers and this. Would disrupt the whole social structure.
 Also, reading separate spheres INTO the constitution; Reading personal opinions into constitution
o Unmarried or women w/o child: exceptions, doesn’t matter that much
 Mutual benefits argument

4. Minor v. Happersett (1874)

 female vote, no
P attempt to register to vote; denied. Sued, arguing W enfranchised b/c right to vote is P&I of fed citizenship
(New Departure argument).
NOPE. Voting = NOT federal P&I.
 Narrow reading of 14A P&I.
 Long tradition of states not giving right to vote AND § 2 of 14A (which gives consequence if deny vote
to some males, so obv states can deny) AND why need 15A (guaranteeing vote regardless of race) if
voting P&I?

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  14A § 2 first time MALE mentioned in constitution! H: "why not before"  b/c at ratification, no
worries that "we the people" meant just M. Now, the W’s movement is making that a possibility, so
need to be explicit w/ gender.

Minor inconsistent w/ Slaughterhouse? Minor consistent w/ Slaughterhouse?

 This is exactly accessing fed gov  Long history of states denying ppl vote 
What's more important: right to vote in fed right to vote is not P&I of fed citizenship
elections or navigable waterways?! So, voting does o Narrow reading of P&I, not
seem to be an access to fed rights, yet the SC says disruptive, using history before Civil
"no" War to figure out P&I
after § 2 of 14A it's hard to see how W could be
enfranchised; C obviously thought they weren't
enfranchising W via 14A section 2
 SC keeping status quo

Still good law  the federal constitution guarantees no one the right to vote; all that con does is prohibits
certain grounds for disenfranchisement (e.g. 14A for race, 9A for sex, but no one has affirmative right to
vote)

STATE ACTION REQUIREMENT & SEPARATE BUT EQUAL DOCTRINE

 State action doctrine = still in place today

 Separate but equal doctrine = NOT in place today

5. Civil Rights Cases (1883) (Bradley)

 state action requirement
§ 1& 2 of Civil Rights Act of 1875 = made illegal to discrim against ppl b/c of race in inns, public conveyances,
theaters, public amusement, etc. C said it could do this b/c of § 5 of 14A saying had power to enforce via
legislation. Ppl prosecuted; responded by challenging constitutionality of statute. Strike down 1875 CRA, §
exceeded Congress’s authority.
14A 13A
Point 1: 14A does NOT prevent private discrim, just Leg enforcing 13A can be direct (no state action
prohibits discriminatory state action req), but has to be focused on abolishing "badges
Point 2: b/c of point 1, this does NOT give C power and incidents" of slavery.
to go after individuals through legislation to enforce  denial of admission to inn, public
14A. Thus, act exceeds C's power by going after conveyance, places of amusement NOT a
individuals. badge of slavery. 13A based on distinctions
 To act, C needs to wait until state law passed. C related to slavery, not race/class/color.
can't make general legislation; leg has to be SC: 13A only prohibits actual chattel slavery. SC
corrective. This leg = primary & direct reasons from Antebellum baseline (what we did
 Wrongful acts of individuals = private wrong & before, we can keep doing it)
ppl wronged need to ask state for redress  H compares to reasoning in Minor (re women).
. . . this depends on the assumption that state is Court does NOT take this to be disrupting the past,
going to help you! just going status quo.

What are the practical implications of this decision?

5
  Private actors can still discriminate, and that can be as bad as state discrim b/c private actors have
power over ppl’s lives. e.g. job prospects, hotels.
 In "theory" states can't pass discriminatory laws; BUT if ppl can privately discriminate, lots of ways
you can still be discriminated against; and when it’s pervasive enough, don’t need laws that discrim.

More on 13A: "Special favorites"  How could SC think protecting black ppl from race discrim. = treating
them as special favorite?
 B/c of status quo approach; we're "favoring" you b/c we're not saying no one can discrim against
white ppl. We're not doing this for white ppl!
 Court declares slavery is done! This is just 18 years after civil war ended (slavery lasted 100s of yrs).
 (-) the fact that ppl being prosecuted means race discrim still ongoing problem, black ppl still denied
access to things; what ct meant by “special favoritism” is actually just accessing basic modes of life;
white ppl are the ones controlling railroads itself is evidence of product of slavery & white supremacy

Dissenting (Harlan) Majority ignoring substance and spirit of 13/14A.

14A 13A
 Big hook for MAJORITY is: "no state shall  One core feature of slavery is no protection
make or enforce any law" so limit on STATE against race discrim/white supremacy.
power.
o some entities (e.g. railroad) are so Majority says 13A just ends slavery. The 13A ends
heavily regulated that they should slavery and establishes FREEDOM. Need to make
count as state actors sure that it not just ends slavery, but establishes
 Birthright citizenship clause: everyone born that ppl are free. A far more robust version of 13A.
in US is a citizen of US. Not that it prohibits
all kinds of race disrim, BUT there’re things
so core to being free & full citizen. C has
authority to make sure you can exercise
rights as full citizen.

 P&I connection? H said that you could view this as P&I argument (baseline of citizenship/freedom
that everyone should get), just not explicitly P&I (since that has already been squashed)

Ultimately Congress cited Commerce power for 1960 Civil Rights Act which prohibits private discrim (Heart
Atlanta Hotel).

6. Plessy v. Ferguson (1896) (Brown)

 "separate but equal"
LA § required railroads to provide separate but equal ACM for white & POC. Plessy, who was 7/8 white,
challenged 1) constitutionality under 13/14A and 2) challenged LA's classification of him as POC. UPHELD.
14A 13A
14A only guarantees equality of political rights Narrow interp of 13A. Loses b/c not chattel slavery.
NOT social rights; 14A designed to enforce equality § nothing like involuntary servitude as SC defines
of races b/f law BUT it not intended to abolish
distinctions based upon color/enforce social
equality in human interaction
 Diff b/t laws that interfere w/ political
equality (e.g. voting, sitting on jury laws) vs

6
 laws like this requiring separation (fine)
o Ct defining public transportation,
school as social right
 No slippery slope (protestants/Catholics);
law is reasonable & based on customs &
traditions (status quo)

This isn’t even inequality b/c all in your head:

majority says black ppl are not actually inferior, and
that is just black ppl thinking they subordinate
 (-) if law is not to enforce inferiority, WHY
would they have it; white ppl actually
control resources & pass laws

POC classification
 should be determined by the state
 state differs as to the amount they apply (e.g. one drop rule)

Consequences of this: Plessy not only upholds “separate but equal” but also:
 allows states to reg who is black and define it as capaciously as they want (can look W, but still be B)
 Determining who is B/W & W supremacy: one drop rule institute white supremacy
o It's crucial for one-drop rule during slavery, b/c all the kids born to slave owners by slaves
needed to be "black" to continue enslaving them. One drop rule reinforces "purity" 
whiteness is precious, everything else is contamination

Dissenting (Harlan) leg inconsistent w/ BOTH quality of rights pertaining to citizenship (state & national) AND
personal liberties enjoyed by everyone in US
 13A: does not just eliminate involuntary servitude, also any depravation of any right necessarily
inhering freedom AND the imposition of burdens that constitute badges of servitude
 EVERYONE KNOWS this law degrades black people, duh.
 Slippery slope: WHAT ELSE can they require to separate - protestants and Catholics?
“our constitution is color blind.” What does colorblindness mean for Harlan?
 Not social equality. Still thinks whites will be supreme for "all time" b/c of meritocracy  BUT, US
can't ingrain that standard through explicit racial laws. i.e. you don't need to have race in the law, b/c
society will still be racist
 Harlan is committed to white supremacy, but no "caste" in US.  no legally created underclass.
Why do we think Harlan's dissent is so celebrated then?
 He is the ONLY justice to dissent (and everyone thinks Plessy is bad)
 He had also been a slaveholder, so showing some personal growth

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MODERN LAW OF EQUAL PROTECTION
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
 5A = fed law; 14A = state law; analyzed using SAME case law
 EPC: EQUALITY! Breaking from history!

STRICT SCRUTINY INTERMEDIATE SCRUTINY

- race – explicit sex specific sate action
NARROWLY tailored to achieve COMPELLING gov IMPORTANT state interest; SUBSTANTIAL
interest. Virtually NONE survive. relationship. Less rigorous than SS.
 Both compelling gov interest and narrowly  Fight is usually about substantial
tailored are fights relationship (and NOT gov interest)
Only 2 compelling interests recognized: Substantial relationship?
o diversity in public higher ed o sex-based § has connection to body = fine
o remedying own past actions (probably w/ (b/c differences b/t sexes)
court order discrim (Parents Involved) o sex stereotype = NOT fine
Two ways to trigger SS: Diff versions of IS:
1. Classification (race, alienage) o Michael M = weak (accept interest)
a. Alienage = political exception RB o Craig & VMI = rigorous (VMI = probe state
2. Impermissibly interferes w/ fundamental purpose)
right o Rosker = popularity pull!
Does § draw explicit distinction based on class? If Y, then SS (race/alienage) or IS (sex) (above)
If § facially neutral, but disparate impact? Then Washington/Feeney-world (below)
If § explicitly discrims based on race = SS If § draws explicit sex-based distinctions = IS
If § is facially neutral w/ respect to race, but has If § facially neutral w/ respect to sex, but has
disparate impact on members of racial group = disparate impact on members of sex group =
rationale basis rationale basis
 UNLESS Ps can show discriminatory intent =  UNLESS Ps can show discriminatory intent =
strict scrutiny Intermediate scrutiny
Ps have burden of proving disparate impact AND discriminatory intent (law must be adopted BECAUSE OF,
not in spite of = explicit animus)
RATIONAL BASIS RATIONAL BASIS +
Upheld if can come up w/ ONE reason why enacted One bad apple taints WHOLE barrel
(in a sea of bad arguments)  Only used to strike stuff DOWN
 VERY generous standard  Does NOT embrace post hoc
 Post hoc fine  Not that common: Cleburne, Romer, some
 States don’t have to address all problems sex orientation cases . . .
 Applies to: laws related to economic activity  Court has never said applying RB+.

Can states no longer draw distinctions b/t people? No, § need to distinguish b/t ppl, for example, those who
know how to drive, those who don't. THUS, diff standards of review
Under EPC jurisprudence, explicit race/sex-based § gone. Now fight is really under statutes (Title VIII)

RACE: Racially-Segregated Public Education

8
History: NAACP chose to target grad schools first, b/c less explosive than elementary. When NAACP went
after elementary (Brown) had to decide if going to argue Plessy violation (not equal) OR argue that racial
segregation was ALWAYS unconstitutional (even if "equal"). Thorogood Marshall went #2 b/c
 Wanted to avoid district by district litigation, too time/resource consuming
 Momentum for black community: status of black improved after WII & economic bloom; Integration
in military; Voting power of black ppl in north; US’s cold war agenda makes racial segreg a national
embarrassment

7. Brown v. Board of Education (1954)

 overrules Plessy. explicit racial segregation in public ed violates EPC
Black kids denied admittance to pub schools; laws in each case required/permitted seg according to race.
Laws struck down. Looked @ adoption of 14A  determine record inconclusive
Case diff b/c cannot rest on tangible factors (= pay, curricula, etc.  b/c evidence W/B schools have
equalized) instead need to look at effect of segregation itself on public education. Since Plessy, grad cases
have looked @ intangible factors (ability to study, engage in discussion) and found impact on students.
 Also true in elementary: Separating kids just b/c of race "generates feeling of inferiority as to their
status in community that may affect their hearts & minds in way unlikely ever to be undone"
impact bigger when force of law, b/c law is denoting black kids inferior; affects motivation to learn

Why Warren want unanimous opinion? Knew it’ll be highly controversial, so speak in unanimity and don’t
create dissent that resistors can hold up.
Generally neutral (non-legal) tone. Why?
 Short opinion (designed to be published in full). Toned down. This is just the "way it is" (not
politicize); don’t want to inflame gen pop; Warren politically savvy
 Still getting votes for unanimous opinion. SC wants united front; SC knows Brown will be unpopular,
so no dissent for Brown's critics to rest arguments on

What's Brown's explanation for why Plessy is a mistake?

 Brown says Plessy didn't have the knowledge we have now (Court didn't realize how bad segregation
was)  fn 11 (H: OF COURSE Plessy ppl knew implications)
 Why didn't just say racist BS? B/c more inflammatory. This way, anyone who supported segregated
school is not in support of white supremacy  these ppl just didn't have access to the relevant info

Let’s assume 14A history does allow for segregation, can Brown still be upheld?
 Yes, if you’re not an originalist. Brown is tricky for originalists to reconcile (no one wants to be on the
wrong side). H: argument is typically that you have to look at meaning in broader generalities about
"equality"

Is Brown limited to segregation in public schools or broader?

 Only applies to ed: b/c wording of pub ed so present; & “formation/impact” on kids (so ed related)
 Broader than ed: repudiates Plessy (about trains), but reasoning like Plessy & Brown are paired
H: elements of both. Brown is just about harms in ed; but Brown suggests start of end of Jim Crow. SC strikes
down segregation in parks, playgrounds, amusement parks, etc. after Brown w/o opinions (per curiam)
 In retrospect, case read to prohibit seg in public institutions (more than ed) (see per curiams)
o Meaning of SC decision is often decided in retrospect

8. Brown II (1955)
 most famous for quote that desegregation should happen via district courts w/ "all deliberate speed" =
leaves process of desegregation to district courts

9
School authorities have responsibility for solving these problems; courts will then consider whether school
action constitutes good faith implementation constitutional decision; Local courts best to do this
 When reviewing, courts should be guided by equitable principles: "practical flexibility in shaping its
remedies and by a facility for adjusting and reconciling public & private needs"

Why didn't courts just say, END IT NOW?

 practical reasons in south, only spending $ on W students. SO if going to desegregate, need to
build new schools basically
 Think of Marbury, talk big but avoid situation when decision will be disobeyed. (SC cares only about
itself in its legitimacy) Trying to assert authority w/o it being undermined. So grand proclamation of
judicial review, but don't issue writ b/c Madison would have ignored it. Same here = don't issue an
opinion that can be defied

Was it right to NOT immediately desegregate schools?

 (+) SC preserving its capital after spending a lot in Brown I.
 (-) the only reason deseg happened was LBJ Eisenhower 2yr later, if SC had more confident in
national gov then deseg would’ve happened sooner.
SC’s role
 For approximately 10 years after desegregation, NOTHING happened in south (until LBJ). Some use
this as an example that courts can't really effect change, and it instead has to be through policy &
social movement
 Backlash theory
o Brown provoked backlash & made things worse by enraging the white south & encourage the
white leaders to resist even slightest change to the status quo. Point to career of Bull Conner
 Birmingham, AL (water hose guy)
 Double backlash theory
o Brown did create backlash empowering white supremacist, but the violent backlash so
outrageous that ultimately push more moderate, previously passive white to support civil
rights movement

Some think NAACP should have done Plessy violation instead:

 (+ Plessy) If separate but equal violation then more $$ could have funded black schools; $$ would
have been paid b/c south wanted segregation so bad; created middle-class positions for black
teachers. In contrast Brown doesn't actually end segregation IRL; seem lowering the stakes, seems
less risky; realistically cant avoid district by district litigation
 (-) district by district litigation cost too much time & resource

RACE: Race as a Suspect Classification

How SC applied EPC to racial discrim / distinction  SSR

9. United States v. Carolene Products Co. (1938) (Stone)

 fn 4: Ct suggests more scrutiny might be needed in some situations
Whether Filled Milk Act (prohibits shipment in interstate commerce of skimmed milk combined w/ fat/oil
other than milk) transcends power of C to reg commerce OR infringes 5A?  case is most notable for "fn 4",
where Stone wrote SC would exercise a stricter standard of review when a law 1) appears on its face to
violate a provision of Const, 2) restricts political process in a way that could impede the repeal of an
undesirable law (disseminating info, interference w/ political orgs, peaceable assembly), or 3) discrims
against "discrete and insular" minorities (religion, national, racial).

10
RBR is default / appropriate for most legation. Why more scrutiny appropriate for some?
 In general, under EPC, if you don't like a law, go to politics to get it fixed. BUT, with religious,
national, racial stuff politics might not work, so they need the courts help.
 Political process theory: in general court should leave fights about what law should be to politics,
court will intervene when political process don’t work well

What does "discrete and Why might discrete/insular minorities WHY would political process
insular" minorities? lose in politics? theory mandate court
 Discrete = easily  By definition numerical minority, involvement in more than just
identifiable groups be outvoted (racially polarized insular & discrete minority?
 Insular = cut off; in voting), less political power  diffuse minorities? Pressure
own communities  less likely to "win" allies to stay in closet (LGBTQ)
 geographically in one area  diffuse majorities? Hard to
 Facilitate discrim: you're black coordinate power
everywhere you go; easy for white  Also, court would need to
legislature to put costs there have a theory of when
 Circular. Politics started this, not politics "doesn't work" (-)
solution; would need to have
 IRL disenfranchised substantive opinion on what
politics should do

10. Korematsu v. United States (1944) (Black)

 SS. Ct applies especially rigorous scrutiny to laws & official practices that limit the civil rights of a
single racial group
American CITIZEN of Japanese descent, convicted for remaining in "military area" of CA (directed all persons
of Japanese ancestry excluded from area). NO questions re petitioner's loyalty. Similar to Hirabayashi curfew
= so uphold.
 SC: "all legal restrictions that curtail the civil rights of a single racial group immediately suspect" &
most rigid scrutiny, BUT not all unconstitutional  pressing public necessity might justify the
existence of restrictions, but racial antagonism never can
o This military order based upon an executive order that required "every possible protection"
against espionage  matter of pressing public necessity. Not at all like concentration camps;
we’re at war ppl! And NOT race based; war based.

Court concludes that exclusion order was matter of pressing public necessity. Why?
 Military said so! What evidence does military have: No evidence to show Japanese Americans
generally disloyal. No explanation as to why it waited so long after pearl harbor. And only applies
to Japanese not german/Italians. BUT military can't tell in advance who is loyal or not loyal &
Japanese have "close knit culture" . . . but takes forever to apply (so not urgent application) and
doesn’t apply in HI
What does this reveal about +/- of relying on military for assessing national emergency?
 (+) military has expertise; military not gonna say everything; military & gov always gonna have more
information so structural advantage
 (-) Military not trained to protect const rights; trained to prioritize security over liberty; not at war
anymore, ct has more authority on constitution; need for confidentiality can also be a cover for not
having information

11
Court concludes that exclusion order was not motivated by racial antagonism. Why?
 Not b/c of race; b/c we are at war w/ Japanese empire. Basically, court doesn't really have an
account for why, but that is what military says, and military says it's not racial

Court has later said case was wrong day it was decided. What does that mean?
 Not wrong in hindsight, justices should have done a different opinion THAT day (not now, w/ our
"greater" knowledge, a la Brown). 3 dissents, so they knew.
 H: would been surprising if SC went against military (during war). Maybe different outcome post-war.
SC often unwilling to take on executive during nat’l emergency

Concurring (Frankfurer + Roberts) Power of war is power to wage war successfully. Validity of this action
must be judged w/I context of war.

Murphy dissent  FIRE!!! SO GOOD!  Racism! For this to be fine, the depravation must be reasonably
related to a public danger that is so immediate, imminent, and impending as not to admit of delay and not to
permit the intervention of ordinary constitutional processes.  Obviously this does not fit

Jackson, dissenting Military orders are a slippery slope; we put military ideas into case law forever!

11. Loving v. Virginia (1967) (Warren)

 last case striking down Jim Crow (first = Brown) end b/c "explosive"
Interracial marriage. § language has interesting stuff about white & natives (white is white or white + 1/16
native blood (b/c of John Rolfe & Pocahontas' kids!). § violates EPC and DPC of 14A.
14A EPC State says "No discrim b/c everyone is punished the same." Why does court reject? Equal
application is not enough under 14A. Two separate arguments:
1. Objects to VA § on ground that it inappropriately classifies ppl according to race (anti class)
a. Loving + Korematsu = modern origin of strict scrutiny for race-based legislation
i. SC cites Hirabayashi & Korematsu for saying EPC demands statutes based on racial
classifications be subjected to rigid scrutiny, and are only permissible if the state
objective is permissible independent of racial discrimination. No legit purpose.
b. Why does SC think SS required for race-based statutes? Loving thinks race restricted marriage is a
core way to discrim by race and that is what 14A is trying to get rid of.
2. Protects/promotes white supremacy (anti sub)
a. Only prohibits interracial marriages that involve ppl that are white
i. No footnote about scientific studies. Here is the court saying "we know" the statute
designed to preserve white supremacy, we don't need a footnote
b. Lower court also upheld on racist grounds
14A DP  quick; freedom to marry = vital personal right

2 themes about whats violated EPC

**Anti-classification argument: bad to classify ppl Anti-subordination argument: EPC meant to undue
based on race, thus § should trigger EPC, b/c that is White supremacy; look at statutes that trigger
central concern of 14A = produces less cases. white supremacy, that means higher scrutiny;
matters less what statute actually draws distinction
but how it functions IRL
Both arguments cut same way in Loving . . . What happens when they diverge?? (affirmative action! SS
applies to AA. If anti-subordination prevailed, then SS maybe wouldn't apply to AA b/c brings down WS)

Does Loving mean that statutes that support white supremacy are unconstitutional under EPC?

