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Course: Constitutional Law
School: unknown
Year: 2002
Professor: unknown
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Constitutional Law

  1. Equal Protection


“No state shall make or enforce any law which shall ... deny to any person within its jurisdiction equal protection of the laws.”


Three levels of review:

  • Strict scrutiny – The Court gives “strict scrutiny” to any statute that is based on a “suspect classification” or that impairs a “fundamental right” such as (1) race, (2) national origin, (3) alienage, (4) the right to vote, (5) the right to have access to the courts, and (6) the right to interstate travel. To survive scrutiny, a statute must be necessary to promote a compelling governmental interest.

  • Intermediate scrutiny – The Court gives “intermediate scrutiny” (less demanding that strict scrutiny) to “semi-suspect classes” such as (1) gender and (2) illegitimacy. To survive scrutiny, a statute must be substantially related to an important governmental objective.

  • Mere rationality – The default level of scrutiny is “mere rationality” and is applied to all classifications that are not a “suspect” or “semi-suspect” classification and do not impair a “fundamental right.” Almost all economic and tax classification is reviewed under this easy level of review. Under this standard of review, a classification will be upheld so long as it is conceivable that the classification bears a rational relationship to a legitimate governmental objective.

    1. Traditional Equal Protection

          1. Railway Express Agency, Inc. v. New York

Appeal from conviction for violation of a state advertising statute.

New York had a regulation which prohibited advertising on vehicles, but allowed advertising on business vehicles so long as the vehicles were engaged in their owner’s usual work and are not used mainly for advertising.

The Equal Protection Clause does not require that a statute eradicate all evils of the same type or none at all.

“One step at a time” – A statute that is under-inclusive is not necessarily invalid.

    1. Suspect Classes and Other Classifications

A class is considered a “suspect class” if it is usually politically powerless and frequently discriminated against.

      1. Race

        1. The Beginnings

          1. Strauder v. West Virginia

Appeal from murder conviction.

Stauder (D), a black man, was convicted of murder by a jury from which blacks were excluded.

A state may not prevent blacks from serving on juries.

Two themes which are significant in determining whether a group constitutes a suspect classification and whether legislation violates constitutional prohibitions: (1) whether the class is one that has historically been the victim of societal discrimination, and (2) whether the legislation in question tends to stigmatize that class in the eyes of society.

          1. Yick Wo v. Hopkins

Appeal from conviction of violating a city health and safety ordinance.

Only Chinese aliens were prosecuted under an ordinance requiring laundries to be constructed out of brick.

A valid law, neutral on its face, unevenly and discriminatorily administered violates the Equal Protection Clause of the Constitution.

          1. Plessy v. Ferguson

Appeal from criminal prosecution for violating a state railway accommodation-segregation law.

Plessy (D) was arrested for trying to sit in a railroad car which was designated “for whites only.”

Segregation of the races is reasonable if based upon the established custom, usage, and traditions of the people in the state.

Expressly overruled by Brown v. Board of Education

        1. The Brown Decisions

          1. Brown v. Board of Education

Black minors sought the Court’s aid in obtaining admission to the public schools of their community on a non-segregated basis.

Black children were denied admission to public schools attended by white children.

The “separate but equal” doctrine has no application in the field of education and the segregation of children in public schools based solely on their race violates the Equal Protection Clause.

Intangible as well as tangible factors must be considered when deciding if a statute discriminates. Therefore, separate is not equal.

          1. Bolling v. Sharpe

Constitutional challenge to school segregation in the District of Columbia (D).

The District of Columbia’s (D) school segregation policy was challenged by Bolling (P).

Separate school facilities are so fundamentally unfair and discriminatory as to violate the Due Process Clause of the Fifth Amendment.

When discrimination is so unfair as to offend the American ideal of fairness and justice then it violates the Due Process Clause of the Fifth Amendment.

Racial classifications are fundamentally suspect and must be scrutinized with the utmost care. These classifications will survive scrutiny if the classification is necessary to promote the most compelling governmental interest.

          1. Brown v. Board of Education

Decision to determine the manner in which relief from segregation in public schools is to be accorded.

In May 1954, the Court decided that racial discrimination in public education is unconstitutional. It requested further arguments on the question of relief.

The cases are remanded to the lower courts to enter orders consistent with equitable principles of flexibility and requiring the defendant to make a prompt and reasonable start toward full racial integration in public schools.

        1. Desegregation in the North, the De Facto/De Jure Distinction, and Problems of Purpose, Motive and Effect

          1. Keyes v. School District No. 1

Appeal from refusal to order desegregation.

Keys (P) filed suit seeking desegregation of all segregated schools in the School District (D), but the court ordered only the desegregation of the small segment directly affected by the conduct of the District (D).

Where school authorities practice purposeful de jure segregation by race in a significant part of a school system, a de jure showing of segregation in each segment of the system is not required for a court order to desegregate the entire system.

For purposes of the Fourteenth Amendment Equal Protection Clause there is no difference between de facto and de jure segregation.

          1. Washington v. Davis

Appeal from reversal of order sustaining validity of employment qualification test.

Washington (D) administered a written test of verbal skill, vocabulary, and reading comprehension to applicants for jobs on the Police Department, and since four times as many blacks failed the test than whites, Davis (P) brought suit alleging the invalidity of the test due to its discriminatory impact.

The administration of a race-neutral test on relevant criteria to employment applicants does not violate the Equal Protection Clause where the test results in the elimination of a disproportionate number of racial minorities as opposed to white.

Must be “because of” not merely “in spite of” -- A law or other official action is not unconstitutional solely because it has a racially disproportionate impact. There must be a racially discriminatory purpose behind the law if it is to be found invidiously discriminatory.

Race is a suspect class and classifications based on race are therefore ordinarily subject to strict scrutiny. However, strict scrutiny will only be applied where the court finds that there was a governmental intent to discriminate against the disfavored group. The mere fact that a law has a less favorable effect on a racial minority that it has on the majority is not sufficient to trigger strict scrutiny.

          1. Village of Arlington Heights v. Metropolitan Housing Development Corp.

Appeal from reversal of denial of rezoning application.

The Metropolitan Housing Development Corp. (P) sought to build townhouses for low income people in the village of Arlington Heights, Illinois (D).