12
  **No real answer given . . . but in retrospect, Loving reads as anti-classification decision. But solid
anti-subord case to cite for test.

+/- of 14A as a prohibition on gov action that supports white supremacy?

 (-): if read as entirety of EPC, could limit broader scope of 14A. Would male supremacy be x'd out?
 (+): many more statutes would be constitutionally vulnerable

RACE: Affirmative Action

o DIVERSITY in public higher education = compelling interest

o NOT compelling interests = remedying societal discrimination, providing role models

12. Regents of the University of California v. Bakke (1978) (Powell)

Program w/ certain # of seats reserved for disadvantaged students. Disagree on level of scrutiny; Ps say SS
reserved for things that disadvantage discrete/insular minorities (not this); R say anything race based (this).
 Medical school program unconstitutional b/c explicit race distinction  SSR & gov no compelling
interests in favoring POC over innocent whites
o EPC of 14A "cannot mean one thing when applied to one individual and something else when
applied to a person of another color" (b/c then wouldn't be equality)
 Cites Hirabayashi & Korematsu for idea that "racial and ethnic distinctions of any sort
are inherently suspect and" call for strict scrutiny
 harm on white applicants: Fewer seats available for whites to compete for; 16 white
students may not have been admitted
 BUT, AA would be constitutional IF
o (1) compelling gov interests
 e.g. attainment of diverse student body: academic freedom, special 1A concern,
schools have much leeway in designing academic environment. Diversity of views
important, but only ONE factor among many.
o (2) narrow tailoring
 Flexible pluses: No separate tracks/quota, seats open for everyone not reserved;
multiple ways to get a plus not just race; each person considered individually
 Powell’s more obscure program
o (+) harder to understand, harder to challenge, benefit everyone;
white individual cant complain; could reduce racial animosity
o (-) can impede democracy, more difficult to bring claims of real
discrim; very dependent on ppl making decision; no guarantee of
admission

P's "ask" to read restrictive view of 14A will result in problems:

 Majority/minority change over time, have to keep revisiting; disparate treatment inflames racial
tensions; hard to be consistent over time; reinforce negative stereotypes; “innocents” bear brunt
o Innocents = W students applying (counter: historical context of benefiting from being W)

Ct rejected these as compelling gov interests for AA

 Remedying societal discrim
 Promote role modeling that students have some teachers look like them
And many say AA actually harms its intended beneficiaries by subjecting them to stereotypes

ONLY 3 compelling gov interests recognized by ct

13
  Diversity
 Remedying your own past practice of discrim when still under ct order
 Prison race riot when you can temporarily separate out race

13. Grutter v. Bollinger (2003) (O’Connor)

 diversity = compelling interest, program fine; “critical mass”
MI Law school policy: diversity, no quota, but wants a "critical mass". Policy recognizes many possible bases
for diversity. UM law school was const. b/c narrowly tailored to further state's compelling interest in
diversity, not prohibited by EPC.
 Leaned heavy on Bakke; Reiterates that applying SS. Diversity fine interest.
o SC clarifies apparent confusion, says they’ve never held that the only gov use of race that can
survive strict scrutiny is remedying past discrimination.
 There’re many types of diversity, but here particularly singles out critical mass of underrepresented
racial and ethnic groups
o ppl described this not as #, but instead an amount that would benefit education for all
(wouldn't make ppl feel like token, would expose whites to variety of views)
 Defer to law school judgment
 Ties ed to citizenship (via Brown), & public higher ed should be accessible b/c law produces leaders.
 Narrowly tailored PRECLUDES quota system. But #s obviously part of "critical mass." HOWEVER, goal
of attaining critical mass does not transform into quota
o # of minority students varied every year; W student admitted w/ various forms of diversity
P: Michigan did not exhaust race neutral measures
 Nope. School doesn’t need to fundamentally alter (lottery, lowering GPA).
BUT!!! can't be forever. There has to be a sunset, or revisit, on this  25yr

Why is diversity a compelling state interest?

 (+) Breaks down stereotypes; enriches discussions; groups make better decisions, prepares students
for life in diverse society
 Mutual benefit; who primarily benefits? The white ppl who are learning from the whole group
o Whereas rectifying societal discrimination, providing role models, etc.: just one group
benefits (supposedly)
Why ct like diversity more and think different from remedying societal discrimination or providing role
models?
 NO bad actors & mistakes in diversity. So unlike remedying societal discrimination (where you'd
have to acquiesce to bad things), in diversity nothing is "bad"
 No need to reprimand anything; No time ticking for diversity
 Everyone benefits
 Anyone can be diverse b/c not linked to historically discrim
 Ed is particularly about diversity

Did Grutter really apply strict scrutiny since it upheld..? Why is diversity a compelling state interest (no real
reasoning given in Bakke) and WHY are we deferring to school's opinion on this (is deference strict scrutiny)?
 Korematsu said SS but it’s not really SS
 Deferring to university that diversity is important for ed relying on their expertise
o deferring b/c they agree. SC more deferential to law school b/c fancy law professor they
respect and can relate
Narrow tailoring?
 Like the + and all spots open.
 Another reason they say narrowly tailored is that it is limited in time  the timeline is a way of the
court expressing its discomfort w/ this.

14
Gratz v. Bollinger (2003) (Rehnquist)
Ps white; denied admission at MI undergrad. Had factors eval’d in addition to grades. Race added 20 points
to a score if someone was not white. MI undergrad program violated EPC. Not flexible.
 Automatic addition of 20pts (1/5 of needed for admin) is NOT narrowly tailored to achieve interest in
ed diversity. References Bakke; No flexibility of diversity elements; no individualized inquiry; race
decisive factor
 MI says volume of apps make it impractical for individualized. Too bad says SC. Admin challenges
don’t make it constitutional.
Combination of Grutter and Gratz is the SC allowing affirmative action in the most expensive and time
intensive method (so trying to limit affirmative action)

14. Parents Involved in Community Schools v. Seattle School District No. 1 (2007) (Roberts)
 diversity compelling gov interest limited to higher ed (K12 cant do AA unless open court order)
Seattle & Louisville school districts both had systems that evened-out the racial make-up of schools – student
assignment plan. Programs a response to racial housing segregation.  school AA plan lose.
 Seattle: ppl rank schools, then tiebreakers come into siblings & race. Seattle has NEVER OPERATED
segregated schools. A white child was denied the school that was best fit for him.
 Louisville: HAS operated segregated schools in past. Their plan has a min and max percentage of
black students. A white child was denied school closest to him.
School, who has NOT operated segregated schools, can’t classify students by race in school assignments.
Strict scrutiny standard. SC identified two interests that qualify as compelling state interests:
1. Remedying effects of past intentional discrimination
o Seattle never segregated; Louisville had fixed it
o Once litigation ends & consent decree closed  History erased cant do remedying
o No judicial finding of discrimination
2. Interest in diversity in higher ed
o These programs don't focus on broader aspects of diversity. Instead, just focus on race and
race IS the decisiveness factor in reaching a decision.
o Elementary & higher ed are not the same and thus strong reliance on Grutter wasn't good
Costs of this program are "undeniable"  cites Adarand and Croson about how these types of programs
promote ideas of inferiority. Cites Brown in support of striking this down.
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
 This is a case that reads Brown as don't classify kids on race

How does these programs promote inferiority?

 Unlike selective admissions, everyone is going to kindergarten. Yet, court is employing (top of p. 6)
the same "harms" of affirmative action arguments. . .
How is Parents Involved like or different from Grutter?
 (+) Both apply strict scrutiny; Race not the only factor; school say promoting diversity
 (-) Grutter recognizing diversity only in higher ed
o (-) diversity matter in k12 and important in formative years Brown; dealing w racial disparity
on the lower level and path to equality
 Parents involved makes no reference to critical mass
 Parents involved seems generally hostile to affirmative action

15-18. Students for Fair Admissions (2022)

 “eliminating racial discrimination means eliminating all of it”

15
Race based admissions in Harvard & UNC (giving ppl + simply for being underrepresented racial/ethnic
group). Schools lose.

Ct’s framing/recount of cases (setting up history of 14A exclusively about racial classification rather than
racial hiararchy)
 Brown: hamr of racial classification; against discrim b/t races; ed opportunity shouldn’t be affected
by explicit racial classifications
o What ct left out: racial segregation could operate to maintain racial hierarchy; Brown is about
the harm of racial segregation in the context of race based hierarchy; black ppl having sense
of inferiority (specifically b/c white supremacy and it doesn’t need to say why white ppl don’t
have this sense)
 Loving: 14A prescribes all individual racial classifications
o What’s left out: white supremacy. Loving’s 2 idea: 1. need to be particularly suspicious about
laws distinguish based on race; 2. EPC’s project is to undo white supremacy
 Harlan dissent in Plessy: no caste, no superior/dominant ruling class of citizen. constitution is color
blind, and neither knows or tolerates classes among citizens.
o Whats left out: Harlan said we don’t need race specific laws b/c we can maintain white
supremacy

SFFA did not explicitly overrule Grutter.

SFFA agreeing w Grutter: SFFA diverge from Grutter:
 EPC protects everyone equally, designed to  “eliminating racial discrimination means
promote racial equality eliminating all of it”  no difference b/t jim
 SS applies (If it applies to jim crow that crow & AA, it’s race discrim
harms POC, it applies to AA that benefits  Grutter explicitly deferential to university in
POC) diversity is crucial to their mission & Us are
o Compelling gov interests + narrow trying to phase out AA so limited time
tailoring frame; SFFA limiting deference given to U
o Remedying societal discrimination that judicial review decides constitutionality
NOT a compelling gov interest  Compelling gov interest
o SFFA says CANT rely on diversity in
court to survive SS b/c ct cant
assess it, cant judge whether sub
goals of diversity been met
 Narrow tailoring
o Grutter is you can take race into
account as one of the metrics of
diversity but not the only one &
everyone (white) benefit from
diversity; SFFA says it’s 0 sum,
giving underrepresented + = giving
overrepresented -, you cant
penalize ppl for their race

why race-based AA fails narrow tailoring

 Gorsuch concurrence: haven’t defined racial categories with appropriate precision; U’s racial
classifications don’t make sense, over broad & under defined
 System is 0 sum, harming white & Asian applicants based on race
 Thomas: AA harms its purported beneficiaries by stereotyping & treating them as if they act the same
way or have the same experience

16
  Kavanaugh: program lacks logical end & and runs indefinitely; if U runs it until diverse body, but then
ct cant assess it; if U runs till entering class mirrors demographic then its quota again.

Sotomayor dissent  the original intent of 14A & Brown is to promote actual racial equality & combat racial
injustice. Majority reading 14A against its original intent.
Went for the full force argument of remedying societal discrimination is compelling gov interest, at the core
of 14A.

Implications
 Applicability: SFFA applies to all public & private uni, colleges, but not to military academies
o Only selective schools governed by SFFA – top 200 (the other don’t have AA)
o UNC is public school directly governed by EPC, ct finds UNC violated EPC by giving applicants
a boost based on race/ethnicity
o Harvard is private but gets fed funding, Harvard cant practice AA giving certain racial group
boost b/c Title 6 1964 Civil Rights Act no fed money can go to institution that practices race
discrim
 Most striking thing about SFFA is no hesitation in applying the same definition of race
discrim in constitutional context as it applies in statutory context in Title 6
 Impacts:
o Cant consider race, but can have essays about individual experience and stories
 One step further in obscurity than Grutter’s check the box vs reserved seat quota
o schools will voluntarily change other admissions policies the disproportionally disadvantaged
minority applicants as a way of trying to make up for SFFA, e.g. some schools eliminated
legacy preference; some gives boost to first gen
o tons of litigations about what counts as race based AA what counts as race neutral admission

SEX: Development of Intermediate Scrutiny for Sex-Based Legislation

Intermediate Scrutiny / Heightened Scrutiny

19. Reed v. Reed (1971) (Burger)

 applies "rationale" basis test; but really probs higher
Child of couple died intestate; parents had competing administrator claims for his estate. § gives dad
preference over mom. Challenged for violating EPC. Law struck down b/c diff in sex for administrators has no
rational relationship to state objective.
 RBR (+?)

Under EPC, states can treat diff classes of ppl in diff ways. BUT the EPC does deny states the power to
legislate that diff treatment based on criteria WHOLLY unrelated to objective of statute.
 Saving administrative time for hearings is important BUT not compelling in this situation

Clogging up judiciary can be a decent reason. With RBR, only need 1 good reason.
SO WHY does this NOT pass?
 When something struck down on RB, question is did they actually apply RBR
 So ct purporting to apply RBR, but then seems to apply something much more stringent

20. Frontiero v. Richardson (1973) (Brennan)

PLURALITY OPINION; 4 votes for SSR

17
Fed §: ServiceMAN could claim wife as dependent automatically, then claim benefits. ServiceWOMAN could
only claim husband as dependent if true. 2 things explain this scheme: 1) women tend to be dependent on
husband, and 2) 99% of military is male  setting up situation where you don't need hearings generally and
save $$. Fronteiro said this was discriminatory: 1) procedural and 2) substantive.
Uncon discrim against servicewomen in violation of 5A DPC. Plurality says Y to SS.

If generalization is true (wives more dependent on husbands) what is the harm in this scheme?
 Scheme both assumes women are less, and reinforces that women are paid less. Men gets extra $
and doesn't have to prove; women would have to prove she makes more to get bump

 Argument: sex discrim should be subject to SS b/c it is like race discrim:

o Historical discrim
o Immutability
o Highly visible
o Congress recognized as important interests, Title 7 1964 Civil Rights Act included sex
o No relevance to performance
 Says Reed didn’t use RB

Analogy to race +
 So much precedent showing SS for race. Plurality makes case on analogy b/c court already accepts it
& getting to SS help getting rid of sexist laws
Analogy to race -
 if whole case turns on similarity to race, then any difference seems like it counts against sex
discrimination (ways diff would undercut reason for SS in sex discrimination)
o think Caroline Product: women not a discrete and insular minority. not geographically limited
(integrated socially in many communities); women are majority of population
 sex discrim is more described as benefits to women
 Ties to racial discrimination w/o addressing different sex discrimination
 BIOLOGICAL difference; whereas race is not a biological difference (social construct)

Ct comparing position of women to pre civil war blacks – what’s left out of that story? What kinda women ct
had in mind?
 As if either you’re white women (relatively privileged white women) or black man – erases women of
color
 Also, ct particularly focused on disabilities that works parallel well, e.g. voting, public sphere access,
juries, bringing claim in your own name; doesn’t focus on family arrangements, family law
 “Romantic paternalism that put women not on pedestal but in a cage”

Powell + Blackmun (concurring)  Agrees statute is unconstitutional, but no SS. Equal Rights Amendment is
happening, let the ppl speak! If court decides, confidence in system lowered
 (-) ERA never ratified; arguments for SS is some things can't be left to politics
 (+) defers to democratic decision making; Not willing to spend political capital (contra Brown)

21. Craig v. Boren (1976) (Brennan)

 DEFINITIVELY ESTABLISHES INTERMEDIATE SCRUTINY STANDARD
M, 21 to purchase 3.2% beer; F 18. Basis was traffic safety. STRUCK DOWN under EPC (fails substantial
relation).
 Weak relation b/t gender and "characteristic or trait that gender purported to represent"  thus leg
either need gender-neutral laws OR good facts to support any gender discriminatory law

18
 o Gov statistics 2% man drunk drive – denying men rights based on small percentage of bad
behavior thru being in the same sex
o Efficacy of the statute – alcohol easily accessible for under aged man
IRL: even if accept purpose was traffic safety, statistics are trash & § only prohibits sale, not consumption 
so objective fine, but substantial relationship does NOT have sufficient evidence

Intermediate Scrutiny: "Classifications by gender must serve important governmental objectives and must
be substantially related to achievement of those objective"
 How is IS applied: ct quick to say Yes to important gov objectives, real fight is about substantial
relationship (whereas in SSR hardly compelling gov interests)

Why did course choose this case to establish intermediate scrutiny?

 Not test case (not brought by feminist attys)
 Note: it takes court decades to decide white ppl have same rights under EPC; whereas court STARTS
w/ a male case and says men have same rights
 Craig version of IS is actually pretty rigorous (statistics). H says what IS means varies case to case
o Hard to imagine about what kind of statistics could survive this IS
Comparisons to Brown . . . Not a lot
 Males Ps now (whereas black kids Ps In Brown)
 Brown - education SOOOO important. This case is about 3.2% beer access.
Why does court decide intermediate not strict (since Fronterio was just a few years ago)?
 Craig doesn't actually tell us, but H says assumption is that court doesn't buy analogy b/t race & sex.
Justices think there ARE biological differences b/t sexes that could serve as underpinnings of laws.
Does court's decision do anything to counter sex stereotypes?
 Refutes assumption that W are more responsible. How does W assumed responsible hurt W? State
expects M to be idiots, W not to be. So, maybe if something goes wrong, then W blamed more.

Powell + Stevens separate concurrences

Rehnquist (dissenting)  Don't agree w/: 1) men challenging a gender-based statute invoking more
stringent standard of review, and 2) court's enunciation of standard w/ NO citations

SEX: Pregnancy and Statutory Rape

22. Geduldig v. Aiello (1974) (Stewart)

 RBR, b/c § doesn't distinguish on sex, it distinguishes on pregnancy
(still good law, regulating pregnancy is not sex discrim  got rid of EPC argument for abortion)
CA disability insurance system = funded thru EE contributions; participation mandatory; required to pay 1%
of salary. For jobs that don't have own disability insurance. Pregnancy not covered. Why? $$$.
BUT CA doesn't explain WHY chose pregnancy as cost savings. Implicit in CA's reasoning may be:
 Pregnancy is choice (well a bunch of disabilities occur b/c of stupid choices (atv accidents)
 Sexism. Pregnant women have men to pay for stuff! This doesn't throw ppl on streets w/ no food b/c
presumably they have men to pay (whereas men w/ bad backs, no one else)
 Whole idea w/ disability is that this is temporary; man w/ bad back is going back to work; women w/
kid maybe not going back to work, staying at home w/ babies
 Pregnancy be seen as extra, take men as the baseline
WHY women challenged this?
 Gap in services. Not able to work, not eligible for services. And EVERY ASSUMPTION underlying CA's
choice is probably not there  Don't have a man to support; not leaving workforce, etc.

19
Statute constitutional, UPHELD.
 Policy legit; CA has to make choices. Chooses to be self-funding w/ small contributions. Thus no preg.
 EPC does NOT require CA’s policy choices to be sacrificed for pregos. CA is not discriminating on
persons/group who are ELIGIBLE for disability insurance. Classification challenged relates to the set
or risks the state has selected to insure  "EPC does not require that a state must choose b/t
attacking every aspect of the problem or not attacking the problem at all"
Fn 20  this is NOT eligible for intermediate scrutiny. This is rationale basis.
 RB applies b/c this is NOT a sex-based classification. This is a pregnancy-based classification. It's not a
line b/t men and women; it’s a line b/t men+women vs pregnant woman
 Sex based classification is identified VERY rigidly. All men on one side, all women on other.
 (-) the conditions of pregnancy and the § can affect women’s choice even tho not pregnant; implicit
reasons for § are sexual stereotypes/generalizations, § like this might be means the leg pursue a lot
of sexist beliefs about women; While preg doesn’t completely track sex line, ONLY women can get
pregnant; Insurance cover things exclusive to men too (like testicular cancer)

Geduldig program hampers women equality Geduldig program advances women equality
 reinforces & makes so that women are  no separate spheres approach;
getting less money (rely on men, but still  w/ “special” prego privileges, ER wouldn’t
paying in taxes) want to hire W
 rejects vast majority of women b/c their
most likely moment of disabling is not
included so women much likely have sth
not qualify
 Holds women almost exclusively
responsible for pregnancy (this was your
choice, you either wanted it or had it by
accident (slut shame)). NOT distributing the
risk of pregnancy.
 seems inconsistent w/ idea that women can
be mothers and workers
 impacts right to have children by not
providing safety net

And how does this relate to sex discrimination; WHO suffers consequences??
 Pregnant women AND non-preg women (who might choose not to become pregnant b/c of this)
 ALSO, a lot of reasons CA chose not to cover pregnant women is actually about WOMEN: not coming
back to work? That is not about being pregnant, that is about being a mother

24. Michael M. v. Superior Court (1981) (Rehnquist Plurality)

 women prisons in own body. Weak version of IS (defers to state on state interests)
Law = crime for M to engage in sex w/ W (not wife) under 18. 17.5 yo boy had sex (rape?) w/ 16.5 yo.
Why would a state criminalize statutory rape?
 Produces unsupported children; minors can't consent; If prosecutors think can't get actual rape, they
go after statutory rape
Why might CA only cover female victims?
 1. Concern about female decision making; 2. Protect female virtue
 Want to make sure reporting not discouraged
 common law rape is sex specific  rape is a crime that M commit against W.
How does this harm W? M can't provide care for kids; § assumes boys can be aggressors, but girls can't
20
IS applied b/c STRICT line b/t M/W. Only men can be perpetrators, only women can be victims. Does §
violate EPC of 14A under IS? NO. § sufficiently related to state objective.
(if sexually neutral, IS wont apply)
 Objective? discourage intercourse w/ minor W. WHY leg decided is unclear, could be # of reasons.
But purpose finding is entitled deference (H: this is more RB like)
 Sufficiently related? Almost all harm falls on W not M.
o argument based in biology (W get pregnant), but only really functions b/c Rehnquist assumes
gender stereotypes (W take care of children, M don't).
o "equalizing"  M get jail, W get pregnant. So inherently saying pregnancy = jail.
P: § should be broadened. NO. Relevant inquiry NOT whether § drawn precisely, its whether w/i const limits.

*FYI: while Rehnquist thought white ppl should have same protection as POC under 14A (law fully reversible,
fierce critic of AA), he didn't see reversable feature for M & W. Thought sex discrimination should only apply
to W.
(-) if you want IS when only W getting harmed, it’s difficult to determine since it seems both gender being
harmed

[for intermediate scrutiny, under the Michael M approach…, under the Craig approach…] (ct not consistent)

SEX: The Military

Timeline: After 1993 no more statutory exclusions, however W excluded from a # of combat positions via
policy. BUT, since 2016 all positions in military have been open to all (w/ gender-neutral requirements)

Before Rostker, court decided Schlesinger v Ballard

 Navy gave W more time to get promoted b/c they couldn't serve in combat
 Does not consider whether W being excluded from combat is constitutional or not, just look at the
time question (which say is fine). Rostker similar doesn't address sex-specific combat, takes as given
***both male Ps in Rostker & Schlesinger. H underscores: gender discrim reversible from start

25. Rostker v. Goldberg (1981) (Rehnquist)

 § uphold, IS (weaker).
Military power to authorize draft. Carter had proposed women registered too. C only gave $ for men. Long
lawsuit. Does selective service act violate 5A by authorizing POTUS to register M not F? Male Ps.
14A “no state shall” regulate states; 5A’s DPC imposes same EPC req for fed gov
NO, § const. IS applied (distinctive M/F line).
 Important gov interests: raising and supporting armed forces
 Substantial relationship:
1. General policy of deference b/c decisions related to military/national security
o Is deference good idea?
 (+): national security’s important it gives Congress flexibility & discretion to
pursue; avoids a competency issue (counterargument? Is court an expert on
anything?)
 (-): well, Korematsu was bad; also, why THIS power, not another enumerated
power (like tax). Also, draft has elements of civilian life too (so why deference to
military)
o Did ct actually defer? Arguing that actually ct did not defer to military: Carter wanted to
reg W  he is commander in chief! Carter comes from military background, has
expertise
2. Congress had a lot of discussion. And recent discussion. So, obviously not based on sexist crap.

21
 o Congress really thought about it and in the enlightened age no sexist stereotypes, so ct
can have confidence in Congress judgement
 H analogizes this to fn.6 in Michael M (which has also said that CA had
reconsidered this recently)  idea is that modern legislatures do not have sex
stereotypes!
o And avoids 1940 leg history, b/c that may contain a lot of embarrassing stereotypes
about women. However, the 1980 debates and 1940 debates are basically the same: W
responsibilities are domestic.
3. C excluded W from reg, b/c C excludes W from draft and M only draft b/c we have M only
combat positions. (why only M and no W combat positions? b/c everyone agrees! No need to
question)
o Lower court said like only registering blacks or Lutherans. NO, M & W not similarly
situated
o Reg + draft = close relationship . . . Draft + combat = not as tight (majority of men drafted
dont serve in combat)
o (-) relying on general consensus (that no W combat) on const not good idea, IS supposed
to be counter majoritarian (this is law already passed and still we scrutinize), ct shouldn’t
just defer to popular will
C decision to authorize reg of only M does NOT violate DP. Exemption of W from reg is sufficiently related to
C's purpose in authorizing reg (i.e. prepping for battle). Const requires C treat similarly situated persons
similarly, not that it engage in gestures of superficial equality

H says what is interesting about this is that the focus is OUTSIDE court. Not looking to constitution, looking to
consensus outside court. Ct open to extrajudicial influence.
 Rostker seems to suggest that no outer limit on limits of W’s role (so if public perception was NO W,
even for non-combat then seems court would be fine with that)
 Rostker also seen on weaker side of IS spectrum for this deference to basically public opinion

How does male only registration harm men? How could it harm women?
Makes it more likely for men to be drafted; drafted Military benefits
could lead to harm Sexual stereotype: Ordinary men can serve in
Consequences if don't register for draft: military, only the unusual women does; W less
 Lose/not get fed job; Condition of getting a desired for military service
driver’s license; fed student aid Military mark of full citizenship (think of all the
Reinforces stereotypes that men are naturally more military service that has propelled forward leaders)
violent and fine w/ being separated from kids Undermines W’s contribution in military

Should this registration be sex neutral?

 H points out that generally feminist movement is pretty passive, so idea has not attracted them
 often times the registration is used as a basis for male-movement complaints (only M can be drafted,
so what are you W complaining about??)
 Would reinforce the idea that military service is for everyone

Is Rostker still good law? If comes up again, and SC goes w/ deferring argument to C then that would look a
LOT like rationale basis review . . .
big change, no combat exclusions anymore, more popular support for W military service includ combat

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SEX: Sex-Segregated Schools

30. Vorchheimer v. Sch. Dist. (3d Cir. 1976)

uphold by equally divided Court
P wanted to go to all male central school. Boys school way better reputation. “personal preference.” Does
Const require every public school be coeducational? NO.
Brown doesn’t apply b/c not race; diff b/t genders are legit (emotional needs, experts on same-sex schools),
so diff level of scrutiny. Said it would come out same under IS or RB.
 Single sex schools serve legit ed policy
 P is not being denied equal ed, just her personal preference
Court not passing judgment on policy wisdom, just constitutionality.
 No discrim b/c equal opportunities for boys & girls, each elite school
o “equal opportunities”: schools same as in both elite & selective to get in. (-) BUT only roughly
comparable. Boys have more science, more books, more prestige, etc.
 Also, not discrim motivated
o Why schools are sex segregated? Ct say “heterosexual distraction theory”, emotional
problems of adolescent years. (-) BUT this is only modern argument not plausible historical
account  post hoc rationale. No historical evidence that suggests this is why there are
single sex schools.

Not very exacting IS analysis . . . .

Dissent  Zinger! Pulls ¶ from Plessy & inserts male/female, saying majority is arguing "separate but equal"!
 There is bio difference; But hard to see how bio requires W to be in a different math class than M

32. Mississippi University for Women v. Hogan (1982) (O'Connor)

 if it’s not separate but equal, then unconstitutional.
MUW all-women school; Hogan nurse, who wanted BA. MUW didn’t enroll b/c of sex. He would have to
travel far away for for-credit classes. Violates EPC of 14A. Apply IS.
 Gov interest? MUW says compensates for discrim against W, countering historical and ongoing
discrim
o NO. No discrim against W, nursing school dominated by W.
 (-) whos a nurse and who runs nursing different; discrim also persist b/c M get
promoted over W; statistics show more W in profession salary goes down
o Only in LIMITED circumstances can a gender-based classification favoring one sex be justified
if it intentionally & directly assists members of sex that is disproportionately burdened (see
Schlesinger). W are not burdened. 95% of nurses W.
o Policy just makes self-fulfilling that nursing = W career
 Sub related? Fails too. Men can audit classes, so obv not about excluding men for ed reasons.

Why did court choose to have male P (b/c overwhelmingly "normal" cases are brought by women trying to
get into men's school)? To show this isn't just a women's rights issue. An issue for all. More sympathetic.

NOTE this is a much more demanding standard than 3C Vorchheimer. What “equal opportunity” means
 In Vorchehimer, they said Central and girls fine b/c roughly similar.
 In this case, it's an issue that there isn't a M only school in Columbus and he'd have to travel.
Much more precise requirement of equal education opportunities (in town).
o Separate but equal violation here: school for W but no M, W can go nursing school in
hometown M cant

23
What if Mississippi had opened women-only business school/CS/Physics (programs dominated by M)?
 Argument that Hogan would have upheld business school: women are not dominating business,
not historically present in biz schools; stats not in favor; not as present at top in biz hierarchy
 Argument the w-only biz school unconst: Fn 8 (no business school in man's hometown!) or sub
related

Fn 1: reserving the separate but equal question. Not answering what happens if 2 single sex schools.

33. United States v. Virginia (1996) (Ginsburg)

VMI single sex public military institute in VA. VERY good education; strict adherence to specific educational
method. Women were interested in attending, but got rejected b/c of single sex policy. VWIL = not same.
Does VMI deny EP to W? YES. Apply IS (stricter than Hogan).
 “exceedingly persuasive” justification = must be genuine and not hypothesized or post hoc
o Separate but not equal b/c not comparable program
VA's first justification: single sex ed provides ed benefits & contributes to diversity in ed approaches
 NO. That is not why VMI established or maintained. Look at HISTORY. Not their actual goal.
VA's second justification: VMI method would have to be TOTALLY modified if women admitted.
 NO. reasoning outdated, based on assumptions. A lot of W don’t want to attend, guess what! Neither
do a lot of M. Ed not “one size fits all”
 Destroy idea is NOT proven. AND, has been disproven before (law, med, police).

Ginsburg's lengthy discussion of women's legal history to say real reason is gov associate masculinity and
militarism and masculine w full citizenship
 Different from Michael M where ct accepts state’s account for gov interests
 shoots down VMI's interest of diversity; instead fits into a general pattern of M & W being “different”
 Also uses history to say that VMI is making all these statements of disaster when admitting women,
but look to history: disaster did not unfold when women let into law, police, medicine.
Why sex discrim is important question? Fronteiro analogize race and sex discrim. Here, history makes a case
that sex discrim is a constitutional issue b/c of the LAW's own role of promoting inequality, so it’s law’s
responsibility to undo it

What is new about this case? What's argument that this case is not new?
*history argument How would Hogan court decide this? Presumably
*IS heightened = didn’t accept VMI reasoning as Hogan court would have found this unconstitutional
easily. Post-hoc rationalization not ok (unlike too.
Michael M).  VMI "incomparable"  shows ultimately
 VMI failed to show "exceedingly this case decided same as Hogan, that
persuasive justification" Some scholars said women had "incomparable" opportunity
"exceedingly persuasive" seems closer to SS thus women don't have equal education
and some argued that this is "more" opportunity.
rigorous than what we thought IS was
before.
On p. 6 fn6 G says courts have "thus far" reserved
most stringent IS for race/national based
classification; "thus far" is indicating that RBG thinks
sex could still be added to that (she lost in
Frontiero).
** H says while may be some new aspects of VMI, ultimately decided on same reasoning.

24
Jurisprudence: single sex fails IS if separate but unequal
 “separate but equal” not decided in VMI or Hogan (and probs never, b/c VERY difficult IRL to have
sep but equal schools (would have to be developed at same time & basically have same teachers)
 Virginia just like Hogan, establishes that sex segregated public ed fails IS if the educational
opportunities available to one sex are not also available to the other – separate but not equal

Scalia (dissenting)  snappy. Majority applied more like SS than IS previously applied to sex based
distinctions, and did not comport w ct’s previous formula for IS. Scalia wants RBR for sex and not SS.

Analogy to race. How is sex segregated schools diff than race segregated schools?
 Doctrinally very different (Brown  separate but equal is never equal; In sex segregated, court
specifically reserves separate but equal language (even use phraseology of separate but equal))
o ct thinks race seg schools are motivated by animus, whereas ct don’t assume the animus for
sex seg schools (other factors; being more privileged)
 Race = SS; sex = IS
Does it matter that W are not discrete & insular (you likely know M/W but maybe not black individuals)?

[As an overarching matter, the court is more willing to uphold sex-based regulations when it’s linked to real
biological differences (Michael M), when it thinks it’s sex stereotypes that maybe true as generalization but
not always true (Craig)]

Sexual Orientation (ONLY UNDER EPC)

To date SC has not officially applied more than RB to laws based on sexual orientation. Some lower courts
have talked about IS . . . (sexual orientation is not going to get SS b/c sex discrimination has not gotten SS)

35. Romer v. Evans (1996) (Kennedy)

 first case struck down law via EPC for sexual orientation; applies RBR+ (but think Reed)
Amendment 2 of CO statute, no protective status for LGBTQ against discrim in CO. And SC implies might also
limit LGBTQ protection from general laws that prohibit arbitrary discrim.
Why rationale basis review? SC SAYS applying rationale basis (p. 4). Circular logic. You can trigger strict
scrutiny by:
 Discriminating on a fundamental right (like religion)
 Discriminating based on a suspect class (race) / quasi suspect class (sex)
This case not subject to heightened scrutiny b/c LGBTQ is not a suspect class. well why not? Circular b/c you
should be asking IF it should be a suspect class. Also, RB, but then strikes it down.
WAS IT REALLY RB? Ct’s “RB” analysis:
 § fails RBR b/c (1) too broad and too narrow; (2) motivated by irrational prejudice ("inevitable
inference" that statue motivated by hatred of LGBTQ)
o CO: special favorite/preference argument, keep everyone on same level; limited resource for
enforcement state want focus on worse discrim like race/sex; concerned about ppl have
moral objections to homo (ie religion)
o Ct don’t think these real reason, but motivated by bias
 (-) Unlike ordinary RBR: normally under RBR ct comes up reason for gov or accepts post-hoc
rationalization, here ct interrogates gov’s reason; CO reasoning not necessarily “irrational prejudice”,
could be legit under RBR; RBR ct more accepting of if you don’t like it take it to policies, here ct more
skeptical of politics

25
 o overbroad/too narrow is not an RB thing. RB does not require the best choice, the perfect fit,
etc.
o Suggesting distrust of politics (in contrast to Carolene fn)
So typically viewed as "rationale basis +" in this case:
 Regular RB: need just 1 good argument w/i bunch of bad apple arguments
 RB+: one bad apple (bias, animus) taints the whole barrel

WHY might court have said it applying RB and then apply something much more rigorous (RB+)?
 Trying to sneak a change into doctrine w/o being obvious about it. And, you don't have to give a
reason for applying RB (and thus don't have to defend applying intermediate)
 Court hasn't committed itself; Once you elevate standard of scrutiny you can't go back
o Like in Reed; applied RB b/c didn't want to be held by IS, then later (Craig) go to IS
 Even more powerful statement under RB review
o RB+ only comes out to strike something down

DISSENT  Should court have remained neutral in cultural dispute? And what would neutral be?
 Scalia’s implicit assumption is politics is WORKING, and thus EPC stays out, should let it sit neutral
o (-) Plessy social rights v political rights; this not actually neutral, minority less political power,
e.g. Caroline Products; Also, the court has intervened in heated cultural disputes via EPC
before. (Loving, Brown)
Complicated what would count as neutral; It's either constitutional or not, there really is no middle

36. Windsor v. United States (2d Cir. 2012), aff’d (2013)

illustrates confusion in lower courts after Romer  b/c everyone aware Romer not doing RB review
(think Reed, also confusion b/c says RB but strikes down §)
Same-sex couple, married in Canada, residing in NY. Widow. P denied estate tax benefit ($363k refund!) b/c
DOMA: marriage b/t M & W. Gov objectives: uniform admin of fed law, protection of traditional marriage.
DOMA is subject to IS under factors enumerated in Cleburne  LGBTQ = quasi-suspect, thus IS applies.
Factors why IS/some elevated review should apply: (the more you have the stronger argument)
1: History of Discrim 2: Relation to Ability
Y, everyone agrees: being gay illegal. 90yrs of "irrelevance" factor: Being gay not relevant to
discrim. (Disenfranchise not decisive) performance, whether good tenant, good EE, etc.

WHY should history of discrim matter? Should relevance of factor matter? (so, if sexual
o If history discrim, tend to have present orientation made harder to be good lawyer, should
discrim. If no history of discrim, then likely that be a ground for discrim)
not going to have a vector for discrim to o Y, b/c relevance an imperfect way to get at
operate & be deserving of heightened animus
scrutiny o more relevant, more likely it will survive IS
o History could show politics isn't going work b/c narrowly tailored (like biology)
for this group H: relevance about protecting meritocracy (race/sex
o Like VMI  history of law perhaps made not relevant to ability), BUT also about production
discrim, so responsibility for law to address culture (only worthy of protection if can produce)
o long history hard to dispute (whereas (-) if it actually does impact ur ability to contribute,
current discrim maybe not as unjust) that’s reason to discrim
3: Distinguishing Characteristics / visibility 4: Immutability
Y, LGBTQ sufficiently discernable & discrete. Theres debate whether LGBTQ are immutable.
Ds say being gay not fixed (spectrum, time)

26
 o SC says test more broad  whether there Should immutability matter?
are "obvious, immutable, OR distinguishing Note: immutability not necessary or sufficient: You
characteristics that define a discrete can change religion, but that gets heightened
group." What seems to matter is whether protection BUT you can't change your disability, yet
the characteristic of the class results in that only gets RB
discrimination
HIGHLY visible at certain times (like when applying
for marriage license) (from race paradigm)

Should visibility matter?

Invisible traits can themselves be caused by fear of
discrim (closet)
5: Political Power
Maybe powerful, but Q is not whether gays have achieved political success, Q is whether have the political
strength to protect themselves from wrongful discrim. Also under radar group.
H: EPC helps groups at their apex (Brown civil rights was so powerful, Frontiero is at ERA, Romer
unimaginable w/o gay rights movement).

Should it matter if gays have all that power?

o NO: whether or not have power shouldn't change whether discrim happens
o YES: courts shouldn't wade into political arguments. If have political power then court shouldn’t
touch it
H points out whites protected by SS, men by IS  so political power not always great argument (Carolene
fn 4); But in Frontiero court says women's Title VII victories were reason to intervene

THESE FACTORS AREN'T REVISITED WHEN DECIDED TO BE REVERSABLE FOR SEX AND RACE
o H says well, maybe it's hard to tell how those policies help/hurt ppl (some of the sex-based ones also
hurt dudes). H assumes straight ppl would also have IS if sexual orientation gets IS eventually

2 other arguments not raised above for why higher scrutiny should apply
o Social hierarchy/Second class citizenship  is one group made a second-class citizen? Pervasive
social, political, legal hierarchy? Subordinate?
o Straight ppl on top, and everyone else less then
o Court generally don’t ask that. But H says that when court determines higher scrutiny
deserved, court is implicitly saying group is 2nd class citizenship
o Sexual orientation should be thought of as a form of sex discrim & be subject to IS. Two forms:
o "but for sex"  But for my sex, the state wouldn't have objection to me marrying a woman
 Argument about BIOLOGICAL sex
o Why is there so much animus against LGBTQ? B/c they are not abiding by sex stereotypes.
 Argument about GENDER, sexual expectations

Court in Bostock in June 2020, determined Title VII sex discrimination includes sexual orientation
discrimination based on "but for sex." So now moving forward could be argued for IS
o (+): could be a way to get IS for sexual orientation
o (-): it's like Frontiero. It's another argument by analogy, and anything that is different b/t sexual
orientation and sex discrimination could be a ding

Alienage and Poverty

27
14A: no state shall…deny any person w/i its jurisdiction EP. Ct interp “person” to include citizen + legal
resident alien
Alienage  SS
 Long history of discrim
 Immutability: can be natraulized; BUT process outside individual control, not easy to become US
citizen, not sth expected to be changed
 Visibility: cant tell from appearance; critical moments of high visibility (like sexual orientation:
disclosing on forms to employer (I-9) or handing over passport. Aliens also have proxies – accent.
 Political powerless: aliens can be disenfranchised
 Irrelevance: for most job citizenship irrelevant (unless gov etc)
Wealth  RBR

37. Bernal v. Fainter (1984) (Marshall)

 Alienage = SS, except political function = RBR
Bernal native of Mexico, LPR. Works as paralegal for legal aid. Wants to be a notary, b/c would be useful for
job. TX § says need to be citizen, denied notary job. § violates EPC by denying non-resident notary job.

GENERALLY: state law that discrims on basis of alienage can only be sustained if withstand SS. BUT narrow
exception to that rule: "political function" exception
 Aliens can be legitimately excluded from positions intimately related to process of democratic self
government  RBR applies to exclusion
o ex: Teacher, police, probation officer
o Once court applies political function exception, law will always survive RBR. B/c once court
decides political function exception bucket it has already determined enough to pass RB (b/c
so tied up to implementation of self-gov)
 Rationale: citizens have right to self govern and not have ppl outside political community participate,
some public position too central to self-gov
o Ct applies high level of scrutiny SS to laws excluding noncitizens from economic life, but only
RBR to laws excluding noncitizen from political life
 Like IS: in sex discrim, ct thinks its generally irrelevant, but sometimes it’ll be relevant
then ct will uphold, so IS; so here, generally alienage irrelevant – SS (most § on
alienage fail under), but sometimes ct will say relevant so RB (uphold).
 What would justify alienage getting SS whereas gender is IS?
 If race is paradigm (which is how we tend to reason about EPC)  alienage is like
race where it is always going to be irrelevant (main driver: disenfranchised, literally
cant vote political powerless), whereas court does think sex can be relevant in
some time

Two-part test to determine if restriction based on alienage fits w/i narrow political function exception:
1. Specificity of classification; classification that is substantially over/under inclusive tends to undercut
gov claim that classification serves legit political ends
 IRL: fine. ONLY applies to notary, so doesn't sweep too many ppl into confines of law
2. If classification sufficiently tailored, may be applied only to ppl holding state elective & important
nonelective exec, leg, & judicial positions, those officers who participate directly in the formulation,
execution, or review of broad public policy
 Notary public: NO (+) more clerical & ministerial; bar exam don’t even req citizenship; (-)
position of public trust and important feature of legal system
 Public school teachers: YES (+) teaching student way of American life, culture, democracy,
conveying American values; (-) argument just based on stereotypes, just being a citizen
doesn’t mean more committed to the values

28
  Police/parole officers: YES (+) law enforcement is practically what law means on the ground
Distinguishing feature: jobs w/i political function exception is properly applied to jobs that are policymaking
or have broad discretion in execution of public policy and require routine exercise of authority over
individuals. That is not a notary.
SO, SS applies. State’s compelling interests (notaries must be familiar w/ laws + called to testify yrs later) are
stupid & no evidence. Law struck down.