Official action will not be held unconstitutional solely because it results in a racially disproportionate impact.

        1. Reverse Discrimination

          1. Regents of the University of California v. Bakke

Action under state and federal Equal Protection Clauses regarding affirmative action.

Bakke (P) challenged the constitutionality of the University of California at Davis’ (D) minority admissions policy to its medical school.

The Equal Protection Clause’s guarantees are equally applicable to both minorities and the white majority, and preference of one group over another solely because of race is facially invalid.

Affirmative Action (or reverse discrimination) based on race is subject to the same “strict” level of scrutiny as classical discrimination based on race. Take special notice of quotas -- virtually all racially-based quotas will be struck down even where the government is trying to eradicate the effects of past discrimination.

          1. Adarand Constructors, Inc. v. Pena

Action regarding minority set-asides by Congress.

Adarand (P) was a white-owned construction firm and had bid for a sub-contract to supply guardrails to a federal highway project in Colorado. Plaintiff’s bid was the lowest. But the general contractor took a bid from a minority-owned firm that qualified under federal regulations as a Disadvantaged Business Enterprise (DBE). The prime contractor was not required to award the sub-contract to a minority-owned DBE, but it received a financial incentive for doing so.

The Court in Adarand overruled Metro Broadcasting, and held that congressionally authorized race-conscious affirmative action programs must be subject to strict scrutiny.

      1. Alienage


Alienage, as used by the Court means, “not having U.S. Citizenship”

        1. State Power

          1. Ambach v. Norwick

Review of refusal to hire aliens as elementary and secondary schoolteachers.

The State of New York refused to employ aliens, though eligible for citizenship and otherwise qualified, as elementary and secondary public school teachers.

Teaching in a public school constitutes a governmental function from which a state may bar aliens without violating the Fourteenth Amendment.

Some state functions are so bound up with the operation of the state as a governmental entity as to permit the exclusion from those functions of all persons who have not become part of the process of self-government. Though alienage is a “suspect-classification,” the standard of review is usually reduced when a governmental function is involved – when the employee is “employed by and acting as the agents of the state.



Strict scrutiny is applied in alienage cases that involve (1) welfare benefits, (2) bar admissions, and (3) civil service jobs.

          1. Plyer v. Doe

Constitutional challenge to a state educational restriction statute.

A class action suit challenged a Texas law that prohibited the use of state funds to educate the children of undocumented aliens.

Absent a showing that such a policy furthers a substantial state interest, a state may not deny a public education to the children of undocumented aliens.

Undocumented aliens are not a “suspect class” and an education is not a fundamental right therefore this case would normally receive review under mere rationality. In this case, however, the Court was hesitant to punish the children for the sins of their parents so this case was scrutinized at a level closer to intermediate scrutiny.

        1. Federal Power

          1. Mathews v. Diaz

Appeal from judgment striking down residency requirement.

Only aliens who were residents of the United States for five years or more are who were admitted for permanent residency were eligible for a federal medical insurance program, and the district court found the residency requirement unconstitutional.

Statutory discrimination within the class of aliens by the federal government is not unconstitutional if it is reasonably related to a legitimate governmental interest in proving medical benefits to those residing within its jurisdiction the longest and admitted for permanent residency.

When the Federal government discriminates within the class of aliens it is acting under the constitutional power to control immigration and naturalization; the states may not act on this power granted solely to the federal government. All that is necessary for the statute to survive is a rational relationship to a legitimate governmental interest.

      1. Illegitimacy

Illegitimacy receives intermediate scrutiny

          1. Lalli v. Lalli

Appeal from judgment upholding New York paternity requirement.

Though Lalli (P) was acknowledged repeatedly by Mario Lalli (D) as his illegitimate son, both orally and in documents, Lalli (P) was not permitted to inherit from Mario Lalli (D) as entitled by state intestate succession laws because he failed to produce a statutorily required court order of filiation declaring paternity in a proceeding instituted during pregnancy or within two years of the birth of the child.

An illegitimate child otherwise entitled under state intestate succession laws to inherit is not denied equal protection if he is not permitted to inherit for failure to provide a particular form of proof of paternity.

Classifications based on illegitimacy must advance permissible governmental purposes and cannot be burdens placed on the illegitimate because of his status as such.


A statute that places a burden on a bastard that he himself may be able to surmount is likely to survive scrutiny.

      1. Sex

        1. Introduction

          1. Frontiero v. Richardson

Suit challenging the constitutionality of a statute.

A statute provides that servicemen’s wives are automatically eligible for benefits as dependents while servicewomen must demonstrate that their husbands are dependent on them before they are eligible for the benefits.

By according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the statutes violate the Due Process Clause of the Fifth Amendment by being discriminatorily unconstitutional.

A statute that classifies based on gender must be substantially related to important governmental objectives (intermediate scrutiny).

          1. Craig v. Boren

Appeal from an action to have an Oklahoma statute declared unconstitutional.

Craig (P) appealed after a federal district court upheld two sections of an Oklahoma statute prohibiting the sale of “non-intoxicating” 3.2% beer to males under the age of 21 and to females under the age of 18 on the ground that such a gender based differential did not constitute a denial to males 18-20 years of age equal protection of the laws.

Laws that establish classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives to be constitutionally in line with the Equal Protection Clause.

        1. The De Facto/De Jure Distinction

          1. Personnel Administrator of Massachusetts v. Feeney

Appeal from judgment striking down veterans’ job preference.

Massachusetts (D) enacted a statute granting veterans a preference in civil service employment consideration over non-veterans, and Feeney (P) filed this suit alleging a violation of the Fourteenth Amendment Equal Protection Clause because the law operated to the advantage of males.

A statute giving preference in civil service job consideration to a group comprised primarily of males does not violate the Equal Protection Clause without a showing of a purpose to discriminate on the basis of sex.

Discriminatory intent is required to consider a statute unconstitutional, not mere awareness of a discriminatory consequence.

        1. Reverse Discrimination

          1. Mississippi university for Women v. Hogan

Appeal from decision that an admissions program violated Equal Protection Clause.

The State (D) appealed from a decision finding that the admissions program of one of its nursing schools, which denied admission to males solely on the basis of their sex, violated the Equal Protection Clause of the Fourteenth Amendment.

A state can evoke a compensatory purpose to justify and otherwise gender based discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification.

In order for gender based discriminations to pass scrutiny under the Equal Protection Clause of the Fourteenth Amendment, the state’s objective must first (1) be determined to be important and legitimate. Secondly (2) it must be determined whether the requisite direct, substantial relationship between the objective and the means is present. Gender based reverse discrimination (affirmative action) is subject to intermediate scrutiny.

      1. Wealth and Age

          1. Dandridge v. Williams

Constitutional challenge to state welfare law.

Williams (P) and other welfare recipients challenged the maximum payment portions of Maryland’s welfare programs.

In fields of economic and social legislation not involving fundamental rights, a statute will survive and equal protection challenge if supported by legitimate state interests.

When a fundamental right is not involved, the statute will be upheld if there is a legitimate state interest or concern – mere rationality.

          1. San Antonio Independent School District v. Rodriguez

Appeal from finding of unconstitutionality of dual public school financing system.

Rodriguez (P), who resided in Edgewood district of the San Antonio Independent School District (SAISD) (D) where the highest school tax was paid and $356 per year per student was allocated, filed this suit alleging denial of equal protection since the Alamo Heights district of SAISD was taxed at a lower rate but produced enough revenue to permit the allocation of $594 per year per student there.

The allocation of educational funds per year per pupil in a school district according to the amount produced by taxation in that district does not violate the equal protection rights of residents of other districts in the area paying a higher rate of tax which produces less revenue resulting in a lower per pupil allocation.

Allocation of educational funds per year per pupil in a school district according to the amount produced by taxation in that district does not violate the equal protection rights of residents of other districts in the area. The court applied the mere rational test because education is not a fundamental right and property owners with a high tax rate are not a suspect class.

    1. Fundamental Rights

Fundamental Rights are (1) rights that are independently and explicitly guaranteed by some other constitutional provision (ex. speech, religion), and (2) rights that are felt to be important and implicitly granted by the constitution.



Two-tiered standard of Equal Protection
Strict Scrutiny
Mere Rationality
Fundamental Right
Area of non-fundamental
rights causing problem analysis
Economic Interests


      1. Access to the Courts

          1. Griffin v. Illinois

Constitutional challenge to state law.

Illinois (D) denied a free stenographic transcript to indigents for their initial appeal of criminal convictions.

Once appellate rights are offered, discrimination on the basis of wealth violates equal protection.

          1. Douglas v. California

Appeal from criminal conviction.

After his conviction, Douglas (D) was denied appointed counsel for assistance in pursuing his right of first appeal. The denial came after the appellate court had reviewed the transcript of his trial and, pursuant to state law, had determined that counsel would not be of help to the defendant.

An indigent is entitled to appointed counsel to prepare an appellate brief where the appeal pursued is granted as a matter of right to all defendants

      1. Voting

        1. Apportionment

          1. Reynolds v. Sims

Appeal from a judgment finding a state’s apportionment plan and two proposed plans invalid.

The current Alabama (D) apportionment plan was deemed invalid since it had not been reapportioned in nearly 60 years.

The Equal Protection Clause requires apportionment by actual population for both houses of a state bicameral legislature.

Suffrage is a fundamental right. Dilution of voting power impairs the right to suffrage because as much as a person’s right to vote is diluted, so is his citizenship.

        1. Poll Taxes

          1. Harper v. Virginia State Board of Elections

Suites challenging the constitutionality of Virginia’s poll tax.

Harper (P) and other Virginia residents brought this suit to have Virginia’s (D) poll tax declared unconstitutional.

The right to vote is a fundamental and basic right and where such rights are asserted under the Equal protection clause, classifications that might restrain those rights must be closely scrutinized and carefully confined. Lines drawn on the basis of wealth or property, like those of race, are traditionally disfavored.

The affluence of the voter is an unconstitutional electoral standard.

        1. Property Qualifications

          1. Hill v. Stone

Appeal from invalidation of state voting procedures.

Stone (P) claimed that Texas’ dual box election procedure denied him equal protection of the laws.

In an election of general interest, restrictions on the franchise other than residence, age and citizenship must promote a compelling state interest in order to be valid.

        1. Access to the Ballot

          1. Illinois State Board of Elections v. Socialist Workers Party

Appeal in action to invalidate Illinois Election Code.

The Socialist Workers Party (P) challenged the constitutionality of portions of the Illinois Election Code dealing with qualification of new political parties.

Restrictions on access to the ballot must be justified by a compelling state interest.

Restrictions on access to the ballot burden two fundamental rights: (1) the freedom to associate as a political party, and (2) the right to vote.

      1. Travel

        1. Interstate Travel

          1. Shapiro v. Thompson

Appeal from decisions holding residency requirements for welfare applicants unconstitutional.

Statutory provisions deny welfare assistance to residents who have not resided within their jurisdiction for at least one year.

Any classification that serves to penalize the exercise of a constitutional right is unconstitutional unless it is shown to be necessary to promote a compelling governmental interest, rather than merely be shown to rationally related to a legitimate purpose.

The right to travel from state to state is protected by the Constitution from laws or regulations that would unreasonably burden such movement.

If a law has no other purpose than to chill the assertion of a constitutional right by penalizing those who choose to exercise them, it is patently unconstitutional.


Any classification penalizes the exercise of a constitutional right is unconstitutional unless it is shown to be necessary to promote a compelling governmental interest.

          1. Zobel v. Williams

Appeal from decision upholding state statutory income distribution plan.

The Zobel’s (P) challenged an Alaska scheme which distributed surplus income to its citizens depending on the length of residency.

A state may not base the amount of surplus income to be distributed to its citizens on the length of time the citizens has resided in the state.

        1. Foreign Travel

          1. Haig v. Agee

Review of order of restoration of passport.

The President, through the Secretary of State, Haig (D), revoked the passport of Phillip Agee (P), an ex-CIA officer who had engaged in activities abroad regarded as damaging to the national security.

The President and the Secretary of State my revoke a passport where the holder’s activities are causing or a likely to cause damage to national security.

A passport is a “letter of introduction for the holder,” granted by the government, and is subject to reasonable governmental regulation.

      1. Privacy and Sexual Autonomy

        1. Sterilization

          1. Skinner v. Oklahoma Ex Rel. Williamson

Constitutional challenge to state law.