38. San Antonio Independent School District v. Rodriguez (1973) (Powell)

 Wealth? RB. End of discussion.
Complicated; state funded program to establish min ed in every TX school, relied on property tax. Rodriguez
said families who live in poor districts lack property tax base to get proper funding. Argued violation of EPC.

WHY did TX set up financing this way? (as opposed to through all state funding)
 Benefits wealthy families, generally more political power; increases total $$ available  ppl more
willing to pay $ b/c going to MY kids (whereas if going to state, split equally, maybe not the case).
Racial dynamics might also support appeal of this. Allows state taxes to be lower.
No SS and RB is fine b/c NOT suspect class, not fundamental right.
 1. P: Suspect class. Ct: poor don’t have the traditional suspectness: no history of discrim; not
politically powerless
o (-/+) History  ofc; Immutable  VERY difficult to get out tho its possible, Rodriguez itself
makes poverty less mutable by denying ed fund equality; Visible  ppl don’t know ho much
you earn, BUT so many proxies of poverty; Politically powerless  have less power than most
ppl do; Relevant  no; don't need $ to form a coherent thought; Social hierarchy  Sure.
 2. P: Fundamental right. Ed tied to other fundamental rights (voting, free speech)
o Federalism. State question. And SC not touching legitimacy of local taxes. Ct worried about
being a “super legislature”  careful of recognizing fundamental rights.
 Ct: School not fundamental right; important, but not in const. Spending $ on ed not
necessarily produces better ed. doesn’t stop you from voting.
 Think about AA, Rodriguez is one of the reasons why disparities in ed
outcomes b/c it says states doesn’t need to equalize funding
 But also since wealth is RBR, can have it as factor in AA
o Would Court have found fund right if financing scheme resulted in NO ed?
 SC suggests POSSIBILITY that if not enough $$ to have a school, then perhaps const
violation. underfunded = policy decisions; whereas no public schools = const problem
Pass RB? Y
 TX says want to promote local control. RB does not require perfection. And lots of other stuff funded
via local tax, so we’re not disrupting that. AND, lots of ppl created this program.
 Emphasized that this is really a problem for democratic leaders.

Poverty does fairly well under Cleburne criteria. Why is court not willing to give SS or IS?
 Court uncomfortable w/ making decisions that arguably should be left to legislature
 H: worried about disrupting status quo and this would cause SOOO much change
o Counterargument to that is always, well that means it is such a big deal
 H: poverty not this vs that. It’s spectrum, w/ no clear delineating line of poor, not poor.
 they also don't want to say being poor is immutable, or tell the story that contradicts the idea that
the rich worked hard to get that

29
White dissent  Does NOT pass RB: irrational b/c stated reason is local control, but in fact the localities
really make few decisions.

Marshall + Douglas (dissenting)  Marshall wants SS, but notes problem w/ applying SS to ALL wealth-based
distinctions  would encompass SO many laws. He says should be flexible (not all or nothing), maybe like
alienage. This isn’t about poverty, it’s about intergenerational transmission of poverty. EDUCATION, which
affects children, should get SS (but no need to commit to other areas).
o Generally RB, but then areas where SS appropriate b/c in those areas wealth based distinctions
particularly problematic

Age and Disability

***For both age + disability, all the action is statutory, b/c constitution has just applied RB to both

Age based mandatory retirement?

 Easy to administer; productivity decline w age; Creates job turnover; injury could go up w/ age
Why would state prefer age as opposed to test?
o cheaper & easier to administer (not making an individual judgment). H: tests are not perfect and
some might not be appropriate (like for judges; States don't want to make individualized mental
judgments (could get political)
Why would an EE challenge this policy?
o Doesn't treat as individual, subjecting them to a stereotype/generalization. Arbitrary.
o Like $$, benefits; hard to get a diff job. Pension goes up w/ years served
o They like their job!

39. Massachusetts Board of Retirement v. Murgia (1976) (per curiam)

 RB to age; statute constitutional
Murgia = police officer; mandatory retirement at age 50. Reasoning = policing physically demanding. BUT P
passed all of the exams and was in great health. Does mandatory retirement violate EPC? NO.
NO STRICT SCRUTINY
o Fundamental right? No. Jurisprudence has not said right of gov employment is fundamental per se
o Class? No. Old ppl haven't been treated all around great, but not like race where they have history of
purposeful unequal treatment. NO discrete and insular minority b/c EVERYONE gets old (ppl don’t
change race) & why would ppl discrim against future selves? (b/c in denial). Might be relevant in
some but no others. Leg will get older so not politically powerless (leg still discrim on age)
o using same criteria as per usual; and use race as a paradigm
o age is a spectrum, ct don’t like getting into defining whos old/young
APPLY RATIONALE BASIS = passes
o Objective? protect public by assuring physical preparedness of police.
o Rationally related? fitness generally declines w/ age, removal is rationally rated to state's objective.
o individualized testing would have been better. BUT, don't have to choose the best one
o
H: case is a good example of how RB functions. Deferential to state, even if not smartest move.

Fr if we apply Cleburne factors:

History of Discrim? Y, stereotypes on productivity Relevant? Sometimes relevant. H says the court's
o justices don’t personally experience trying view that age truly matters is probs why they went
to get new job at 55. Life tenure! w/ RB. But of course, at times it is irrelevant.
Immutable? Yes. . . can’t get younger. Social Hierarchy? Y. better to be hold than young.
30
 Visible? Generally yes Politically Powerless? Heck no! AARP!!!!
C recognized as problem: ADEA

Mandatory retirement MAKES it so that older adults are less productivity?

o Whereas women def care for kids more, court said even tho generalization generally true, not always
and keeping that way would make it so. HERE, it is a generalization that may be true the majority of
time, but court doesn't take route where they say mandatory retirement reinforces/creates the rule

Marshall, dissenting  Two-tier approach (SS or RB) is stupid! rigid approach does NOT describe what SC
has done, nor does it describe what SC SHOULD do. SC SHOULD take more sophisticated approach to review.
o Once SS or RB is decided, that decides what happens to law. SO SC hesitant to include more suspect
classes. Rodriguez & Frontiero . . BUT other important groups & rights remaining! AND, SC lies about
review (more searching in Frontiero & Reed)
o Problems: no notice to lower court judges + parties; unpredictable
"All interest not "fundamental" and all classes not "suspect" are not the same; and it is time for the Court
to drop the pretense that, for purposes of EPC they are." ZING!
IRL: maybe job not FUNDAMENTAL, but certainly important part of life, liberty, and pursuit of happiness AND
§ particularly burdensome to older people
o True race & age not same. BUT EPC review should be flexible and handle those distinctions.
Marshall's test: when old denied employment, state needs to show 1) reasonably substantial interest, and
2) scheme reasonably closely tailored to achieving interest (Similar to Reed)
1. Sub interest? Yeah, gov's interest is legit.
2. Gov's means chosen NOT legit. Over-inclusive. Already test ppl to determine if can physically do job.

Why might a state want to distinguish b/t ppl based on disability?

o Could be wanting to HELP ppl, provide special benefits; Fear disabled, prejudice, don't want to
expend resources on them
Why would a disabled person want to challenge laws?
o Stigmatizing OR §s helping me but NOT what I want (I don't need a training program, I need reg job)
o Law might make incorrect assumptions about what a disabled person is capable of

In class applied Cleburne factors:

History of Discrim? Y Social Hierarchy? Y.
Immutable? Varies. Such a large group (H points Relevant? H: primary reason SC didn’t apply
out that Race/Gender have lots of diversity too) heightened scrutiny: believe that those w/
disabilities have reduced ability to function & cope.
Visible? Sometimes Politically Powerless? Y; BUT SC says "no" b/c
Discrete & Insular: No, in community w/ everyone. attract attention of legislators. H pushes back 
o H: you could be "in community" but like for lots of racist/gendered laws. Also, if have MDD then
special ed kids you're in different classes maybe you can't even participate in politics and
and not really in community thus be effective.
C Act: Y. Another ex of C recognizing and SC saying
"okay, we'll stay out" (opposite of Frontiero)

40. City of Cleburne v. Cleburne Living Center (1985) (White)

RB+

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CLC wanted to operate group home for those w/ intellectual disabilities; City informed them they'd need
special permit  denied them permit. RB (NOT quasi-suspect class), § unconst strike down.
1. Those w/ disabilities = limited ability to cope. States have legit interest in dealing w/ this group.
2. Lots of laws! And ppl approve. Thus indicator gov should address.
3. Since broad leg response  NOT politically powerless
4. Large class! If give them quasi-suspect, we’d have to give others status too . . .
 "protected class fatigue" (Marshall tries to fight against, recognize that just have to decide
THIS case .. tries to limit it so it's not like you have to keep adding groups)
o Rationale basis + is a way of dealing with this. Court has not committed itself.
But special use ordinance is invalid. All city’s reasons stupid; rests on irrational prejudice against disabled.
o (1) attitudes of prop owners? (-) attitudes not permissible basis for treating facility diff; (2) Mean
kids? No evidence; (3) Flood plain? That would affect all props same; (4) Legal responsibility for
residents? No evidence. How residents diff than concern for frat house?; (5) Size? Stupid again.
Unconstitutional as applied: Can have rules for group homes, BUT SC thinks reason permit denied was
because disability. So, statute fine, but reason they denied was not.

Does case actually apply RB? strikes down statute . . .

o City’s reasons might be silly, but IRRATIONAL? B/c all you need is ONE good reason under RB AND
ordinary RB embraces post hoc reasons
o Many ppl think RB+  so not "is there one good reason?" it is "is there one BAD reason" and that
would sink the ship. Does NOT embrace post hoc.
Why does court go out of way to say it's applying RB, and then actually apply something higher?
o Worried about precedential effect; retains flexibility, not committed
o SC always reasoning from race. And the more differs from race, the bigger strike against it

Concurrence (Stevens + Chief justice)  We don't have separate standards (or we shouldn't). All standards
(at least to Stevens) are the same, and are applied along a continuum, that is why diff results.
o RB encompasses what all tests look at: that impartial lawmaker could logically believe classification
would serve legit public purpose that transcends harm to members of the disadvantaged class

Concurrence in judgment/Dissent (Marshall + Brennan/Blackmun)  Same arg as before. Level of scrutiny

in equal protect cases should vary w/ 1) importance of interest adversely affected and 2) recognized
invidiousness of basis upon which classification is drawn (more in long version)

Facially Neutral Rules and the Requirement of Discriminatory Intent

Facially neutral analysis only relevant if tryna get some heightened review, e.g. race / sex (not an issue for
age b/c either way gets RBR even if explicit)

**At this point, gov actions drawing specific distinctions on class are VERY rare now.

41. Washington v. Davis (1976) (White)

 Only way to trigger SS for facially neutral § that have disparate impact is to prove discriminatory intent,
otherwise RBR
Test given to applicants for police positions; verbal, vocab, reading, etc. Black candidates did
disproportionately bad. Test not shown to correlate to good job performance. Why might DC have adopted?
o Qualification, police officers have to fill out a lot of reports post-arrest

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 o Test fairly new. Prior, explicitly reject black ppl from police jobs. Adopted test at moment when
explicit barrier against black officers disappeared. Also most ppl who took this test had gone to
racially segregated schools (Brown about 20 years earlier)
Ps claim disparate impact from facially neutral laws: 1. Test exclude disproportionate amount of black ppl; 2.
Link b/t test and success police not close enough
(hoping to build on case law decided re Title VII so don’t need to show bad intent when disproportionate
disparate impact)
NO violation; Ps lose. EXPLICIT race-based laws are what EPC is aimed at countering.
 If § explicitly discriminates based on race  SS
 If policy facially neutral, but has disparate impact on members of racial group  RB
o UNLESS Ps can show discriminatory intent  SS
o Ps have burden of proving disparate impact AND discriminatory intent
Law upheld. SC said hard for them to understand why claim brought! If W ppl scored bad, couldn’t sue. Police
have legit interest in basic competency. And police force did so much outreach to black communities!

Why does SC decide EPC that way?

 If embraced discriminatory intent, then too much change. HUGE change is what leg for not ct.
o Rodriguez had the same thinking re wealth-based distinctions
o (-) to require too much change
 Ct has done other big changes, e.g. Brown; and ct managed to do it in Title 7 context
 Carolene (discrete, insular = politics doesn't help) whole premise of SS is racial
minorities cant rely on politics
 If it's such a big pervasive problem, why SHOULDN’T be in the purview of the court.
 This is not the historical problem EPC had in mind, core harm 14A concerned is just explicit
distinctions based on race, i.e. Jim Crow seg
o (-) racial discrim historically often operate thru facially neutral policies, e.g. full tax, property
req, grandfather voted req

Is Davis consistent w/ Brown?

 YES: segregation in Brown was NOT facially neutral. It was black kids excluded from white schools.
Not intent based either; Brown went out of its way to do racism w/o racists. Since EPC is just about
explicit racial distinctions, then this is def in line w/ Brown. Davis is a facially neutral law, so EPC
doesn't apply, Brown not implicated.
o Could also say Davis just like Brown II. Shies away from doing actual work.
 NO: Brown took into account a lot of secondary effects of segregation BEYOND just explicit
segregation. Brown trying to create society where black kids don’t feel inferior. So beyond explicit
discrimination for EPC. Davis lets a LOT of racial inequality stand in place.

Davis is prime example of viewing 14A as anti-classification over anti-subordination. (Loving) here no
classification but presumably subordination problem

42. Personnel Administrator of Massachusetts v. Feeney (1979) (Stewart)

Feeney not vet. MA had absolute preference §, advantaged vets; vets (gender-neutral §) get ranked above
others. Almost always get job. Disproportionate impact on W b/c fewer vets W. Feeney did great, but still
didn’t get good jobs b/c vets. Got low paying jobs M didn’t want.
Reasoning for §: reward vets, ease transition; encourage service; attract loyal, well-disciplined.
Violate EPC? NO. 14A guarantees equal laws, not equal results. Framework for gender neutral laws
challenged for disproportionate effect on women:
 Laws that draw explicit sex-based distinctions = IS
 Facially neutral laws w/ disparate impact = RB, UNLESS, discriminatory intent shown = IS
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 o How to show discrim intent?
 “discrim purpose implies MORE than intent as volition or intent as awareness of
consequences. It implies that decisionmaker selected or reaffirmed a particular course of
action at least in part BECAUSE OF not merely in spite of its adverse effects on an identifiable
group."
o MA leg can't just pass knowing women will suffer. Instead, need to show MA passed statute
not just to help veterans, but to also HARM women. Doesn't have to ONLY harm women, but
one of the things they need to have had in mind was harm women
 Smoking gun needed basically. Explicit animus.
 Likelihood of proving discrim intent? Zero to none. Ppl smart; typically don’t include
HARM in findings (want votes); ppl don’t realize animus
§ had legit purpose and NOT established for purpose of discrim. Law’s impact can plausibly be explained on
neutral ground.

Is this § facially neutral?

 (+) not explicitly based on gender, theoretically W & M both can be veterans ee
 (-) practically hardly any W vets (and b/c result of sex specific laws only M drafted)
Suppose instead women could absolutely not enlist in military, would this be facially neutral?
 Probs no; Geduldig. Even if all pregnant women are women, there are still MEN+WOMEN
nonpregant ppl. SO, this logic, even if class of veterans is exclusively male, the class of nonveterans
would be both male + female

Sometimes SC willing to acknowledge facts in world w/o a ton of evidence, and sometimes not
 No evidence: Loving = racist crap & white supremacy; Romer = homophobia; Cleburne = teenagers
boys won't bully
 NOT HERE. You need to prove animus.

How to understand it under AA context: ct never tolerated such boost as 2 separate list

Opinion: should P have to show discriminatory intent for facially neutral law w/ disparate impact, which
would be because of not in spite of (and basically impossible)?
 One consequence of this = laws will be almost impossible to challenge
 SC really doesn't think disparate impact is what EPC about; Life just sends you some knocks.
 Disparate? What is disparate enough? That may be hard to establish.
Criticisms:
 Washington Davis is a facially neutral test that functions to perpetuate consequences of Jim Crow seg
 Why should intent matter. This will silence leg to provide their political & legal reasons for §

EPC is about when can law distinguish ppl; DPC is about substantive liberty floor gov cant take away

SUBSTANTIVE DUE PROCESS/FUNDAMENTAL RIGHTS

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No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.

Substantive due process about idea of substantive baseline of freedom, Rights everyone entitled to.
 Some rights SO fundamental, gov can't take away even if they took away from EVERYONE equally.
 Based upon reading of word LIBERTY in Due Process clause
EPC challenges the distinctions a law is drawing, SDP doesn't challenge distinctions, instead, says there are
some aspects of freedom so important they can't be taken away
 SDP is like a floor; EPC is dividing ppl
 There are cases where BOTH at issue (like same sex marriage)
 SDP case that doesn't have an EPC claim would be if MN decides to abolish marriage  Can't
challenge on EPC b/c no distinctions on class, but SDP claim b/c right being taken away from all
 SDP is about BUILDING on history; disputes in DPC are: we have this historical precedent, how
should we read it/interpret it? broadly/narrowly?

How is procedural DP different from substantive DP?

 Procedural: you want to take away my welfare benefits, you need to give me an opportunity to show
you I don't actually have that $$. So, in procedural DP the bad thing you don't want to happen might
still happen, but they need to give you a chance to contest.
***FYI in this class we don't cover procedural due process (H just wants us to know it exists)

Infringements on Fundamental Abortion Regulation Undue Ordinary Economic & Social

Rights  SS (Zablocki) burden analysis (Casey) Legislation  RBR (Williamson)
**can be used OUTSIDE marriage (both under EPC/DPC)
1. Sufficiently important  State interests: fetal life,
state interest maternal health, encouraging
2. Narrow tailoring women to choose life (new in
C)
1) What fundamental right are
we talking about? 2) does statute
infringe on that right? Does it
survive SS (Zablocki or other
test)?

Fundamental Rights: NOT fundamental rights:

 Marriage  Right to contract
 Right to have & raise kids (boundaries  Abortion (weird in middle)
fuzzy) (Meyer & Pierce)  Certain professions (?)
 Privacy (boundaries fuzzy) (just home?)  Housing
(beyond married couples tho) (Griswold)  Education (Rodriguez)

ECONOMIC REGULATION: Freedom of Contract

Why enact a max hours law? Why oppose a max hours law?
Curb exploitation of labor (protect bakers); Limits flexibility of bakery owners.
Employment policy (new jobs); Promote fair Some individual bakers might want more hours
competition (race to bottom). (financial desperation).

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45. Lochner v. New York (1905) (Peckham)
Law saying bakers can't work 60+ per week. Unanimously approved. § strikes down b/c interferes w/ right of
contract b/t ER & EE  general right to contract is part of LIBERTY of the individual protected by 14A.
Individual freedom. Court reads word "liberty" to be freedom to enter into almost any contract
 Bakers are adults and can make own decisions. Stupid and paternalistic.
 Freedom of K protected by DPC of 14A  in general, leg cant ban ppl from forming K, UNLESS K
would be inconsistent w health, morals, safety (e.g. mining).
o This will not impact health of baker or bread. If § okay, then where will leg stop? No job is
100% safe.
o (-) baking is also hazardous job, flour explode; overwork can result in decline in craft & health
standards
 The ppl want to make $$. We’re impeding that. ER/EE have equal bargaining power.

Ct likely decided this way b/c if included § w/I health, safety, morals then WHAT WOULDN'T fall into that?
This would swallow rule and anything could be regulated and there'd be no freedom of contract

Dissenting (Holmes)  Majority is just pushing an economic theory.

 "every opinion tends to become law" This is what ppl want. Liberty in 14A gets messed up when
denies the natural outcome of the dominant opinion (unless fundamental right)

Dissenting (Harlan + White + Day)  State can definitely REGULATE elements of contracts. State has stepped
up in regulations lately b/c of the great expanse in types of job and growing danger. STATE DEFERENCE!
"The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import," this court has
recently said, "an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are
manifold restraints to which every person is necessarily subject for the common good."
 IRL: duh, enacted to protect physical health. We’re crippling states & ability to care for citizens.