Skinner (D) was deemed to be a habitual criminal and was ordered sterilized under a State (P) statute.

A statute that arbitrarily excludes a class from its purview violates the Equal Protection Clause of the Fourteenth Amendment where fundamental rights are involved.

The Right to have children is a fundamental right.


The Right to Privacy

The penumbra right to privacy is created by the First Amendment’s right of association, the Third Amendment’s prohibition against the peacetime quartering of soldiers, the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Fifth Amendment’s self-incrimination clause, and the Ninth Amendment’s reservation to the people of unenumerated rights.

        1. Contraception

          1. Griswold v. Connecticut

Appeal from conviction for violating state laws prohibiting the counseling of married persons to take contraceptives.

Doctor (D) and layman (D) were prosecuted for advising married persons on the means of preventing contraception.

The right to mental privacy, although not explicitly stated in the Bill of Rights, is a penumbra, formed by certain other explicit guarantees. As such, it is protected against state regulation that sweeps unnecessarily broad.

While not constituting an independent source of rights, the Ninth Amendment suggests that the list of rights in the first eight amendments is not exhaustive.

        1. Abortion

          1. Roe v. Wade

Challenge to state laws making it a crime to procure an abortion except by medical advice to save the life of the mother.

Roe (P), a single woman, wished to have her pregnancy terminated by an abortion.

The right of privacy found in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

The decision in Roe created a balancing test that compared the mother’s right to privacy with the fetuses right to life. As the fetus approaches viability, its rights become significant enough to be afforded state protection except where it is medically necessary to protect the mother.

          1. Planned Parenthood of Southeastern Pennsylvania v. Casey

Appeal from denial of injunction against enforcement of a state abortion statue.

Planned Parenthood (P) sought declaratory and injunctive relief from enforcement of Pennsylvania’s statute regulating abortion, contending that its many restrictions were unconstitutional under the Supreme Court’s decision in Roe v. Wade.

Only where state regulation imposes an undue burden on a woman’s ability to terminate a pregnancy does the power of the state reach into the heart of the liberty protected by the Due Process Clause.

A finding of an undue burden is shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.

        1. Homosexuality

          1. Bowers v. Hardwick

Appeal from decision finding state sodomy statute unconstitutional.

Bowers (D) and other state officials appealed from a court of appeals decision finding the Georgia sodomy statute unconstitutional in that it violated Hardwick’s (P) fundamental rights, since it applied to consensual homosexual sodomy.

The Constitution does not grant a fundamental right to engage in consensual homosexual sodomy.

Fundamental liberties identified by this Court, and deserving of heightened judicial scrutiny, have either been liberties implicit in the concept of ordered liberty or liberties deeply rooted in this nation’s history and traditions.

          1. Romer v. Evans

A case in which the Court struck down a Colorado constitutional amendment that would have prevented the state or any of its cities from giving certain protections to gays or lesbians.

The Colorado provision, known as “Amendment 2,” modified the Colorado constitution to provide that neither the state nor any subdivision shall “enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

A State cannot so deem a class of persons a stranger to its laws.

      1. A Right to Die?

          1. Cruzan v. Director, Missouri Department of Health

Appeal from reversal of order allowing cessation of death-delaying medical procedures.

After Nancy Beth Cruzan (P) suffered severe injuries in an automobile accident that left her in a persistent vegetative state, her parents sought the withdrawal of her nutrition and hydration.

A guardian may seek to withdraw the nutrition and hydration of an individual diagnosed in a persistent vegetative state if there is clear and convincing evidence of the individual’s previously expressed desire for such withdrawal.


A person in Cruzan’s condition has a fundamental right to refuse or direct the withdrawal of death delaying procedures.

  1. Congressional Enforcement of Civil Rights

    1. The Fourteenth Amendment

          1. Katzenbach v. Morgan

Challenge to constitutionality of federal statute.

As part of the Voting Rights Act, Congress inserted a provision that prohibited restrictions on the right to register to vote and the applicant’s inability to read and write English where the applicant had at least a sixth-grade education in an Puerto Rican school where instruction was primarily in Spanish. New York had a statutory requirement of an ability to read and write English as a prerequisite to voter registration.

A federal statute enacted pursuant to the enabling clause of the Fourteenth Amendment supersedes any state constitutional or statutory provision that is in conflict with the federal law.

    1. The Thirteenth Amendment

          1. Jones v. Alfred H. Mayer Co.

Action for injunctive and other relief to deal with refusal of property owners to sell to Negroes.

Jones (P) brought suit in federal district court against the Alfred H. Mayer Co. (D) alleging that Mayer (D) refused to sell a home to him for the sole reason that Jones (P) is a Negro

Congress, pursuant to the authority vested in it by the Thirteenth Amendment, which clothes “Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery, may validly bar all racial discrimination, private as well as public, in the sale or rental of property.

          1. Runyon v. McCrary

Action under 42 U.S.C. § 1981

McCrary (P) and others were denied admission to certain private schools because of their race.

The power given to Congress by the Thirteenth Amendment to legislate against the “badges and incidents” of slavery justifies the 42 U.S.C. § 1981 prohibition against racial discrimination in the making and enforcement of private contracts; and, § 1981, in turn, prohibits “private, commercially operated nonsectarian schools from denying admission to prospective students because they are Negroes.

    1. The Fifteenth Amendment

          1. South Carolina v. Katzenbach

Constitutional challenge to Voting Rights act of 1965

South Carolia (P) and other states (P) challenged the validity of the Voting Rights Act of 1965.

Congress may, under the Fifteenth Amendment, prescribe appropriate voter registration and election procedures.

          1. Miller v. Johnson

A case making it clear that a bizarre shape is not a requirement for a racial gerrymander claim and all that the plaintiff must prove is that race was a predominant factor in the drawing of the district lines.

Because Georgia had previously been found to discriminate against African Americans in voting, it was subject to the “pre-clearance” provisions of the federal Voting Rights Act. Under these provisions, any redistricting plan had to be pre-approved by the Justice Department. The Justice Department took the position that any redistricting plan must create at least three majority black districts. After initially resisting, the Georgia legislature eventually came up with a plan that included three such districts, including the district at issue. In the litigation, the state essentially conceded that the drawing of the lines for the district was done mostly for racial reasons, because of the need to produce three majority black districts to satisfy the Justice Department.

The fact that the district was relatively compact, and no more irregular or bizarre in its shape that many districts was not enough to save it, given the race conscious motives with which it was drawn.

  1. Freedom of Speech

    1. Advocacy of Illegal Conduct

          1. Schenck v. United States

Appeal from conviction for conspiracy to violate the Espionage Act, conspiracy to use the mails for transmission of non-mailable material, and unlawful use of the mails.

During a time of war, Schenck (D) mailed circulars to draftees which were calculated to cause insubordination in the armed services and to obstruct the U.S. recruiting and enlistment program in violation of military laws.

The test to determine the constitutionality of a statute restricting free speech is whether, under the circumstances, the speech is of such a nature as to create a clear and present danger that it will bring about the substantive evils which Congress has a right to prevent.

The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

The most stringent protection of free speech would not protect a person’s falsely shouting fire in a theatre and causing a panic.

          1. Abrams v. United states

Appeal from a criminal conspiracy conviction.

Abrams (D) and others passed out leaflets condemning U.S. efforts “to crush” the Russian revolution.

Only speech that is intended to produce a “clear and present danger” may be punished.

          1. Gitlow v. New York

Appeal from conviction for criminal anarchy.

Gitlow (D) published a radical manifesto encouraging workers to strike and to use militant means to overthrow the government and was convicted therefore under a “criminal anarchy statute” enacted in New York (P).

A state may prohibit speech likely to cause a danger of substantive evil.

The legislature may determine, by statute, that a particular type of speech is likely to cause a danger of substantive evil. As long as the statute is constitutional, it will be upheld.

          1. Whitney v. California

Appeal from conviction for violation of criminal syndicalism act.

Miss Whitney (D), organizer and member of the Communist Labor Party of California, was convicted of aiding in the organization’s violation of the Criminal Syndicalism Act.

In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

No danger flowing from speech can be deemed clear and present unless the threatened evil is so imminent that it may strike before opportunity for discussion on it – must be an imminent clear and present danger.

          1. Brandenburg v. Ohio

Appeal from conviction for violation of the Ohio criminal syndicalism statute.

Brandenburg (D) was convicted under a state statute which proscribes advocacy of the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing reform.

The constitutional guarantees of freedom of speech and freedom of press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce or incite such action.

The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

          1. Hess v. Indiana

Appeal from conviction for disorderly conduct.

Hell (D) was convicted of disorderly conduct after uttering an exhortation to “take” a street that police were clearing during a demonstration. Hess (D) said, “We’ll take the fucking street later [or again].”

The Court found this to be protected speech, rather than an unprotected incitement to illegal action. Construed least favorably to the defendant, the statement was “nothing more than advocacy of illegal action at “some indefinite future time.” Only words intended to produce and likely to produce imminent disorder can be punished.

    1. Prior Restraint

          1. New York Times Co. v. United States

Action by federal government to restrain newspaper publication.

Government (P) sought to enjoin, in the interest of “national security,” the Times (D) and the Post (D) from further publishing of portions of the “Pentagon Papers,” a classified, “top secret” study.

Any system of prior restraints on the freedom of press bears a heavy presumption against its constitutional validity.

          1. Snepp v. United States

Appeal from denial of constructive trust in breach of contract case.

Snepp (D) published a book based on his experience as a CIA agent, despite his promise not to divulge classified information or to publish only information without prepublication clearance.

If a government agent publishes unreviewed material in violation of his contractual and fiduciary obligation, a constructive trust will be imposed, requiring him to disgorge the benefits of his breach of duty.

    1. Time, Place, and Manner Restrictions and the Public Forum

      1. The Procedural Context

          1. Walker v. City of Birmingham

Appeal from criminal contempt conviction.

Eight black ministers (D) ignored a court order enjoining them from parading or congregating without a permit.

One who disobeys and injunction, without first seeking orderly judicial review of the order, will be found in contempt of court.

Thought one is free to violate an unconstitutionally vague statute restricting free speech, one cannot freely violate the same words when written up as a court injunction.

          1. Shuttlesworth v. City of Birmingham

Appeal from conviction of violating a statutory prohibition against marching in a parade without a permit.

A Birmingham ordinance made it a misdemeanor to participate in a parade demonstration, or procession without a permit.

In determining whether a “narrowing construction” of a statute will allow a conviction to “pass constitutional muster,” it is relevant to determine whether the statute was applied within the ambits of the limiting construction.

Although a parade is not pure speech, it is a manner of expressing speech/ideas and is protected under the First and Fourteenth Amendments. Officials, therefore, cannot be given unfettered freedom to grant or deny permits for this type of protected activity. They may only regulate time, place and manner.


      1. Protection of the Public From Fraud and Annoyance

          1. Secretary of State of Maryland v. Joseph H. Munson, Inc.

Appeal from the invalidation of a state statute.

Munson (P) contended that a Maryland (D) statute which prohibited the solicitation of charitable contributions by an organization which did not use 75% of its receipts for charitable purposes violated freedom of speech.

A percentage limitation on funds expended in solicitation for charitable purposes is a violation of freedom of speech.

      1. Defining the Public Forum

          1. Perry Education Association v. Perry Local Educators’ Association

Appeal from a constitutional challenge to a preferential access system.

The collective bargaining agreement which the Board of Education signed with PEA (D), the duly elected bargaining representative of the teachers in the school district provided that no other union, such as PLEA (P), would have access to the inter-school mail system and the teacher mail boxes.

Implicit in the concept of a nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity that are reasonable in light of the purpose which the forum at issue serves.

A state may reserve a nonpublic forum for its intended purposes, communicative or otherwise, so long as the regulation on speech is reasonable and not an effort to suppress expression merely because the state opposes the speaker’s view.

          1. International Society for Krishna Consciousness, Inc. v. Lee

Appeal from partial reversal of award of injunction against charitable solicitation.

Krishna (P) sought declaratory and injunctive relief after the Port Authority (D) adopted a regulation forbidding repetitive solicitation of money or distribution of literature within three airport terminals.

An airport terminal operated by a public authority is not a public forum, and thus, a regulation prohibiting solicitation in the interior of an airport terminal does not violate the First Amendment.