What is wrong w/ Lochnerism? 6 criticisms

Overturned a democratically enacted statute Premised on incorrect factual assumptions
 (-) if that's the problem w/ Lochner, that is Baking safe; Worker bargaining power
the problem w/ all judicial review  (-) Relying on incorrect factual assumptions
 Just b/c something passed leg doesn't mean not unique to Lochner & not full account of
it's okay. why Lochner reviled
o Plessy; SFFA
Too expansive reading of liberty Treats right of contract as natural right
Recognized right of freedom of contract, but that Treated right of freedom of contract as if it was a
right not part of life, liberty, or property & thus not preexisting thing (natural) & law couldn't intervene.
protected by DPC. BUT contracts are created by law. Contract not
Common law notions: Liberty = not being put in jail, natural.
property = real/personal property; life = not being  Is problem treating contract as natural
killed right? No, b/c courts have never just
 (-) if too expansive a reading of liberty is recognized natural rights (plenty of
problem w/ Lochner, then that is problem constructive legal rights enshrined in
w/ every substantive due process case. constitution). Also, boundaries of right of
Others not overturned. Thus, doesn't contract can change over time.
distinguish Lochner from other cases.  this is true of Lochner, but not what made
Lochner so reviled.
Constitutionalized a particular normative view Recognizes substantive right, when DPC should be
Holmes' (social Darwinist) dissent: 14A doesn't read to only recognize procedural rights
enact Social Statistics; Lochner is taking laissez-faire commentators say substantive DP would never
economics / minimal legislation reading into const, have to have been developed if court hadn't gotten

36
 such that leg cant have a diff view of how econ rid of P&I
should be organized  P&I in Slaughterhouse: Similar argument in
 Ct embedding its own normative view into Slaughterhouse, could have been used in
const such that leg cant deviate Lochner
(think Harlan's dissent in Plessy. Harlan believes in  Again, if that is the problem w/ Lochner,
white supremacy, but says we shouldn't interpret that is the problem w/ all substantive due
constitution in a way that enacts normative views) process claims.
See this in other cases. Like every case on women's
rights. Lochner not unique. Normative ideas:
 Bradwell (women should be mothers, not
attys = separate spheres)
 Plessy (commitment to white supremacy)

H: problem w Lochner is ct showing a reading of const that proved to be very unpopular, and then stuck w it
long enough that it provoked crisis in ct legitimacy
(by the time depression come, mainstream moved away from laissez faire and much more in favor of gov
intervention)

HISTORY: After Lochner, clear that labor regs as applied to men would be struck down. Labor reformers could
either not pursue protective labor legislation OR pursue it for Women.
 Some feminists not hot on this (b/c if uncon for men, should be uncon for women). BUT advocates
for labor reform pursue women only protective labor leg anyway.
 Brandeis brief from the below case famous
o first brief that went to the Supreme Court, asking the Court to systematically consider social
science evidence rather than just traditional legal materials like precedence and statutes

benefits of establishing the constitutionality What are the costs of women only labor laws?
of women only labor law?  If W and M eligible for job, they'll hire just M b/c they
 If one of the reasons for protective can work more hours  some evidence that protective
labor law is to protect from power labor laws legalized W’s exclusion from some jobs
imbalance, that is present (and more  Suggests that women need protection when men don't
so) for women  Preferential treatment (some like)  Used as
 Better to have something than nothing argument against ERA
at all  In Muller, what is W’s contribution to family? raising
 “opening wedge” If some laws exist, family (M get $) But W also support family $$, so,
maybe become popular and men could taking away a way for them to help raise kids
get them later financially. Also ASSUMES W have children.

46. Muller v. Oregon (1908) (Brewer)

*if challenging today, of course you'd bring under EPC. But at this time, EPC only applies to race.
Law: no female should be employed in laundry, working 10+hrs/day. Law upheld.
 NOT the same as Lochner. EXPLICITLY says Lochner still good law. Muller diff b/c W are fragile
 Bunches of states have upheld law like this; laws like this all over place! Maybe that stuff not
authoritative, but shows societal opinion.
What's Muller's key argument for why W only labor law constitutional but M only not? L-hand side of p. 3:
 women inferior (men = brute strength); need W healthy to reproduce (propagate race – white
babies); W inequality NOT product of law, it’s nature (we let them go to school, they’re just not as
good)
 Mutually beneficial - Men benefit from women only protective labor laws b/c:

37
 o Men get more jobs (women not competing) & children better cared for
 Muller also compares women to children. Alike/different?
o (+) need to be taken care of; (-) Women are adults and can make autonomous decisions; not
kids; maternal roles; childhood has time limit

What's wrong w/ Muller? Imposes normative value; constitutionalizes idea that W’s duties are domestic;
screws up the fight for ERA b/c makes ppl think need to choose b/t equality for W and protective labor leg
(realistically not true tho); makes motherhood harder by diminishing W’s market power

No one speaks about problem of Muller!!!!! To H, you can't understand Lochner w/o reading Muller. B/c
Muller tells us Lochner is about MEN tho it uses gender neutral terms (ct taking M to be the baseline human
being). It's about male autonomy, not human autonomy.

ECONOMIC REGULATION: Decline of Judicial Scrutiny over Economic Regulation

RBR for ordinary social, economic legislation

3 musketeers: Stone, Brandeis, Cardozo | 2 swings: C.J. Hughes, Roberts | 4 horsemen ultra conservatives:
Van Devanter, Sutherland, Butler, McReynolds (always voted against New Deal)

47. Nebbia v. New York (1934) (Roberts)

Fix price of milk. Dude sold for less, prosecuted. Prior to passing law, NY did HELLA research. Milk industry
unstable; also health! Does const prohibit fixing milk price? NO. Does enforcement deny P DP? NO
 Prop & contract rights not absolute: "equally fundamental w/ the private right is that of the public to
regulate it in the common interest"
 Duty of state to advance safety, happiness, and prosperity of ppl by supplying for general welfare
thru legislation  14A doesn’t prohibit gov reg, just sets boundaries.
P says price fixing per se uncon (UNLESS public interest, i.e. utilities)
 Nope. While dairy is not a public utility, it definitely has a public interest and is subject to reg
o Affected w/ a public interest = subject to police power

Two points from Nebbia:

1. Much more relaxed/lenient sense of requirements of DP than Lochner court expressed (R-sides of p.
4-5)
o DPC is prohibition against unreasonable or arbitrary or capricious action that has some
relation to policy purpose
2. more expansive understanding of regulation in benefit of public interest, different view of which
industries might be subjected to regulation
o Reads "business affected w/ the public interest can, and the nature of things mean no more
than an industry, for an adequate reason is subject to the control of public good" broadly &
bottom of p. 7
o Milk industry can be regulated for public good, doesn’t have to be something unique like
public utility

Was Nebbia consistent w/ Lochner?

 (+): Lochner said you can reg for health safety morals, it just didn't think baker followed. Nebbia sort
of has same idea (can reg in public interest) but thinks milk DOES fall into public interest
 (-): Nebbia seems very deferential (RB-esque); Lochner not at all

38
  Lochner has concern w/ exception swallowing rule (health safety morals covering EVERYTHING);
Nebbia doesn't have that concern (pub interest is expansive)
 Lochner obsessed w/ Liberty interest, whereas Nebbia not so much concerned w/ what is included
textually w/I constitution
 not a decisive break away from Lochner, but in tension (not fully w/I Lochner world)

Generally cited as the case overturned Lochner; Robert’s switch in time that saved 9 (from court packing
plan)

48. West Coast Hotel v. Parrish (1937) (Hughes)

 Generally taken as min wage laws for everyone are fine
Law set min wage for W & minors (diff than Muller; Muller about W health (hours), this is $). Parrish, hotel
chambermaid. Brought suit to recover difference in her paid wages & min wage. Hotel said min wage law was
violative of the DPC of 14A. § const, uphold.
1. Dismissive of idea that freedom of contract part of liberty, protected by DPC (Pg. 2-3)
a. Liberty implies absence of arbitrary restraint, NOT immunity from reasonable regs.
2. Recognize that EEs don't have great bargaining power. Especially true for W.
3. Doesn't draw such a sharp distinction b/t gov inaction and action (having min wage law & not having
are both choices) (in contrast to Lochner, which takes market as natural & intervention as too much)
a. statute "does not compel anybody to pay anything. It simply forbids employment at rates
below those fixed as the min requirement of health and right living."
b. Pg. 5  it's not just that ER are asking to be left alone, they are asking to be subsidized
c. Clear break from Lochner. Lochner silent on idea there might be negative externalities. This
court recognizes that w/o limits on hours/wage, then someone else (gov + taxpayers) needs
to take care of them = negative externalities.

assume, that reason Justice Roberts switched mind is that he feared court packing plan and knew unpopular
view. Is that the right move?
 Yes: protect court's legitimacy
o Roberts understood court packing plan as posing long-term threat to the institutional power
of SC (really no limit what Congress could do to ct)
 Dilutes individual power
 Political branches are able to influence court; threat to independence of court
o Double flavor (a la Marbury): Roberts is voting this way to preserve independence of court,
but in doing so he bows to political powers of FDR
o also a parallel to Brown II: where court doesn't want to be on record saying every school has
to desegregate now, thus preserving court legitimacy
 No: casts doubt on idea that court is shielded from political influence
o Should the ct be blind to the fact that their views deeply unpopular?
o Even the talk/threat of ct packing did the thing

If Roberts hadn't switched, why would ultimately the SC have stated that New Deal programs were fine?
 If he hadn't switched, the court packing plan may have gone through. Most ppl in America thought
New deal was good idea (FDR elected 4 times). Thru political process have new justices.
 Hard to resist long term cultural change (there was a move towards Keynesian economics). Almost all
economics are in that camp, so hard to resist shift.
 Continued resistance to something increasingly popular could itself undermine legitimacy of court

39
What does this story suggest is the real problem w/ Lochnerism?
 Lochner on wrong side of history; court chose the non-dominant view (laissez faire) and then kept
that for too long. Everyone shifted. Then b/c court hadn't shifted, it was a threat to itself.
What lessons should court take from Lochner?
 Make decision that aren’t too far outside of mainstream (if there is a consensus)
 Be wary about making factual assumptions

Ct’s approach of reviewing modern econ reg

49. Williamson v. Lee Optical Co. (1955) (Douglas)

Eye regulations, artisans need prescriptions to do glasses. Eye reg fine.
Why did OK probs pass law? Likely lobbied by eye docs. More $$.
1. Law: illegal for anyone NOT an optometrist or ophthalmologist to fit lenses/replace lenses w/o
written prescription. DC said Invalid under DPC of 14A b/c arbitrarily interfering w/ optician's right to
do business.
o NO. maybe not great idea, but it’s def rational. Leg decides how to balance +-, not courts.
2. Violated EPC to subject opticians to regulatory system & EXEMPT sellers of ready-to-wear glasses
o NO. Leg could have had a # of reasons it created classification. No invidious discrim here.
3. Violated DPC when law regulated of advertising, when only small part of visual care field.
o NO, it’s fine. Eyeglasses are not bought in isolation, buy them for health of eyes.
4. Violates DPC to prohibit eye exam in retail store
o No, fine. Saving profession from taints of commercialism.

Considers claims brought under EPC & DPC (Lochner during a time where EPC was JUST about race)
 Williamson reads EPC & DPC (for economic reg) as same kind of review = RBR.
o RBR applies under either EPC (ordinary distinction) / DPC (ordinary social, econ leg)

More on RBR
Should judiciary accept this § if legislature themselves didn't give reason?
Arguments FOR post hoc Arguments AGAINST post hoc
 Leg operate under political checks, if ppl  You can't be bothered to write down the
don’t care no reason given, not ct to strike reason? What! That’s your job!
it  Allows leg to change reason (+/-)
 Reasoning so straightforward they didn't  State got away w so little leg history
need to mention it
 Allows leg to change reason (+/-)
 No emphasis on WHO thought what or how
many legs, just need a reason (otherwise
presupposes leg has unique reason while
maybe they have many diff)

Should RBR req leg to have read & understood the §? If voters don’t care, why should ct; legislation is very
complex (H: most legislators would not have read/understood the level of detail; it’s just lobbyist & prof
staff)
What could possibly fail RBR? When ct thinks the only argument for it demonstrably untrue
Is it appropriate for ct to req laws be rational? Why not defer to leg? RBR very generous, if it’s sth that’ll fail
then it’s appropriate for ct to stop it (but then RBR is engine for withholding §, when § fails ppl gonna ask is it
really RBR)
Is RBR the right standard for ordinary social, economic legislation?

40
  (+) leg’s restraint is politics not ct to intervene
 (-) politics don’t work – OK passes law that hurts most ppl but only helps few docs – most ppl don’t
vote

Williamson shows current review: Abandon health, safety, moral requirement. Ordinary economic
regulation just subject to RB review.
 West Coast in that direction, but didn't explicitly say that
 Now public health, morals, safety don't even matter! Often that will be your rationale basis, but it
doesn't have to be
o Public health, morals, safety etc. appear in Lochner and to some extent Nebbia

FAMILY & THE BODY: The Early Cases

***Court no longer interested in scrutinizing laws related to economic right or K; BUT they are interested
in protecting non-economic rights under DPC

50. Meyer v. Nebraska (1923) (McReynolds - big supporter of Lochner)

Law: can't teach lang other than English b/f student in 8th grade. History shows § motivated by animosity
towards german during WWII.  § infringes on liberty under 14A DPC b/c arbitrary & w/o reasonable
relation to any end w/I state power.

Framework: "LIBERTY" includes (via case law): freedom from bodily restraint, right to contract, engage in
common occupations, acquire useful knowledge, marry, establish home & bring up kids, worship God.
 Offers an acct of non-economic rights they think DPC covers  L hand side of pg. 2

ed VERY important (states require; cultural value); § interferes w/ opportunities of pupils to get knowledge
and power of parents to control ed of their kids = bad
 D argues xenophobic stuff ("civic development"): would be great if all spoke English, but that canNOT
be coerced w/ methods that conflict w/ Constitution

What is wrong w/ Spartan model in the court's opinion (and req kids going to public school)? NOT OUR
historical tradition
 + of Sparta: indoctrination (i.e. native boarding schools); ensure kids growing well (nutrition,
education, etc.)  everyone gets same start, reduces disparities in family; more educated citizens
 - of Sparta: children are being homogenized, shaped in state's image. Not in the diverse values of
their parents.
o NOT OUR tradition, ct when giving substantive content to liberty in DPC looking at our
historical precedents
 (+) using history is having restraint on judicial discretion; ppl’s will in the past;
cultural norms
 (-) is ct looking at right precedent, what IS the tradition; history is unfair and should
change
How does court know parents have a constitutional right to keep kids w/ them?
 common sense, it's obvious
 "wholly diff from ideas on which our institutions rest"  i.e. that is not our culture, that is not our
experience. OUR way of doing things is each child in home under parent's control

[History: in general, EPC is about breaking from history of discrim (long history of laws not good argument for
EPC but reason for IS); generally, DPC is about building on history, what’s the US tradition to give meaning to
what liberty means]

41
51. Pierce v. Society of Sisters (1925) (McReynolds)
OR §: everyone b/t 8-16 had to attend public school. Hurt private schools. Law violates 14A/ conflicts w/
rights of parents to choose schools for kids & rights of teachers to engage in useful business.
 History of private schools being useful; under Meyer plain that § interferes w/ liberty of parents to
direct upbringing & ed of kids
State doesn't have a general power to standardize ed by forcing kids to get instruction from public teachers
ONLY. Child is not "mere creature of the state; those who nurture him and direct his destiny have the right,
coupled with the high duty, to recognize and prepare him for additional obligations"
 On this acct who is DP protecting? Protecting rights of the parents (not child; parent-kid interests not
always aligned)

If you follow logic of Meyer/Pierce, what would be the stopping point of parent's control? Why CAN we have
compulsory school attendance?
 Setting a minimum not infringing on parental autonomy
o Meyer/Pierce recognizes FAR-RANGING parental rights (minor state supervision, homeschool
ok)
 where parents control stops could be where it impacts child's ability to use their rights (like you need
to be educated to use your first amendment)
 a lot of its about welfare system. We don't want parents to raise kids poorly so dependent on
welfare system.

How are Meyer & Pierce diff/similar from Lochner? *FYI, still good law, whereas Lochner never cited
Similar: Difference:
 Read word “liberty” expansively & give it  Lochner: relatively straightforward that they
substantive content (presume certain rights are making wrong fact assumptions
contained, rather than pure textual) (bargaining power of workers); in contrast it
 Emphasize individual rights over public is harder in Meyer/Pierce to identify what is
good the “wrong” factual assumption
 Assumes freedom to contract / workplace  Normative view endorsed in Meyer/Pierce
autonomy is still popular in a way that the view in
 Overturned democratically enacted statutes Lochner isn't (ppl like having autonomy with
 Both constitutionalize certain normative their kids!)
view
o Parent child relationship
(Meyer/Pierce)
o Social Darwinism/lessaiz faire
(Lochner)
 Right to pursue a profession (like
Slaughterhouse case on P&I; all kinds of P&I
go into substantive due process)
 Here commingling econ & non-econ rights

Can Meyer & Pierce be distinguished from Lochner? if you don't like Lochner, and for those reasons, then you
need to figure out if you like these types of cases.
 Lochner is less problematic b/c bakers chose to work, but here empowering parents to control and
limit kid’s choice  Meyer & Pierce empowering individual to make decision about someone else

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  Lochner only applies to economic K rights; Meyer & Pierce more far reaching impact by parent-child
relationship
 pretty similar to Lochner. H thinks problem w/ Lochner is court chose wrong normative view & stuck
w/ it too long. Meyer/Pierce chose normative view that was/is widely popular (also a substantive
consensus that transcends party lines). Harder to see that Meyer/Pierce are constitutionalizing a
normative view if you don't disagree w/ that normative view

52. Griswold v. Connecticut (1965) (Douglas)

§ prohibits birth control devices & ppl helping someone else to prevent conception. Griswold (exec of PP) and
Buxton (doc) arrested for giving info/instruction/medical advice to married ppl about how to prevent
conception. State: § designed to discourage premarital & extramarital relationships. Case deals w/ zone of
privacy: marriage. Can’t touch that. § invalid.
 Specifically disavows Lochner, instead relying on these penumbras of other constitutional
rights/guarantees
 1, 3, 4, 5, 9 = all these amendments reflect recognition of value of privacy. *Has to be PENUMBRA b/c
text itself doesn’t say the word “privacy”
o (-) Too fast; “penumbra” = not really there
 Privacy OLDER than BoR. Marriage = foundational, core relationship for society. Can’t touch.

What is the exact right of privacy Griswold is recognizing? Just related to home? Bedroom? What makes
marital bedroom sacred?
 Common law tradition – sacred marital bedroom = sex & procreation
o Marital sex is core of marriage (central to marriage). Fits into common law (sex in marriage
good; outside of marriage illegal for one reason or another).
 Is Griswold limited to state invasion of personal home? If they enforce § it would. BUT actual Ps
arrested at work in clinic . . .
Is Griswold limited to married couples? Why are married couples particularly deserving of privacy?
 Marriage even more fundamental than some constitutional privileges; created prior to law, history of
marriage predates const
o (-) But marriage in this case (contraception access) is created by law; Griswold calling on US
history tradition of marriage being sacred & predates law, BUT same time invoking the
historical account to strike down a long standing law
 everyone benefits from stable marriages, so deserve some privacy
Are husbands and wives differently situated?
 No; opinion roots right in marriage and doesn't talk about distinction b/t sexes
 Griswold is in 1965, b/f women's rights, and seems unaware that women may have a higher interest
in contraception. Everything is treated as a married couple
Griswold is ambiguous [SC cases meaning being understood in retrospect]
 one way be read in subsequent cases it’s just about privacy invasion of married couples
 FYI: Eisenstadt case later says unmarried couples have this same right to access to contraception
based upon privacy stuff. So extended beyond married couples

Concurring (Goldberg + chief + Brennan)  Right of privacy in marital relationship = basic & fundamental,
w/I meaning of 9A. This fundamental right cannot be abridged (14A)
 Existence of 9A shows framers belief that there are fundamental rights NOT expressly called out.
Does NOT broaden authority of court.

43
  Fundamental? Need to look to "traditions & collective conscience of our people to determine
whether a principle is so rooted there as to be ranked as fundamental”  Privacy counts

Concurring (Harlan)  Doesn't take majority penumbra approach; instead basic values implicit in concept
of ordered liberty. No reason to think DPC is limited by BoR. This violates 14A all by itself.

Dissenting (Black + Stewart)  Majority is Lochnerism. Stupid law, but not uncon. What is this "right of
privacy" they speak of? Court needs to use the rights IN the constitution, otherwise, there is going to be too
much interpretation (and while rights could get expanded, they could also get watered down that way)
 ALSO, cases they cite are based on this Natural Justice/Lochner idea  both Meyer and Pierce are
based upon Lochner, which Black thought everyone hated.
 How determine what values & conscience of American ppl are? Do we have gallop poll abilities?

Dissenting (Stewart + Black)

Why did Douglas take penumbra approach? (to avoid Lochnerism)

 Wants to bring in a textual hook so, unlike Lochner, opinion not accused of constitutionalizing own
view and being unconstrained ("super legislature"). Look! We're tying to actual text of constitution
Does the penumbra approach respond to problem of Lochnerism? Is Griswold example of Lochnerism?
 (-) majority tryna be textual but no word of privacy in const
 Lochner could be read as its own giant penumbra of liberty: 5A property and condemnation clause
 H: certainly as a rhetorical matter, choosing the word penumbra (then adding emanations) is bad.
 Harlan (C) basically says we're doing the same thing, why not just be true and say what you're doing
is what I'm doing
Griswold result widely respected, but penumbra approach was not seen as successful and is not used again

Douglas says we're not doing Lochner, we're grounding ourselves in text (i.e penumbras); Black's dissent says
they ARE doing Lochner
Argument it IS based on Lochner? Argument IS NOT like Lochner?
 Reading normative view into constitution  Normative view they chose is still popular
 privacy should be protected  Lochner has factual error (bargaining
 Overturns democratically enacted statute power); there may be moral error (using
 Lochner protecting freedom of K; Griswold birth control is sin) in Griswold but not
about married couples’ autonomy and factual
agreement
 Lochner blind about bargaining power Anti-majoritarian & anti-federalist . . .
disparities; Griswold silent on bargaining  By the time SC decided Griswold, all other
powers & disparities b/t husband and wife states already got rid of these laws, so SC
doing what the population wants, but they
It’s not that there shouldn’t be constraints on gov, not letting there be a state outlier  anti-
but the best institution to decide core component federalist, cant have diff view as a state
of ordered liberty should be leg  Lochner by the time it’s controversial, is
anti-majoritarian
Griswold is the modern foundational case on non-econ rights
if Lochner totally abandoned econ rights, why should ct treat econ & non-econ diff? Griswold is just more
widely popular

If they voted the other way, ppl would just need to go political route
Why shouldn't the court have just said, go to the legislature?
 Price: policy that if they think it is w/I privacy vein .. But then H pushes back .. Confused.

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  Seems like H said: Very safe for court b/c it is going to be popular. SO, if they do this they can
"up" their reputation

FAMILY & THE BODY: Marriage and Parenthood

What were the interests state wanted to protect? Why do you think Redhail wanted to challenge §?
 Big theme in family law: privatization of  Wants future baby born in marriage
dependency  want parents in charge of  No money! & kid ward, SO never can get
kids so state doesn't have to support married
 Could force ppl to pay back support  Dignitary harm (WI thinks he's a bad person
 Maybe less kids? just b/c no $$)

53. Zablocki v. Redhail (1978) (Marshall)

 § struck down; framework for regulating marriage
Law: person had to be current on child support + show kid not ward b/f could get married. State: family law
concerns privatization of dependency, want ppl to support their own kids; if no support for old kid less likely
for new. Redhail had kid when minor; obvs not going to have funds. Denied license. Strike down §.
 Right to marry is part of right to privacy (personal decisions) implicit in 14A DPC (Griswold)
 References Loving  Loving interpreted as marriage = fundamental right under DPC. But Loving
doesn't go really beyond that. So Zablocki goes into when can be regulated:

Zablocki Framework – interference w fundamental right (not limited to marriage)

 Is the interference w/ right to marry significant?
o what is significant? Court doesn’t really tell us. Says THIS § is sig b/c absolutely bars indigent
ppl from getting married OR poses substantial obstacle (like $25k). Non-significant: e.g. small
filing fees or short waiting periods. Rule of thumb? Is it big enough for barrier for ppl to
pursue  3 days v $25k
 NO: no violation of the fundamental right to marry, § constitutional, under RBR
 YES: law violates the fundamental right to marry (and cannot be upheld), UNLESS the law:
1. serves “sufficiently important state interests;”
 WI: family structure, preserves children’s interests, saves $$, etc
2. “is closely tailored to effectuate only those interests.” Fight here! To survive close tailoring:
a) the law can’t be over or underinclusive; and
b) alternatives. the law can’t restrict access to marriage when other regulatory mechanisms
are available to achieve the state’s interests
Ct: close tailoring = perfect fit, no other option
§ NOT closely tailored:
Overinclusive - new spouse could have made $; underinclusive - doesn’t reach all ppl not paying child
support (just married); doesn’t ensure $ gets to kids (just no marriage); WI had better options; Doesn’t stop
from having more kids.

Would § have passed if exception for indigency?

 even if exception for indigent, barrier is high enough that many ppl might not get married (no
absolute depravation but still significant; middle class ppl would have to choose b/t buying house or
marriage if back bill was $20k) and thus indigent exception wouldn't be enough.

Zablocki test for "age restriction on right to marriage"

 Significant interference: YES (B/c if you're 17, you need to wait 1 year)
(1) Are there important state interests = of course

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 (2) Close tailoring  Hard to survive!!! Is an age restriction closely tailored to making sure immature
ppl don't marry? NO: overinclusive b/c anyone under an age can't get married and everyone who
is 17 immature? no; is everyone who is 35 mature? no
*How do age based restrictions survive then? IRL: courts refuse to apply Zablocki test, b/c fundamental right
to marriage “only applies to adults”
 (-) you could have said in Loving that fundamental right is only to marry same race

Zablocki test for polygamy

 Significant interference: YES absolute ban
1) important state interests? yes; unattached men will commit crimes (b/c some men will get all
wives); promotes welfare fraud, child abuse, inconsistent w/ equality of women – promotes male
dominance); moral rejections, not marriage tradition
2) close tailoring? We want to prohibit polygamy b/c we want to eliminate welfare fraud? NO, there
would be tons of other ways to do that. SO, def not closely tailored.
*How does polygamy survive then? IRL: courts refuse to apply Zablocki test b/c polygamy not part of right to
marriage b/c not US tradition (-) ppl also didn’t have a right to marriage that long; Loving only same sex

Power of Zablocki test! VERY hard for restriction on marriage to survive Zablocki test (so, that is why courts
refuse to apply to polygamy and age restrictions) (Zablocki used as machine to strike down)
 While Zablocki doesn't use language of strict scrutiny, this is essentially strict scrutiny for
interference of a fundamental right.

54. Michael H. v. Gerald D. (1989) (Scalia) (plurality)

NO problem under DPC; law upheld.
Crazy family relationship. Michael H wants in on kid’s life, no right under CA law to challenge paternity. CA §
quite typical of many state §; tend to follow common law rule on paternity (strong marital presumption). Two
things § does: 1) Marital presumption, and 2) Procedure for challenging presumption (blood test). Challenge
must be w/I 2 years, by husband (alone) OR wife + biological father (together). Challenge via Michael AND
daughter by denying bio dad chance to establish paternity.
 EPC lose b/c no suspect class  RBR, state can rationally favor marital stability
 DPC lose. Common law tradition of marital presumption. Bio dad doesn’t have fundamental right to
obtain parental rights after presumptive dad exercised significant responsibility. DPC doesn’t apply.

Why didn't § give child the ability to rebut presumption?

 Concern w/ finality (babies can def not do it w/I 2 years unless guardian appointed)
 Why concern w/ finality? CA concerned w/ stability of family units
 § also not really about child's best interests; about claims of adults
What does Meyer/Pierce suggest about why a child might not be able to challenge?
 Kids basically possession of parents.
 Common law tradition of parents’ rights
Related concern is privatization of dependency. Suppose kid wants to disclaim father but doesn’t have
another person to support her. That could put state on hook.
also MOM’s rights limited. She couldn't act alone, she'd need to act w/ alleged biological father. Why? 
Don't want kid to be w/o father figure (state interested b/c of $)

Michael Carol Gerald

What if he had never raised kid, Why is she so intent on excluding Why can he challenge
should he have interest in proving Michael? presumption on his own?
paternity?  He's rumored to have  He's wronged party

46
  His kid = biology anger issues (obituary!) (cuckolded) so § gives
 Nguyen: bio connection is  Reminder of the affair him the most power
an opportunity to have  If Michael established as If Gerald already knows about
relationship legal father he's going to affair, why not just make him
 What if just locked out by try to get visitation, stepfather? Why keep as legal?
mom? custody, etc.  want to see child after he
and wife have falling out

Why Ps lose under DPC? Michael's & Victoria's claims seem to have classic SDP claim.
see Meyer & Pierce, deep rooted history of being able to raise ur child. Man is biological dad, has relationship
 he has a right to participate in rearing child, and completely cut off. Seems like a CORE due process claim.
1. Distinguishes prior cases all about keeping families together, Michael is trying to tear family apart.
Thus earlier DPC about parental interest don't apply. (successful DPC claims by dads’ kid taken into
state custody after mom dies, never married, assumes dad unfit)
o (-) Michael feels like he is KEEPING relationship together, not tearing apart. He is dad;
whatever marital disruption it’s gonna cause has already happened
2. Michael has DP interest, but so does Gerald, and state can choose one over the other, ct neutral
respect state choices
o (-) ct not actually neutral “adulterous, natural, father” (think Scalia’s dissent in Romer, only
rhetorically neutral but his personal view pretty clear, homosexuality just like bestiality,
polygamy, child abuse)
o Is Scalia right that state needs to choose between Michael & Gerald? No; both could
potentially have relationship w/ child. Scalia’s history: you only get 1 legal father
3. Rejects Victoria's DPC; we have historical tradition of 1 legal parent.
4. In considering DPC, courts should consider claims as CLOSELY as possible, then consider against
historical record
o Scalia's history acct. Key sentence is Fn.6: “Though the dissent has no basis for the level of
generality it would select, we do: We refer to the most specific level at which a relevant
tradition protecting, or denying protection to, the asserted right can be identified.”
 When looking at history, look at the narrowest level of specificity  how would this
P fare under common law (14A when ratified)? If would lose under common law,
lose modern DPC as well b/c not US tradition
 Under this approach, winners are ppl challenging real novelties (§: no one can
marry). If you challenge § that's been around for a long time (like CA §), you will not
have successful claim b/c would have lost at common law. Scalia skeptical of SDP, &
he’s fine that under his approach most stuff fails.
 Under Scalia's approach, very few would survive SDP
 Griswold would come out diff b/c common law deep seated prohibition on
birth control
 Zablocki maybe can win b/c new statute on poor ppl marrying
 Loving, Scalia would race discrim take care of it EPC violated, but no DPC
violation
o In contrast, Brennan's dissent look to history, but look in broader way  what are the
important values of US tradition? Common law not conclusive
 is relationship b/t parents & children important? Yes, so can be in Michael's favor.
Look to history to see what are themes & values. Does their claim invoke these
important historical values (not exact same claim)?
Summary: Widespread agreement when you are trying to figure out rights of what is included in ordered
liberty, that you look to America's history (b/c otherwise you just insert your thoughts = Lochner). But
disagreement about what looking to history means. Look and see themes (Brennan) or this P would have
won/lost at common law (Scalia)
47
Michael H’s approach again in Dobbs (how would P fare into 1868 when 14A ratified, if you lose then you
lose now)

FAMILY & THE BODY: Sexual Orientation and Privacy

Why did court want to just apply to same-sex? (not a sex-specific law) Court treating as if it only applies to
same sex sodomy b/c criminalizing diff sex sodomy would be more constitutionally VULNERABLE.
Why would a state criminalize same-sex sodomy and then rarely prosecute?
 Criminalize? Does LOTS of work! Sends message of moral disapproval; evidence that ppl used threat
of sodomy charges to secure assistance in other cases (police/witnesses); far reaching effects for
LGBTQ  courts used Bowers to reject EPC claims for LGBTQ, Bowers used in child custody (my ex
lesbian, she is participating in criminal acts, so even though not prosecuted for sodomy, mom could
lose kids); Kids couldn't set up LGBTQ alliance clubs
 Why rarely prosecute? Hard to catch ppl in the act (evidence); not really a victim (consensual, thus no
one reporting); limited prosecutorial resources; laws kept on books because NO prosecution (w/
prosecution = unpopular) SO, this is a way of expressing homophobia w/o actually taking a political
hit for it (harms aren't as vivid as ppl going to jail)

55. Bowers v. Hardwick (1986) (White)

Hardwick charged w/ violating GA § criminalizing sodomy (not sex-specific statute); committed sex act w/
male in his own bedroom. Does const confer fundamental right for gay ppl to engage in sodomy? NO, § fine.
 Privacy case law does NOT extend to homosexual sodomy. Griswold, Loving, Society, Meyer were
about families & whether to have kids. Not gay sex.
 Sodomy doesn’t fall into either 1) fundamental liberties (implicit in concept of ordered liberty) OR 2)
liberties deeply rooted in nation’s history/tradition
 AND we’re not falling into Lochner trap by taking more expansive view.
 Since not fundamental, ordinary RBR applies, and moral basis pass scrutiny. Law fine.

Why states prohibit same sex sodomy? Instill moral views

Why theses laws rarely enforced? Hard to prove; expressing stigma is enough; no harm

Why/How did Bowers uphold anti-sodomy laws?

 Very narrow framing of claim: engaging in same sex sodomy
o While § only says “sodomy”, Ct treated the case as only applies to homosexual, b/c don’t
want to criminalize inter-marriage sex
o Bowers doesn't define this as sweeping laws of intimacy, right to be left alone, etc. Instead,
very narrow. Think Scalia in Michael H.  interpret DPC in most narrow way possible (i.e.
would it win at common law?). White does not think about any of the broader themes.
 Distinguishes from earlier successful DPC challenges, finding gay sodomy not fundamental right 
ordinary law, RBR applies
o Bowers not about marriage, procreation, etc. so not relevant
 RBR: majority in GA electorate think homo immoral and unacceptable
o Morality is enough to pass RBR (see Stevens dissent)
 Present a particular acct of history: long tradition of criminalizing same sex sodomy
o later criticized by historians that any sex outside marriage was criminalized at common law
(adultery, fornication…)

48
Ct was not yet willing to go ahead of public opinion on homosexuality; public opinion on status of same sex
sexuality had not evolved much from common law baseline (no widespread moral consensus). But tho 1986
& AIDS epidemic hot right now.
Assume no consensus about homosexuality. Is that enough of a reason to uphold sodomy laws?
 Brown is only slightly ahead of popular opinion; Bowers would have been hella ahead of popular
opinion
 Lochnerism on either side: Incorrect factual assumptions & if voted the other way, then could argue
you're reading normative view into const b/c it wouldn't necessarily be the dominant view at time.
 not willing to spend social capital. H said she doesn’t actually think justices thought would be big deal
(Powell last second switch to uphold law)

Burger, concurring no fundamental right to commit homosexual sodomy, Judeo-Christian moral model

Powell, concurring  No fundamental right, but could be struck down under 8A; 1 year minimum for act
committed in private is pretty bad. BUT no one argued 8A

Dissenting (Blackmun + Brennan + Marshall + Stevens) Majority wrong framing. Not about fundamental
right to engage in gay sodomy, this is individuals’ privacy right. Most valuable right is “right to be left alone”.
 Morality not sufficient to upholding law for RBR “neither history nor tradition could save a law
prohibiting miscegenation from constitutional attack”
 Need to analyze claim in light of VALUES that underlie const right of privacy. In construing right to
privacy, court has proceeded along 2 routes:
1. Recognized privacy interest w/ reference to certain DECISIONS that are for individuals to make
o DPC cases have been characterized by connection to protection of family, BUT they are also
about choices which make someone an INDIVIDUAL. It is a fundamental interest of
individuals to control nature of their intimate associations w/ others  extends to unmarried
2. Recognized a privacy interest w/ reference to certain PLACES w/o regard for the particular
activities which the individuals who occupy them are engaged
"Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of
freedom." Connections b/t this case & Loving  many parallels

Many ppl argued the dissent Blackmun wrote in Bowers was what he should have written in Roe. Blackmun
sees Bowers as a chance to redo Roe and talk about right to privacy more effectively.
 On the other hand, many ppl have been critical of how he phrased his dissent: Why is he comparing
homosexual sodomy to obscene movies and interstate gambling? He is not endorsing same-sex
sodomy as equally valid as heterosexual

Blackmun: "the right to be left alone" is the most valued right

 (-) Same-sex marriage is about getting license, you want state to intervene in essence
 he said "valued by civilized men" b/c maybe right to be left alone is what rich men want. If poor, you
might want safety net which is NOT being left alone. There is some ambiguity on if Blackmun is
referring to people or to men.

Context: What changed between Bowers and Lawrence?

 Pro-LGBTQ had grown stronger
 By time Lawrence decided, only 13 states still had anti-sodomy laws (rarely enforced). SO, by this
time, decision not anti-majoritarian. It is anti-federalism law  outlier states can't be outliers
anymore, bringing them into majority.

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 o fairly common of SC civil rights law; waits till majority, then forces rest of states to follow.
 Court had begun to distance itself from Bowers (Romer didn’t cite Bowers. In some ways Romer
doesn't need to cite it (b/c it's EPC not DPC), but still odd).

56. Lawrence v. Texas (2003) (Kennedy)

 explicitly overturn Bowers; law criminalizing consensual private noncommercial, adult sodomy unconst
under DPC
TX § illegal for same-sex persons to engage in sodomy. Lower court relied on Bowers. Does § criminalizing
consensual adult intimacy in home violate liberty & privacy w/I DPC? Yes, law struck down. Bowers overruled.
 Court answered WRONG Q in Bowers. issue at stake is the most private of human conduct (sex) in
the most private of places (home). Bowers did NOT rely on full account of history. Obligation to
define liberty of all, not mandate our own moral code
Precedent falls: Foundation of Bowers has sustained serious erosions from other cases (Casey & Romer); No
detrimental reliance on the Bowers decision
 Stevens dissent better: Individual decisions concerning intimacies, even if not procreating, are part of
liberty under 14A
TX § furthers no legit state interest which can justify intrusion into personal & private life of individual

In overruling Bower, did court adhere to Casey standard?

1. Workability
2. Reliance: Ppl aren't relying on Bowers; opinion explicitly talks about that
3. Change in surrounding doctrines: Maybe you could cite Romer?
4. Changing in facts/perception of facts: Disputed history of facts used by Bowers
H: her view is that court just thinks Bowers was wrongly decided

Does Lawrence recognize a fundamental right, which is protected by strict scrutiny (Zablocki)? Or does it
treat like ordinary legislation subject to rational basis review? Or something in middle (Casey)?
Does not affect a fundamental right. Evidence? Does affect fundamental right. Evidence?
 Court never uses the word fundamental  Court never says it is NOT saying
 "TX § furthers no legit state interest which fundamental right.
can justify intrusion in to personal/private  Overruling Bowers, which focuses so much
life"  sounds like RB b/c NO reason on fundamental rights
 Also cites Romer, which is RB  Cites Griswold recommending fundamental
right to privacy.

What’s Lawrence stand for, how far does it extend? E.g. after Lawrence, is prohibition on living poly unconst?
 (+) just like Lawrence thematically, right to live w ppl you love, form your own household
 (-) polygamy is so fundamentally diff; long history of criminalizing both poly marriage and poly living
 Bottom line: hard to know how broadly to read Lawrence.
o Most capricious reading: Lawrence recognizing fundamental right to privacy; or private adult
consensual non-commercial sexual privacy
o Limited reading: Lawrence just says TX § fails RBR.
o Think Kennedy in Romer, ambiguity abt just saying § fails RBR, BUT actually doing RBR+ in a
way that has complete deniability (here Kennedy not even clarifying what test is applied)
Ambiguity (by design) is a plus on Kennedy's side. Saying all these nice things, but not committing himself
doctrinally to fundamental right

[themes: Bowers about defining the claim as narrow as possible, how would they fare under common law
back then; Lawrence much broader, thematic view of history  deep themes of US history, sexual privacy,
intimacy, companionship, family relationship etc.]

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Is morality a legitimate state interest? Passage says morality is NOT.
 Bottom of p. 6 to top of p. 7 say Stevens Dissent in Bowers should’ve control (morality not sufficient
for RBR, nor history)
o IF Lawrence is recognizing a fundamental right (SS), THEN moral concerns are NOT sufficient
to override a fundamental right
 The fact SC saying morality not legitimate  not applying ordinary RBR (also w
ordinary RBR, ct should come up w post hoc reason i.e. public health)
o BUT, if not fundamental right, then the passage is more surprising b/c saying that morality
alone is not enough of a basis to pass RBR
 If ordinary leg (Williamson) state CAN infringe on personal choice, so here suggesting
not quite pure RB
o Many laws have morality PLUS other reasons (murder: morality PLUS something else)
 Could cite Lawrence for idea morality is not interest under RB. But could also say court was talking
about fundamental rights, and thus morality fine under RB.
TX should’ve add public health to state interest.

Lawrence consistently uses the word liberty NOT privacy. Kennedy trying to tie right closer to Constitution
textual.
 Alternative way to address would be equality. Briefs did that. TX criminalizing same-sex sodomy not
separate sex sodomy and that violates EPC.
 Alternatively, could have said based in same-sex discrim, and that is Intermediate scrutiny.
Disadvantage to adding EPC? Advantage of EPC?
 If statute rewritten differently (to apply to  Could identify same-sex as quasi class (+/-
everyone), then could be fine. depends on where you sit. B/c doing that
 If goal to get rid of Bowers, then can't would commit view to other laws)
overturn Bowers on EPC.  SC obviously doesn't want to decide
marriage yet!