A traditional public forum is property that has as a principal purpose the free exchange of ideas.

      1. Government Subsidization of Speech

          1. Rust v. Sullivan

Review of denial of challenge to federal regulation.

Certain federal regulations prohibited clinics receiving federal funding from providing abortion counseling or referrals.

The government may constitutionally prohibit clinics receiving federal funding from providing abortion counseling or referrals.

The government may use sticks and carrots to control speech.

      1. Injunctions and the Public Forum

          1. Madsen v. Women’s Health Center, Inc.

An injunction that serves as a restriction on “time, place and manner,” will be subjected to slightly more stringent review than would a generally applicable statute containing the same substance.

Madsen (P) involved anti-abortion activists who waged an intense campaign of protests around a particular Florida abortion clinic. A local judge granted an initial injunction prohibiting the protesters from blocking or interfering with public access to the clinic and from physically abusing people entering or leaving it. After this injunction did not seem to work, the judge issued a broader injunction. It was this second injunction that came before the Supreme Court.

An injunction is subject to a more stringent appellate review than a generally applicable statute or regulation because an injunction carries a greater risk of censorship and discriminatory application than do general ordinances.

    1. Fighting Words and Hostile Audiences

          1. Cohen v. California

Criminal prosecution for violation of disturbing the peace statute.

Cohen (D) wore a jacket with the words “Fuck the Draft” on it in a courthouse corridor and was arrested and convicted under a disturbing the peach statute.

A state cannot bar the use of offensive words either because such words are inherently likely to cause a violent reaction or because the state wishes to eliminate such words to protect the public morality.

Cohen’s (D) speech does not come within any of the exceptions to the general rule that the form and content of speech cannot be regulated: (1) this is not a prohibition designed to protect courthouse decorum because the statute is not so limited; (2) this is not an obscenity case because the words were not erotic; (3) this is not a case of fighting words which are punishable as inherently likely to provoke a violent reaction because here the words were not directed as a personal insult to any person; and (4) this is not a captive audience problem since a viewer could merely avert his eyes.

          1. R.A.V. v. City of St. Paul

Appeal from reversal of dismissal of “hate crime” prosecution.

When R.A.V. (D) was charged with allegedly burning a cross inside the fenced yard of a black family, the City of St. Paul (P) charged R.A.V. (D) under the Bias-Motivated Crime Ordinance.

Where content discrimination in an ordinance is not reasonably necessary to achieve a city’s compelling interests, the ordinance cannot survive First Amendment scrutiny.

Obscenity, defamation, and fighting words can be regulated because of their constitutionally proscribeable content but these categories cannot be regulated in a content-based manner.

          1. Wisconsin v. Mitchel

Statutes considered “penalty enhancements” for hate-crimes are valid.

Mitchel (D), a black teenager, was convicted of aggravated battery, a crime that ordinarily caries a maximum sentence of two years in prison. However, there was strong evidence that Mitchel (D) had selected his victim based on race. Under Wisconsin (P) law, the maximum sentence was increased to seven years because of Mitchel’s (D) race-based selection of a victim.

A statute aimed at conduct not speech is valid.

    1. Special Problems of the Broadcast Media

          1. Miami Herald Pub. Co. v. Tornillo

“Right of reply” statute.

The Miami Herald Publishing Co. (D) appealed from a decision validating a statute that required newspapers to give political candidates equal space to reply to criticisms and attacks in the press.

Newspapers cannot be compelled by statute to publish “replies” to editorial opinions with which certain persons (including the subject of the editorial) may disagree.

The statute would have resulted in self-censorship by the press in an effort to avoid printing political replies. This would constructively affect the newspaper’s freedom of speech.

          1. Federal Communications Commission v. League of Women Voters

Appeal from judgment holding a ban on television editorializing unconstitutional.

The League of Women Voters (League) (P) contended that the Public Broadcasting Amendments Act of 1981, which prohibited public broadcasting stations from editorializing, was a violation of the First Amendment right to freedom of speech.

Restrictions on broadcasters are constitutionally valid only if they are narrowly tailored to further a substantial interest.

The Court recognized and reiterated the fact that restrictions on broadcasters differ from those on other forms of media because of the finite number of channels available for use.

    1. The Press and the Criminal Justice System

      1. Protection of confidential Sources

          1. Branzburg v. Hayes

Appeal from contempt citations for failure to testify before state and federal grand juries.

Newsmen refused to testify before state and federal grand juries, claiming that their news sources were confidential.

The First Amendment’s freedom of press does not exempt a reporter from disclosing to a grand jury information that he has received in confidence.

Newsmen cannot invoke a testimonial privilege not enjoyed by other citizens.

          1. Zurcher v. Stanford Daily

Appeal from affirmation of grant of declaratory relief.

Stanford (P) published pictures of an altercation between police and students, and the police, pursuant to a warrant, entered and searched Stanford’s (P) offices for any photographs of the event, after which Stanford (P) filed this civil action.

A search of a newspaper’s premises for evidence of a crime pursuant to a warrant issued by a neutral magistrate does not violate the newspaper’s First Amendment right to freedom of speech.

The Privacy Protection Act of 1980 limits search and seizure of materials intended for dissemination unless necessary to prevent crime and/or protect the national security.

      1. Fair Trial and Free Press

          1. Nebraska Press Association v. Stuart

Appeal from order of prior restraint of publication.

After the district court ordered Nebraska (P) to refrain from publishing or broadcasting accounts of any confessions or admissions made by a criminal defendant accused of six murders, Nebraska (P) filed suit seeking to avoid the order as an unconstitutional prior restrain on the freedom of speech.

A prior restraint of pretrial publication of accounts of a crime violates the First Amendment protection of free speech when used as a means of attempting to protect the criminal defendant’s right to a fair trial.

There is no priority assigned to one constitutional amendment as opposed to another; that is to say the right of an accused is not subordinate to the right to publish in all circumstances. The trial court, therefore, should consider whether the gravity of the evil (the risk of an unfair trial), discounted by its improbability, justifies the invasion of free speech as is necessary to avoid the danger.


A court may issue a gag order upon attorneys, police, witnesses and parties.

          1. Richmond Newspapers, Inc. v. Virginia

Appeal of order denying news media access to courtroom to observe a trial.

Richmond (P) was denied access to the courtroom in which a trial was to be held of a criminal defendant who requested the closure on the ground that the media’s attendance would impair his right to a fair trial.

The public and the news media have a First Amendment right to attend criminal trials over the objection of criminal defendants that attendance will impair the fairness of the trial unless overriding threats to fairness are articulated in findings.

A judge has the power to prevent both the media and the public from turning the trial into a circus which unfairly deprives the defendant of his right to defend himself.


          1. Chandler v. Florida

Review of criminal conviction at trial televised over objection of defense.

Chandler (D) and other Miami police officers were charged with conspiracy, burglary, and larceny and unsuccessfully moved to prevent electronic media coverage of the trial in which they were convicted.

The televising of criminal trials over defense objection is not a denial of due process.

    1. Commercial Speech

          1. Central Hudson Gas & Electric Corp., v. Public Service Commission

Review of order prohibiting utility advertising.

The Commission (D) ordered Central (P) to cease all advertising encouraging the use of electricity because of a national policy of conserving energy.

An order prohibiting non-misleading commercial speech concerning lawful activity violates the First amendment when such order will not reasonably serve a substantial governmental interest.

Four-part test to determine whether a given regulation of commercial speech violates the First Amendment: (1) Is the speech misleading or does it concern an unlawful activity; (2) is there a substantial governmental interest asserted in support of the regulation; (3) does the regulation directly advance the governmental interest; and (4) is the regulation reasonably tailored to serve the governmental objective (not more extensive than is necessary).

          1. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico

Appeal from dismissal of First Amendment action.

Puerto Rico (D) enacted a statute banning casino advertising calculated to reach native Puerto Ricans.

A statute banning the advertising of casino gambling to natives of a jurisdiction is constitutional because it directly furthers a substantial governmental interest.

          1. Florida Bar v. Went for It, Inc.

Case upholding a 30-day cooling off period for tort victims.

“Went for It” targeted tort victims with direct mail solicitation.

The free speech rights of tort lawyers were being restricted, but these rights were outweighed by two countervailing state interests: (1) the interest of victims or their relatives in being spared a personalized sales pitch while wounds are still open; and (2) the interest of the bar in forestalling the public outrage over this kind of conduct.

    1. Defamation and Privacy

      1. Defamation

          1. New York Times Co. v. Sullivan

          2. Gertz v. Robert Welch, Inc.

          3. Dun & Bradstreet, Inc., v. Greenmoss Builders, Inc.

      2. Privacy

          1. Cox Broadcasting Corp v. Cohn

          2. Zacchini v. Scripps-Howard Broadcasting Co.

    2. The Right of Association

      1. Inquiries into Associations

          1. National Association for the Advancement of Colored People v. Alabama Ex Rel. Patterson

      2. Loyalty Oaths

          1. Cole v. Richardson

      3. Patronage Dismissals

          1. Branti v. Finkel

      4. Regulating the Membership of Associations

          1. Roberts v. United States Jaycees

          2. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston

    3. Symbolic Speech

          1. United States v. O’Brien

          2. Tinker v. Des Moines Independent Community School District

          3. Texas v. Johnson

          4. United States v. Eichman

    4. Campaign Financing

          1. Buckley v. Valeo

          2. Austin v. Michigan Chamber of Commerce

  1. Religion

    1. Financial Assistance to Religion

      1. Tax Exemption to Churches

          1. Walz v. Tax Commission of City of New York

Appeal from denial of injunction against a tax exemption.

Walz (P) sought to enjoin the New York City Tax commission (D) from granting property tax exemptions to religious organizations.

A state law granting property tax exemptions to religious organizations does not violate the Establishment Clause as long as it neither advances nor inhibits religion and does not involve excessive government entanglement.

      1. Elementary and Secondary Schools

          1. Zorach v. Clauson

A taxpayer’s suit challenging the constitutionality of a state statute.

A religious released time program allows public schools to release students during the school day to attend religious classes.

A religious released time program, which permits public school students to leave school to attend religious instruction and for which the schools do no more than accommodate their schedules, does not violate the First Amendment.

“The First Amendment does not say that in every and all respects there must be a separation of church and state. If it did, religion and state would be hostile to one another. Municipalities would not be allowed to render police or fire protection to religious institutions, and prayers in public meetings would have to be banned. This would not be in keeping with our heritage as a religious people.”

          1. Committee for Public Education and Religious Liberty v. Regan

Appeal from decision upholding reimbursement scheme.

The Committee for Public Education and Religious Liberty (Committee) (P) appealed a decision upholding a New York (State) (D) statute which reimbursed church-supported and secular nonpublic schools for performing various testing and reporting services mandated by state law against the Committee’s (P) Establishment Clause challenge.

A state statute that reimburses a church-supported school for state mandated testing and reporting services does not violate the Establishment Clause of the Constitution sol long as the reimbursement has primarily secular purpose and effect, and has no excessive entanglement with religion.

          1. Mueller v. Allen

Action challenging the constitutionality of a state tax deduction law.

Mueller (P) instituted suit challenging the constitutionality of a Minnesota law allowing taxpayers, in computing their state income tax, to deduct certain expenses incurred in providing for their children’s education, whether or not the children attended public schools or private parochial schools.

The three-prong test for determining if a program aiding parochial schools violates the Establishment Clause is as follows: (1) does it have a secular purpose; (2) does it have “the primary effect of advancing the sectarian aims of the nonpublic schools”; and (3) does it “excessively entangle” the state religion?

      1. Higher Education

          1. Roemer v. Board of Public Works of Maryland

Action for injunction.

The State of Maryland enacted a statue providing for the awarding of non-categorical grants in aid to religiously affiliated institutions.

“Religious institutions need not be quarantined from public benefits that are neutrally available to all” and, as such, non-categorical grants in aid to religiously affiliated colleges do not offend the First Amendment as long as they have “a secular purpose, a primary effect other than the advancement of religion, and no tendency to entangle the state excessively in church affairs.”

    1. Non-financial Assistance to Religion

      1. Prayers, Symbols and Curriculum

          1. School District of Abington Township v. Schempp

Suit to obtain injunctive relief – action seeking the issuance of a writ of mandamus.