Ex of EPC & DPC overlap

 Ordinary leg subject to RBR under both
 EPC-IS for suspect class OR infringement on fundamental right
o Rodriguez, if ct have held there’s fundamental right to ed, then EPC IS & DPC SS
 Even when case officially just DPC, EPC still influence
o Lawrence about liberty, but also motivated by equality concerns, and sets the stage for
moving EPC towards sexual minorities (Lawrence could’ve been decided on both or either
grounds)

FAMILY & THE BODY: Same-Sex Marriage

Context: Same sex marriage prohibited at common law; 1970s states rush to put explicit prohibition on same
sex marriage into statutes (~inclusion of “male” in 14A, original const doesn’t have to include “male” b/c
everyone thinks ppl = male)
Obergefell is anti-federalist, but not anti-majoritarian

57. United States v. Windsor (2013) (Kennedy)

1996 Defense of Marriage Act (DOMA): marriage = 1M+1W; state doesn’t need to recognize same sex
marriage of another state.

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2 women; married in Can, living NYC. Spouse died, widow denied tax benefit b/c DOMA. Suit challenges
marriage definition: 1 man + 1 women, used for ALL federal law. Unconst, violates EP under 5A (fed) 
deprivation of liberty & § has no legit purpose & NO purpose overcomes its animus. (holding confined to
lawful marriages).
 Lengthy discussion on family law is state decision, inherently local.
o Harms of DOMA influenced by federalist concerns (couple + state harmed). BUT doesn’t rely
on federalism argument (that fed gov involved itself in family law) b/c there’re soo many fed
family too disruptive.
 Instead, DOMA violates DPC and EPC:
o Twice quotes Romer: "discrim of an unusual character especially require careful
consideration"
o Deprives same-sex couples of rights & responsibilities (and hurts states too): emotional and
monetary loses, state losses (FAFSA), bad leg history re morality, frustrates state choice

Roberts, dissenting  fed gov has interest in stability & uniformity. Marriage state thing, but more
fundamental question at issue. Seems to tee up idea that federalism allows STATES choice for marriage

Why does Kennedy strike down Section 3?

 Both EPC & DP violation
 Statute purpose only seems to be to demean same-sex couples: Under EPC basically applying RBR+,
Romer & animus brings it all down (rationale basis +  animus in barrel taints everything else;
Kennedy goes one step further and says animus is only reason)
o Windsor easier in applying RB+ than Romer b/c no leg history showing animus
 DPC, Kennedy explains harms (so says DP violated), but doesn't say much else about how it falls into
DP or fits into cases (like, does it say there is a fundamental right. . . ?)
 Not clear how EPC and DPC doctrinal argument plays out. Very Kennedy.
o One reason for doctrinal ambiguity is don't want to confine themselves to anything in future
cases  flexibility, one step at a time, just the fed level
Does SC engage in intermediate scrutiny discussion (like 2Cir apparently did)? No.  maximum flexibility
Why would SC not get into the appropriate level of review? By citing Romer they can "heighten" basis of
review w/o committing themselves

Windsor's implications on same-sex marriage? Nothing nationally; just if state recognizes, then fed needs to
Windsor explicitly saying NOT deciding on the constitutionality of same sex marriage
after Windsor state prohibitions on same-sex Windsor says states can't discrim?
marriage okay, Windsor doesn’t naturally lead to  Windsor linked prohibition on same sex
Obergefell marriage w animus against homo, Romer
 majority's essay on federalism  these  Themes DOMA created is "second class"
decisions are left to the state, respecting marriages; thus if a state doesn't recognize
state in reg marriages another state's same-sex marriages, that
makes those marriages second-class 
Kennedy said bad
 Zablocki: marriage IS fundamental right

SOOOOOO FAST!! 22 years from inkling to Obergefell. By Obergefell, 37 states had legalized gay marriage
 Court acting after majority of states acted

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  Not anti-majoritarian, but anti-federalist (sweeping up remaining states). BUT slightly different b/c
most of the state decisions are due to state court action (not necessarily democratically enacted §)
and some of those state court decisions are in response to Windsor (so SC played a role).

58. Obergefell v. Hodges (2015) (Kennedy)

Same sex marriage ban. Strikes down.
History: Kennedy’s ode to marriage
 Throughout HUMAN history marriage is a universal underpinning (cites Confucius)
o Also building block and old American idea
 Marital relationship is unreplaceable, and unique (even above parent child relationship), as
understood at common law
 Marriage is for everyone, transcends history, class, religion, etc
 Marriage gives ppl dignity, locks ppl into larger social networks, creates social bonds
Ps chosen seems exemplary of citizens (dying bed, veteran, adopted special needs kid): like Windsor;
highlight marriage can do to help society and care for each other
Ct’s framing of opponents of same sex marriage: “in good faith by reasonable, sincere ppl”, “decent,
honorable religious or philosophical premises”
 Think Brown (racism w/o racists; they didn’t know), no one has bad faith (bigot) it’s all good faith 
make opinion more acceptable and not so disruptive
o BUT diff. In race, the court explicitly rejects religious defenses for racial hierarchy. Court has
NOT said that in sexual orientation context.
 Reaction to Scalia’s plurality in Romer calling majority of ppl in CO irrational bigots, that this is sth ppl
can disagree about
 Kennedy might truly believe that, and maybe describes him.

Drawing on comprehensive themes in prior case law, Kennedy talks about 4 pillars of marriage:
1. "right to personal choice regarding marriage is inherent in concept of individual autonomy" 
Loving; who you marry is a basic act in self-definition
2. Intimacy: right to marry is unlike any other, older than BoR Griswold
3. Safeguards families, drawing on related rights of childrearing, procreation, & ed (Pierce & Myer).
4. Marriage keystone of social order according to traditions. Societal & emotional benefits.
Kennedy really focuses in on LIBERTY. Says right to marry w/I liberty; same sex marriage meets the 4 pillars of
what makes marriage fundamental, so LGBTQ should have that right. Doesn't touch on "privacy" argument
b/c Kennedy learned to stick to constitution's text.

Who does Court strike down prohibitions of same-sex marriage?

DUE PROCESS: On the courts account how does history guide courts DP analysis?
 Informed by history, but not determined by it. Look to history for evidence of right, but not bound
by Scalia's common law limits or his specificity. Asking about what THEMES are invoked.
o One way to understand is a rejection of Michael H approach; can also be seen as a rejection
of Bowers (“just a right to engage in Sodomy”)  here it is not just about whether same sex
couples can marry, it's about whether same-sex couples can form these relationships and
fully participate in society
 Does NOT overrule Zablocki framework, but also doesn’t apply it. Instead, Kennedy's 4 pillars of
marriage: Individual autonomy, intimacy, children, social order. Which offer diff way to look at
infringements on marriage & WHY marriage fundamental.
o Right to marry fundamental b/c serves interest of 1) individual autonomy, 2) intimacy (to
have coupledom), 3) children (more stable, no state reliance), 4) promos social order
 Same sex marriage serves all those interests. If ppl who want to marry can satisfy
these 4 criteria it seems as if, from Obergefell, they're in
EQUAL PROTECTION: R-side of page 8, what issue Obergefell leaves out?
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  Does NOT answer level of scrutiny question!!!!!
 If wanted to argue Obergefell bolsters case for IS what would you rely on?
o Don't seem to be making pure prejudice argument
o talk about the immutable nature of sexual orientation & history of discrim
H: safe to say Obergefell moves ball toward IS, especially w/ language of "immutability"

How does Obergefell ct understand its own role & relationship to social movements?
 L-side of page 9: If you have a const right, the court can enforce & don't have to wait for legislature.
BUT why do they then start by saying there was so much legislative discussion about this?
o Ct want to play both sides. Ppl have been thinking about this for a LONG time (not imposing
views, ppl have debated), BUT also don't want to say "just wait for politics" b/c then WHY
have courts? So don't need to have a successful social movement to win.
o Recognizing same sex marriage is impossible w/o a social movement (true of any advance in
EPC); theres lotta support for same sex marriage
o BUT also ct have obligation to uphold the const and not just whats popular

Obergefell a progressive decision? Obergefell a conservative decision?

 Even though 37 states had legalized same-  Celebrating marriage as the CORE
sex marriage, most were based on court relationship
decisions (not legislation). So popular  Also think about the 4 pillars of why
opinion moving, but Obergefell still ahead marriage fundamental. One of those pillars
(req federalism), sea change for all states is that marriage upholds social order
 DOMA passed 1996; This is so quick (conservative idea, domestication).
 discussion of history  we don’t always see  Doesn't challenge that marriage should be a
injustice while it is occurring. So look to function where many other benefits (health
history for themes (not whether someone insurance, etc.) dealt out (still thinks that
won under common law) fine, just inviting more ppl into club)
 Doesn’t recognize animus as motivation for
same sex marriage prohibition, frames its
objection as legitimate objection not
bigotry (opens the door for ppl to opt out,
e.g. 1A rights case)
 Great emphasis on 2p marriage, stopping
polygamy train
 Also doesn’t acknowledge bi or gender fluid

Can you use 4 pillars to challenge polygamy prohibition? Pro social order: built in childcare; preserving family
units.

FAMILY & THE BODY: Abortion

One of the things that is striking in Roe is its emphasis on doc/patient relationship & medicine.
 Talk in trimesters  that is how DOCs talk about preg (not only way to think about it though)
 Lengthy discussion about AMA's opinion, which is NOT constitutionally relevant.
 Blackmun was general counsel to Mayo before this!

59. Roe v. Wade (1973) (Blackmun) 7-2

Trimester framework; gives term right under 14A liberty = privacy – fundamental right. SS.

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Roe couldn’t get abortion under TX statute (punish docs). Argued: invaded personal liberty w/I 14A; violated
personal, marital, familial, and sexual privacy in BoR penumbras; violated rights reserved to 9A.
 HISTORY of abortion. Say w/I history, criminalized abortion primarily b/c of 1) concerns about safety
in med procedures, and 2) protecting prenatal life
 Review: Constitution does not explicitly mention privacy, but court has recognized right of personal
privacy in certain contexts: some activities related to marriage, procreation, contraception, family
relationships, child rearing & education
This court: RIGHT OF PRIVACY IN 14A. But not absolute & can be reg by state. State limitation may be
justified only by a compelling state interest AND leg enactment must be narrowly tailored to express only the
legit state interest at stake.
 So Roe is abortion = fundamental right to privacy  strict scrutiny (state’s interest become
compelling via viability)
 State interests: 1) preserving/protecting maternal health, 2) protecting potentiality of fetal life
State crim abortion § of current TX type, that excepts from criminality only lifesaving procedure, w/o regard
to pregnancy stage and w/o recognition of other interests involved, is violative of the DPC of 14A.
1. For stage prior to approximately end of 1st trimester, abortion decision & its effectuation must be
left to med judgment of preg' woman's doc.
2. For stage subsequent to aprox end of 1st trimester, State, in promoting its interest in health of W,
may regulate abortion procedure in ways that are reasonably related to maternal health.
3. For stage subsequent to viability, State in promoting its interest in potentiality of human life may
regulate, & even proscribe, abortion except where it is necessary, in appropriate med judgment, for
preservation of life/health of mother.
o Viability  it's medically possible to survive outside (not that every baby would survive)
o Why did Roe limit the right to abortion after the first trimester?
 State's interest in fetal life > women's right to privacy
 (-) Left critics questioned whether viability should matter when baby is still in W’s
stomach, generally American law chooses liberty over life (e.g. no duty to rescue in
torts; no obligation to donate organs)
 (+) Right critics say Row is Lochner.

Why did Roe recognize constitutional limits on a state’s ability to restrict abortion?
 Roe’s basic theory for why const limits on state's ability to regulate abortion  b/c women have
fundamental right to terminate preg based of privacy grounded on DPC. Court's theory is that a
right of privacy is implicated (reading of word liberty in DPC)  Roe not going penumbra route
o this const right to privacy under DPC relies on previous cases: Griswold (privacy, birth
control), Loving (interracial marriage), Meyer/Pierce
Who's right to privacy is being protected? Some language suggest women's right to privacy (p. 8) BUT
repeated times in Roe where court suggest right to privacy is right of physician not preg woman (framed as
medical decision not W’s choice: doc autonomy, decision, privacy, trimester medical idea).

Why didn’t Roe apply intermediate scrutiny under EPC?

 Geduldig (1974): preg discrim is not sex discrim (not drawing line b/t M/W). So preg reg does not
trigger IS, only RB.
 Roe decided in 1973. Craig (definitely establishes IS) not decided until 1976. Not surprisingly the
court doesn't think in EPC terms (EPC & sex discrim just started), b/c it doesn't have much to go off
of. In contrast, DPC & birth control has much more ground  Including Griswold (privacy)
 (POST) For disparate impact (easy to meet), § would have to show animus (Feeney) = hard.

Does Roe suggest that you need to donate blood/organs/etc? You have a viable fetus in your womb. State is
making you choose life over liberty. SO, if you think that is right in Roe, maybe that suggests all of American
law should be life over liberty (kidney donation legally required not choice). DO we think that's right?
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  Y b/c w/ pregnancy there is some element of personal choice. (-) kidney to child argument
 potentiality argument. (-) b/c if you have obligation to save anyone it should be for a life that is
already OUT. Thus, if there should be legal compulsion for life>liberty it should start w/ ppl that are
born not w/ fetuses. BUT, in fact, we do opposite where we choose life>liberty for fetus, but choose
liberty>life when born.
 Compelling kidney donation v prohibiting abortion: more drastic infringement on liberty to COMPEL
action than prohibit action. (-) Maybe that argument works for kidney donation, but that doesn't
work for blood donation which is such trivial action.

Is Roe an example of Lochnerism?

 Roe says we’re not doing Lochner we know Holms dissent was right.
 YES. Rehnquist Dissent
o Overturning democratically enacted statute
o Ct is making policy judgment that is for legislature (1/2/3 trimester is like legislature;
regulating ALL of abortion, not just case before them = superlegislature)
o Imposing normative views into const (viability): not medical experts, just like Lochner ct not
economists
o Incorrect factual assumption: (anti-abortion ppl say) life begins at conception and Roe is not
recognizing that
 Roe explicitly doesn’t have a view on when life begins; implicitly, at viability

60. Planned Parenthood v. Casey (1992) (O’Connor) (plurality opinion)

Affirm Roe + Undue Burden Test (IS)
Uphold 24h waiting period b/t doc visit and abortion.
PA abortion § w/ five provisions. "Essential holding" of Roe re-affirmed. Essential holding has 3 parts:
1. Recognition of W’s right to choose to have an abortion BEFORE viability and to obtain it w/o undue
interference from state. Before viability state's interests not strong enough to support prohibition of
abortion or imposition of substantial obstacle
2. Confirm state's power to restrict abortions AFTER fetal viability (if § contains exceptions for health)
3. State has legit interests from the outset of pregnancy in protecting health of W + life of fetus

Stare decisis important, respect for precedent: Ct saying even tho Roe not necessarily correctly decided in
1973, it would be inappropriate for Ct to overturn Roe. Stare decisis has 2 parts:
 1) How much reliance has there been? Reliance of W on abortion
o More reliance, more tendency to keep things same  Reliance argument: ppl have relied on
the possibility of abortion so no forced childrearing (-) no reliance on Row b/c ppl don’t
organize their life/choice around Roe
 2) is there settled expectation that its wrong or still debated ? no consensus that Roe was wrong but
instead very contested, so overturning would show court buckling to political pressure
o if there were consensus that Roe was wrong like anti-abortion movement win, then ok to
overturn. Too much controversy now, since Roe already in place we’re gonna stick to that
o Ct afraid that if change Roe it would seem like taking sides w anti-abortion in this political
dispute  make ct less legitimate [SC cares only about itself]
 (-) ct in declaring not involving in politics has involved in politics – if you think Roe
was wrongly decided and not overturning b/c don’t wanna look political, it’s in fact
political
Are there good reasons for the court to interpret Constitution in ways that respond to societal pressure,
populace understanding?

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  Yes, to a certain extent they need to take it into consideration. Brings up Lochner  where they
don't address societal concerns, their legitimacy takes a hit
 one way of reading Casey is that we're resisting Roe framework b/c not enough of a societal
consensus. Although court positions itself that it doesn't want to respond to pressure, the court is
very aware of its place in society and anti-abortion movement.
Is Lawrence overturning Bowers consistent w this view of stare decisis?
 (+) statutes were not criminally enforced to do what they purported to do; Lawrence then can clearly
see sodomy prohibition being retracted, so not a sea change, whereas anti-abortion movement was
still hot

stare decisis is not absolute, but you need to think about certain things b/f departing. In deciding whether to
depart from NORMAL stare decisis analysis:
1. Is Roe's central rule unworkable? No
2. Can rule's limitation on state power be removed w/o serious inequity to those who relied upon it ?
No. W ability to participate in economic/social parts of life been facilitated by ability to control repro!
3. Whether law's growth in the intervening years has left Roe's rule a doctrinal anachronism ? No.
Developed from Griswold which is safe.
4. Has Roe's premise of fact so far changed as to render central holding irrelevant or unjustifiable? No.
BUT this is more than “normal” stare decisis. Thus, need to rely on two cases for framework:
 Lochner  West Coast (factual underpinnings): Rested on fundamentally false premise that ppl had
bargaining power w/ bosses
 Plessy  Brown (understanding of facts): Society's understanding of facts upon which Brown ruling
fundamentally different than Plessy ruling
Casey not like above 2 case. AND sticking to precedent is IMPORTANT for legitimacy of court, especially on
hotly divided issue. NOT overruling. . . but clarifying some things:
 3-tri rule too rigid. Line should be viability
 State can take steps to make sure W’s choice “thoughtful & informed”
 Undue burden: Regs which "do no more than create structural mechanism by which state, or parent of
minor, may express profound respect for life of unborn are permitted, if they are not a sub obstacle to W’s
exercise of right to choose. Unless it has that effect on her right of choice, a state § designed to persuade her to
choose childbirth>abortion will be upheld if reasonably related to goal. Regs designed to foster health of W
seeking an abortion are valid if they do not constitute an undue burden."
all provisions of PA § fine, except for husband approval one (and recordkeeping related to that)

How does Casey differ from Roe? (does create modern framework for abortion that persist to this day)
1. Casey provides more of an account of abortion as a women's right (not a doctor's right). Roe says
very little of why a W might want an abortion.
 L-hand pg. 4: W have legit reasons for not wanting to be pregnant; pregnancy affects the rest
of their life. H says this is not revolutionary BUT this paragraph is not in Roe.
 Note that Casey, like Roe, doesn't invoke EPC (b/c Geduldig problem). EPC is equality, DPC is
liberty. BUT paragraph does bring up equality & autonomy concerns (thus EPC)
2. Casey abolishes trimester framework  takes abortion out of fundamental right framework.
Standard is UNDUE BURDEN (IS). Therefore, state can start restricting/regulating abortion (pre-
viability) as long as doesn't impose undue burden. If viable fetus, state can def prohibit abortion
(after med advances, trimester & viability don’t line up well)
 Undue burden is not fundamental right analysis we see in Zablocki. Abortion is its own thing.
It's some type of intermediary standard floating in middle (like IS)
1. Infringements on Fundamental Rights Strict scrutiny (Zablocki)
2. Abortion Regulation Undue burden analysis (Casey)
3. Ordinary Economic & Social Legislation  RB review (Williamson)

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  Interest for state starts at conception. SO, state can regulate, just can't impose an undue
burden until viability.
3. Roe recognized 2 state interests: 1) maternal health; 2) fetal life; Casey adds 3) persuasion
 Under undue burden standard, state allowed to enact persuasive measures which favor
childbirth over abortion

24-hr waiting period of PA law? NOT an undue burden.

 What state interest did the 24-hour waiting period serve? Not maternal health nor fetal life, but
persuasion. State's interest in trying to convince women to choose life over abortion.
 Why does this not impose UB?
o No health risk + not a big enough obstacle.
o PP actually has evidence that this 24 hour does impose burden on poor women or women w/ DV.
So why not big enough? Court doesn't really say reason. Just says, "not enough"
Husband notification req? YES an undue burden.
 court points out that it doesn't matter that husband group so small (contra 24hr above). H says the
24 hour and husband might be the same group!
 24-hour might not be total burden; whereas this husband thing could be preventative. Husband
could physically lock doors; whereas 24 hours, W free to come back.
 Very much an equality theme (EPC). Casey understands husband notification as inconsistent w/
equality, so again, equality themes, but as doctrinal matter, this is all under DPC

61. Dobbs v. Jackson Women’s Health Organization (2022) (Alito)

Overrules Roe & Casey.
Upholds MS § prohibiting abortion after 15weeks of pregnancy unless medical emergency or severe fetal
abnormality. Inconsistent w Roe & Casey b/c 15weeks b/f viability.
 No reference of abortion in const. No abortion right implicitly protected under 14A DPC.
o To be protected by DPC, must be deeply rooted in nation’s history and tradition, and implicit
in the concept of ordered liberty.
o Since 1868 Congress who passed 14A didn’t think imposing restrictions on abortion  14A
DPC does NOT. (Michael H, Romer dissent)
 (+) Preserves judicial restraints & thankful to original understanding of DPC
 (-) abortion b/f quickening is not crime at common law; the “democratic consensus” in 1868 is not
democratic consensus that included women
 Doesn’t really get into balancing fetus vs mother rights (could pass RBR tho), but breadcrumbs of
potential interests in fetal personhood

Dobbs account for overturning & not abiding stare decisis

 “Roe was egregiously wrong from the start”
o Compared Roe to Plessy & Lochner
 Roe & Casey hasn’t settled anything, but inflamed debate and division  overturning Roe will
settle/reduce division
o (-) not the Roe opinion but abortion itself becomes political issue
o Maybe Dobbs will make it even more inflammable, but ct wont consider that. P.23: “we do
not pretend to know how our political system or society will respond”, even if we could we
have no authority to let that influence decision.
 (-) Dobbs reason for overturning Roe was it inflamed but ct don’t care if Dobbs itself
inflames
 Response to Casey reliance argument (W relied & organized their lives around the possibility of
abortion): ct can endorse concrete reliance, but here W’s reliance too amorphous ct cant assess

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 o Think SFFA, ct cant know so applied SS
 BUT think when ct dose know things, Romer (your real reason is animus); Loving
(racist claptrap)

Equality and W status in society

 Only 2 references of equality in Dobbs: 1) 1st para some say abortion reg invades W’s right to her
body and prevent from achieving full equality; 2) comparing Roe to Plessy (racial equality)
 Dobbs rejects EPC argument: Geduldig, abortion reg is not sex-based classification, thus not
subjected to heightened scrutiny (preg v non-preg, not M v W)
 Abortion not as important & not having access to legal abortion not a big deal as it woud’ve been in
1973  modern developments
o Fed and state laws banning preg discrim; FMLA; cost covered by insurance; adoption; etc.
o (-) maternal mortality rate still high; all these benefits can be voted against; adoption options
not that great; social safety net actually not that great w aids or benefits
 Political changes: go to politics if you don’t like it, and W have considerate political power
o (-) ppl who would be denied access is disenfranchised, e.g. voting age; even W majority of
voting population in MS, W not majority of state leg

Dobbs implications for abortion

 Congress can prohibit abortion if it wants to and has the vote
 States can prohibit abortion if it wants to, has the vote, and no state constitutional obstacle
 States do NOT have to allow abortion to save mother life b/c could pass RBR
 Debates about what counts as abortion
 Interstate abortion conflicts (Kavanagh thinks theres right to travel and cant do interstate
prosecutions)
 Fetal personhood a big issue (end goal for many anti-abortion movement ppl)

Dobbs implications for substantive DP

 Majority: Dobbs just about abortion, not about substantive due process in general, we not talking
about Griswold or Lawrence b/c this has fetal life which is not in other cases.
 BUT, Dobbs might have implications for cases like Griswold, Obergefell, Lawrence
o p.10: “attempts to justify abortion thru appeals to a broader right to autonomy” proves too
much. Dobbs rejects this logic.
 Obergefell is the triumph of the idea that we look at history at the broad themes &
whats important value in US culture
o Thomas Concurrence  explicitly saying ct should reconsider all substantive DP precedents,
they all wrong (those rights may be considered to be whether included in P&I)
 He doesn’t mention Loving. He’s black. (loving about racial discrim so no issue; he’d
get rid of the last para about fundamental right to marry tho; also loving is not
controversial)

Dobbs implications for how ct thinks about itself

 Lochner lesson: the ct is in vulnerable position when it gets too far away from median voter
 Dobbs ct doesn’t seem to learn this lesson, or doesn’t think this way of judicial role  we don’t care
this is super unpopular its not relevant

Kavanagh Concurrence  Dobbs ok b/c we neutral, not legalizing nor prohibiting (kinda like Scalia)

Dissent (Bryer, Sotomayor, Kagan)  practical consequences of Dobbs: states free to enact all kinds of
restrictions, w/o exceptions, compel W to carry rapist or anomaly child, against W health and will

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  e.g. after Dobbs, § says no abortion even if to save W life  choosing fetus over mother could pass
RBR

Dobbs diff that ct (Alito) just seems doesn’t care about spending political capital here. In odds with e.g.
Korematsu, even Brown.

SC generally isn’t anti-majoritarian but anti-federalism. e.g. Griswold, Windsor. Ct going w what the society
going. BUT Dobbs very much controversial.

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CONGRESS POWER TO ENFORCE 14A
*Neither Boerne or Morrison very deferential to Congress "We the Court" law review article

62. City of Boerne v. Flores (1997) (Kennedy)

 must be congruence & proportionality b/t injury to be prevented/remedied & means adopted.
Church wanted to expand; TX rejected building application. RFRA (passed in response to a SC decision)
prohibited gov from substantially burdening person's exercise of religion even if burden results from general
rule of applicability UNLESS gov can demo compelling interest & it is least restrictive means of furthering
compelling interest. Applied to all fed/state gov. RFRA NOT w/I C’s §5 14A enforcement powers.
 C canNOT "decree the substance of the 14A's restrictions on state" There must be congruence &
proportionality b/t injury to be prevented/remedied & means adopted to that end.
o Why? Federalism! Separation of powers!
 No examples of modern laws based on religious bigotry (contra voting); RFRA thus OUT OF
PROPORTION to any remedial/preventative objective. Instead, substantive change = bad.
 And SO broad. "14A enforcement leg doesn't require termination dates, geographic restrictions, or egregious
predicates. Where, however, a C enactment pervasively prohibits const state action in an effort to remedy or to
prevent uncon state action, limits of this kind tend to ensure C's means proportionate to ends legit under §5”

PUNCHLINE: SC gets to decide what § 1 14A means (EPC, DPC, etc.); C when interpreting § 5 (enforcing 14A)
limited to what SC decided. SC authoritative (& essentially sole) interpreter of 14A § 1; C must stick to that.
 Boerne rejects that C can have own interpretation of religious freedom. NOPE! SC decides, C
executes.
 C can sometimes go slightly beyond, but has to be pretty close; need to show that almost everything
(95/100) prohibited by § would be found uncon. Congruence/proportionality. C cant reach too far.

Counterarguments?
Textual: text of 14A indicates MORE authority than Historical counter argument: leg history giving C
Boerne, C has independent right to interp 14A in would more robust enforcement power than
enforcement. suggested by Boerne
C wrote the law.
Const never says court is exclusive arbitrator AND §
5 explicitly names C as enforcer of 14A, while does
NOT explicitly mention Ct as enforcer. § 5 thus gives
C an independent authority.
13A counter argument: § 2 13A has very similar Structural counterargument: C is often able to
enforcement clause; Jones: case said that under C have/act on, diff reading of 14A w/o problem
enforcement power it could prohibit certain private hypo: SC upheld DOMA. Few yrs later C decides
actions. interesting b/c Court has never interpreted DOMA uncon & repeals. That’s legit (even tho SC
13A beyond chattel slavery BUT case gave C power said DOMA fine)
to go beyond that (thus broader vision of SC sets floor, not ceiling. C can provide more rights-
enforcement power in 13A should also be broader protective leg in fed gov, why not state?
vision in 14A)  (-): Why not state? b/c federalism. In fed
PLUS: Intra-textualist argument (read similar clauses gov, C has more power, but when we bring
the same through const) in states, then C less powerful (Response:
14A about constricting states, so we should
care less about states)

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63. United States v. Morrison (2000) (Rehnquist)
struck down; no state action, not congruent/proportional
C found states doing shit job of enforcing laws that implicated gender-based violence. Provided civil remedy
for victims. Broad law. C enacted using commerce clause & 14A §5. Morrison raped Brzonkala; VA Tech let
him back in school. Ps say bias in laws denies victims EPC and C acted appropriately to both remedy states'
bias and deter future instances. Ps say bias in laws denies victims EPC and C acted appropriately to both
remedy states' bias and deter future instances. Civil remedy law exceeds C §5 powers. Unconstitutional.
 14A only applies to discriminatory state actions, this is reaching allegedly discriminatory actions by
private individuals. Limits on 14A enforcement due to federalism. Primary limit: 14A only prohibits
STATE action, not PRIVATE conduct. NEED STATE ACTION.
o Why? Stare Decisis (Civil Rights Cases). Cases decide about this had ppl from 14A ratification
time.
 remedy is NOT corrective; and prophylactic legislation must have "congruenced proportionality b/t
injury to be prevented or remedied & means adopted"
o this is directed @ individuals, not state actors. And applies ALL over US (even though
reference to diff in geographic implications in C’s findings)
* majority's view would not be legit socially if commerce clause didn't reach so far; H agrees. Expansive
version of commerce allows court to have a state action doctrine

Counterarguments:
 Harlan's dissent in CRC: Remember first sentence is birth right citizenship clause  protects
everything that makes up citizenship (P&I-esque)  not fearing rape is included
 WHO the majority chooses as guides to meaning of 14A. Stare decisis  guess who else was around
at time of 14 ratification? Dissenters in CRC (who didn’t think state action requirement). And
CONGRESS! C passed CRA, and MEN WHO WROTE CRA basically same men who wrote the 14A.
o (-) they didn’t have the right motivations, white supremacy society
 What distinguishes CRC from Plessy? CRC decided closer in time to 14A. We've repudiated Plessy
doctrine (separate but equal), why do we need to think other doctrine (state action) is untouchable
 State action doctrine has real costs  1) private ppl can do TONS of stuff to limit others life chances,
2) and often it’s difficult to figure out what's private/public

Last paragraph: Are we a civilized society then?

 H puzzled by this paragraph, what is point? It seems like Rehnquist saying we're not civilized. But that
seems odd to H. She thinks point: I feel bad for her, but civil remedy pointless, V already has remedy
o In theory V has a claim, but in reality her case is over (SoL and no physical evidence)
 sounds like Rehnquist is calling V a liar (I thought that too); BUT apparently not the case b/c
procedure wise, case is going up the chain assuming her allegations are true

64. Nevada Dept. of Human Resources v. Hibbs (2003) (Rehnquist)

Remedy congruent & proportional: targeted shown gender discrim
Holds § 5 give C const authority to apply FMLA to state gov (abrogated sate’s immunity)
FMLA; Hibbs (male) wanted to sue ER for FMLA violation. EE caring for ailing wife; EE didn't come back to
work; was terminated.
Reminder: C canNOT redefine substantive elements of 14A and leg must be "congruent and proportional b/t
the injury to be prevented or remedied & the means adopted"
 THEN, SC says FMLA designed to protect ppl from gender-based discrim = IS
 Men being denied leave reinforces & makes true women’s role at home (Bradwell).

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History of discrim: "In sum, states' record of uncon participation in, & fostering of, gender-based discrim in
the administration of leave benefits is weighty enough to justify enactment of prophylactic § 5 legislation."
 Remedy is congruent & proportional: C had unsuccessfully tried to remedy via Title VII. Didn’t work,
so broadened statute to include ALL (in this case  broad nature a +). BUT narrow too: targets
work/family balance, only certain EEs qualify, limited time, unpaid, etc.

Suppose ER says "we don't offer leave" to ANYONE and you're terminated. Is that constitutional?
 Yep! No constitutional problem w/ a state having a no-leave policy, facially neutral
 Disparate impacts? Probs, but too bad. Likely no animus w/I creation of policy.
 Economic reg doesn't trigger any heightened scrutiny
Puzzling about Hibbs is that allows C, in enforcing 14A, to prohibit no-leave policies & REQUIRE public/private
ERs to provide leave.
 Remember, Boerne says C has to enforce SC version of 14A & has to be congruence & proportionality
(so, what C is prohibiting has to be almost identical to what SC would find). AND H says that no-leave
policies are probably constitutionally fine!  many thought Hibbs come out opposite.
How contradicts Boerne/Morrison?
 You don't have a positive action by the state that is discriminating
 Boerne/Morrison both condemn across the board legislation; here broad statute is used as a plus
How reconcilable w/ Boerne/Morrison? Very hard to reconcile
 Best way to understand tension b/t Boerne/Morrison & Hibbs may be that B/M gave SC opportunity
to assert authority. BUT by time of Hibbs that assertion of authority might be a dangerous strategy.
o Why? b/c a lot of § may go beyond (like Title VII, which prohibits preg discrim, something SC
says fine (Geduldig) & Title VII says disparate treatment = bad, whereas SC says fine (Davis &
Feeney). SO in Hibbs court conserving constitutional capital.

Does Hibbs offer a new reading of con law sex discrim?

 Previously just cares about explicitly sex-based rules (and Feeney said  facially neutral will only be
given IS if discrim impact + animus)
 BUT, left side of pg. 5: credence to disparate impact arguments. All of a sudden court is recognizing
that facially neutral laws w/ disparate impact ACTUALLY CAN impact women
 Hibbs seems much more aware that stereotypes about women & preg/caregiving can limit ALL
women's opportunities. We haven't seen that b/f.
Why the new approach? Rehnquist (not historically known as sex equality support, writes Roskter, Michael
M, Morrison)’s interactions w/ daughter, who was single mom in Bush admin.

Q H has: will Hibbs interpretation of § 5 impact reading of § 1? Feeney/ Geduldig still good law. BUT Hibbs
could be cited as steppingstone suggesting more expansive definition of discrim & facially neutral policies

65. Coleman v. Court of Appeals of Maryland (2012) (plurality opinion) (Kennedy)

FMLA, but SELF CARE. EE terminated after requesting. Interesting  self care is most common reason! Why?
b/c most ppl can't afford to take no-pay leave to take care of others, but if you yourself are sick, then you
need to stay home. EE canNOT sue to recover damages for FMLA SELF-CARE denial; C did not have authority
w/I §5 to abrogate state immunity for self-care.
 Really says no gender discrim in self-care policies (as opposed to family care). Evidence not there.
**More of a return to Boerne/Morrison approach.

Is Coleman consistent w/ Hibbs?

 Yes: in Hibbs C concluded wide-spread pattern of uncon pattern by states, and C responded; whereas
in self-leave, no pattern of uncon policies (no connection b/t self-care and equality issues)

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  No: In Hibbs very deferential to C, in Coleman you have court saying no uncon conduct by states &
they fundamentally don't think self-care related to discrim
o also, in prior case law it seems like discrim court found in Hibbs wouldn't actually be discrim

Rule now? Borne/Morrison pretty consistent. Hibbs throws in a wrench.

 Hibbs motivated by SC wanting to say it WON'T be striking down CRA & signal they are only going to
strike down marginal stuff. Interesting what they consider marginal though (ex: VAWA)

[one side Boerne/Coleman approach, the activities regulated by C is not a 14A violation as Ct understands it,
so C exceeds its § 5 power; the other side Hibbs approach suggest C can go after things that Ct wouldn’t
consider 14A violation]

INCORPORATION OF BILL OF RIGHTS AGAINST THE STATES

Incorporation is a form of substantive DP: “C shall make no law” applied to the states

Why did C invoke section 5 for Boerne (which was about 1A)? b/c court already determined that 1A included
w/I 14A. So, 14A includes first 8 As; all incorporated within LIBERTY framework.

66. District of Columbia v. Heller, 554 U.S. 570 (2008) (Scalia)

strike down gun law; reinterpret 2A: individual civilian right to bear arms
(ct takes for granted certain restrictions on 2A ok, but banning handguns at home particularly problematic)
Bans firearms in home, or disassembled/trigger *EVERYONE agrees that 2A lets ppl carry gun in connection
w/ militia. Basic dispute about 2A is if it protects individual CIVILIAN right to bear arms (outside militia)
Why pass this handgun control law? Why challenge handgun control law?
 DC violent, law reaction to that = public  Some ppl think if own gun, safer
safety  Don't have autonomy to protect myself w/
 leg thinks PROMOS autonomy & freedom gun. . . I don't have my individual decision
b/c ppl can walk around & feel safe to buy gun

Freedom & autonomy from whom? individuals .. BUT also from STATE. Both public & private

One way to understand Heller is that it was a victory for extrajudicial actors, social movements seeking to
change const.
 LEFT: Brown (NAACP +), women's rights movement, LGBTQ, etc. When movements at their apex
 RIGHT: Dobbs (anti-abortion movements). this example of R side influencing. hard to imagine court
rethinking 2A (b/c it had been decided, she didn't even touch 2A in law school), w/o NRA

Prefatory clause: “a well regulated militia being necessary to free state”

-------------THEN COURT DRAWING AN INVISIBLE SLASH--------------------
Operative clause: “right of ppl to keep and bear arms shall not be infringed”
 SC: read as if preface doesn't exist nor limit operative clause; that preface might be an example of 2A
violation but doesn’t limit
 Founders are concerned about (male) civilians right to bear arms to resist government interference

Support for SC's division b/t prefatory/operative? Against?

 Just 1 example among many of how can  Why would they have included this
violate operative clause, but doesn't limit preface? We have a presumption that
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  second clause is what makes it a sentence. words are not wasted; there's a reason it's
Can be a sentence by itself (whereas there. Why would they put something in
prefatory can't be its own sentence) that had no operative effect?

Theme: one of guns purpose is to protect against gov tyranny (WHO is banning M-16s? The tyrannical gov!)
Other theme (in tension): court not excited about ppl rising up against gov (they are gov!)

LIMITS: If central purpose of 2A is to prevent gov tyranny against citizens, how does it make sense to read 2A
as prohibiting carrying of firearms into gov buildings? Or prohibition of m-16 rifles?
 gov buildings is where gov tyranny is happening!
o the actual effectuation of tyranny is outside buildings. H says "okay" but what about M16
ban? You can have all the handguns you want but they will roll over you with bombers.
how does court KNOW these restrictions are in place? Why might gun laws/restrictions passed b/f Heller not
be a good guide for 2A?
o Seems to be a matter of “common sense.” Court said "long established", BUT long established when
court thought there wasn't individual civilian right. Now 2A read it different
o maybe it is court just saying this to public to reassure them.
Punchline: individual right to bear arms, BUT many of these individual restrictions (felon, gov building, mental
illness) don't violate it. BUT court doesn't say where line is drawn besides those “clear” examples.

When does historical change matter? 2A allows you to upgrade your handguns to the latest & greatest, BUT
not 18th century handgun to today’s assault rifle. b/c opinion doesn't restrict you to stuff at founding (so you
can have modern era handguns too) . . . . didn’t really answer.

Why did Heller strike down the D.C. Law?

o Handguns popular ("normally dangerous weapon)
o Not just history, but also what ppl have chosen (if ppl's first gun was an M16, maybe that
would be fine). Another example of EXTRAJUDICIAL influence; handguns popular! Ppl like
them! Makes court think this is more of a violation.
o 2A doesn't have problem w/ banning "unusual" weapons
o Emphasize home! You are going to use guns for your own self-defense; protecting yourself and your
family (not explicit, but envisioning man protecting wife and family)
o Court sees threats as external, but statistically, threats of gun much more likely to be internal
(suicide, DV, accidents). Also, court not envisioning you shooting police as they come at you.

67. McDonald v. City of Chicago, 561 U.S. 742 (2010) (Alito)

Individual right to bear arms 2A incorporated into liberty & applied to states
Ps made 2 arguments:
1. 2A applies to states through P&I = no (doesn’t want to disrupt Slaughterhouse)
2. 14A incorporation argument = yes; 2A is fundamental, incorporates into states
o (NO incorporation discussion in Heller because that is a FEDERAL law)
o Issue: whether right to bear arms is fundamental to OUR american scheme of ordered liberty
 (-) 2A didn’t interp to be include civilians until Heller, not deeply rooted history
 (+) American vibrant gun culture; one reason C motivated to write 14A was C
opposed southern effort to disarm formerly enslaved ppl
1. Chicago gun law similar that it’s attempt to take away your right to defend
2. Diff: Chicago very diff than Alabama circa 1878; the south example is racially
removing guns, Chicago applies to everyone

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Selective incorporation is the official rule, but almost total incorporation is the reality
SC has never held 14A incorporates ALL of first 8a (that would be TOTAL). Instead, have used SELECTIVE
 The fundamental fairness 14A DPC protects corresponds w SOME of the guarantees in BoR
o Stuff incorporated is incorporated b/c important (and part of liberty), not b/c IN BoR per se
o key is to figure out what in BoR is essential to fundamental fairness, if yes  incorporated &
applied to states
 Court has repeatedly declared commitment to SELECTIVE but almost total incorporation is the reality
o Fn13; areas that haven't been incorporated is typically b/c there hadn't been a case (why not
3rd? b/c there are never any 3A cases)

68. New York State Rifle & Pistol Association, Inc. v. Bruen (2022) (Thomas)
Right to carry handgun for self defense OUTSIDE home. Test for 2A: 1. presumption in favor of 2A right
against handgun reg; 2. gov burden to show reg consistent w history and tradition of reg.
 Looking back at history and see how it would fare at original point, think Michael H, Dobbs,
Why does ct strike down NY licensing regime?
 No historical tradition of limiting public carrying of citizens to show a special need for handgun (ct
esp concerned the special need req gives state discretion)
+/- of this 2A approach: presumption then history
 (-) history and tradition not that clear to show
 (+) respects american tradition; not ct imposing normative view

e.g. a man lost right to carry gun b/c subjected to domestic violence protection
(+) long american tradition of taking guns away from dangerous ppl
(-) idea of domestic protection orders is product of modern W rights movement and doesn’t predate 20 th
century

[the debate is ultimately about how do we read history: broad or narrow. (Bowers/Lawrence;
Obergefell/Dobbs)]

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