Both Schempp (P) and Murray (P) challenged provisions which mandated the reading of Bible verses at the beginning of each day of public school.

A statute or rule that has as its purpose or primary effect either the advancement or the inhibition of religion is contrary to the Establishment Clause of the First Amendment and is therefore invalid.

It is now an accepted proposition that the Constitution guarantees all people the right to practice any religion of their choosing or no religion at all, free of state interference.

          1. Epperson v. Arkansas

Suit seeking declaratory relief.

Epperson (P) attached the validity of an Arkansas (D) statute that prohibited the teaching of any doctrine based on the theory that mankind has evolved from a lower order of animals.

The First Amendment prevents state governments from enacting laws that promote any one religion or the concept of religion in general.

          1. Lynch v. Donnelly

Appeal from order enjoining a city sponsored nativity scene.

The district court held that Pawtucket’s (D) inclusion of a nativity scene in its Christmas display violated the Establishment Clause.

A nativity scene does not constitute a benefit to religion by a city displaying it and therefore such display does not violate the Establishment Clause.

Absent city endorsement of a particular religion, the display of religious symbol does not violate the Constitution – here, the nativity scene simply depicted the historical origin of a holiday and therefore, had a recognizable secular purpose.


The Lemon Test: (1) Does the government’s action have a secular purpose; (2) does the government’s action advance or inhibit religion; (3) does the government’s action create excessive governmental entanglement in religion.


          1. Allegheny County v. ACLU

Case holding a nativity scene in violation of the First Amendment

The crèche in Allegheny County was displayed in the county courthouse during the Christmas season. The crèche was owned and put up by a private Catholic group. In addition to the usual figures of Jesus, Mary, Joseph, shepherds and wise men, the crèche contained a banner proclaiming, “Gloria in Excelsis Deo!” The crèche occupied a prominent position on the Grand Staircase of the courthouse. There were no significant symbols nearby, such as Santa Clause, reindeer or “Seasons Greetings” banners – the crèche stood by itself.

The crèche violated the Establishment Clause because a reasonable observer seeing the display would believe that the government was endorsing a religious or sectarian message.

Unlike Lynch (above) the crèche was probably found to violate the Establishment Clause because (1) there were no other non-religious symbols nearby; (2) the display’s location in the courthouse was a prominent place in the seat of government; and (3) the crèche’s banner proclaiming “Gloria in Excelsis Deo” made its religious significance manifest to everyone.

          1. Wallace v. Jaffree

Appeal from grant of injunctive relief from school prayer statute.

Wallace (P) contended that an Alabama statute authorizing a period of silence for meditation or voluntary prayer was invalid because it violated the Establishment Clause of the first Amendment.

A nativity scene does not constitute a benefit to religion by a city displaying it and therefore such display does not violate the Establishment Clause.


      1. The Public Forum and the Establishment Clause

          1. Capitol Square Review and Advisory Board v. Pinette

Ku Klux Klan’s attempt to display a cross in a state park immediately in front of the Ohio statehouse did not violate the Establishment Clause.

The Pinette county state park had long been made available to a wide variety of public groups who wanted to conduct expressive activities, or erect unattended displays. The question was whether the state could deny the Klan’s attempt to put up a cross.

Five of the nine justices on the Court still favors the reasonable observer test, however three of the five justices believe that the reasonable observer should be one who is deemed to understand the history and context of the forum.

The government is free to require that any display contain a sign or other disclaimer to make it clear that private parties placed the display or the government could also close the forum to all privately placed displays.

          1. Rosenberger v. Rector and Visitors of the University of Virginia

Case involving the funding of a student publication.

University of Virginia funded an evangelical Christian student publication along with other student publications by paying for printing.

The university could fund the publication so long as the funds were paid to the third party printer.

The Court also said that the University would violate the Christian publication’s free speech if they failed to fund it equally with the other publications.

      1. Religiously Based Exceptions to State Imposed Duties

          1. McGowan v. Maryland

Action to determine the constitutionality of the state Sunday “blue law.”

McGowan (D) and others were indicted for violating a Maryland law prohibiting the Sunday sale of all merchandise, except the retail sale of certain goods.

State laws which were motivated by religious forces, but which now have a purpose and effect that do not aid religion, are not laws respecting an establishment of religion in violation of the First Amendment.

That the day chosen by the state has special significance to Christian sects does not prevent the state from achieving secular goal. Modern statutes that are designed to provide a uniform day of rest are not violations of the Establishment Clause.

          1. Braunfeld v. Brown

Appeal from a ruling upholding the constitutionality of a Sunday closing law.

Braunfeld (P) and other Orthodox Jews brought this action to challenge the constitutionality of a Pennsylvania criminal statute that proscribes the Sunday retail sale of certain enumerated commodities.

If a state regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the state’s secular goals, the statue is valid despite its indirect effect on religious observation unless there is an alternative means that does not impose such a burden.

The freedom to hold religious beliefs and opinions is absolute. However, the freedom to act, even when the action is in accord with one’s religious convictions, is not totally free from legislative restrictions.


The freedom to act in accord with one’s religious beliefs is not free from legislative restraint.

          1. Sherbert v. Verner

Action arising out of the Employment Security Commission’s (D) denial of Sherbert’s (P) claim for unemployment compensation benefits.

Sherbert (P) was discharged by her employer because she would not work on her religion’s Sabbath.

It is an unconstitutional burden on a worker’s free exercise of religion for a state to apply eligibility requirements for unemployment benefits so as to force a worker to abandon her religious principles respecting her religion’s Sabbath.

This case can be distinguished from Braunfeld because here Sherbert is being asked to do something in violation of her religious beliefs. In Braunfeld, the plaintiffs are simply being required to take Sunday, as well as their own Sabbath off.


Freedom of religion is not an absolute, and does not extend to situations where its practice would jeopardize public health, safety or morals, or the rights of third persons.

          1. Wisconsin v. Yoder

Appeal from conviction for violating state’s compulsory school attendance law.

Amish parents, in violation of state law, refused to send their children to public school after the eighth grade.

The state’s interest in universal education is subject to a balancing test within it infringes on other fundamental rights, such as those specifically protected by the First Amendment as applied to the states through the Fourteenth Amendment, and the right of parents to handle the religious upbringing of their children.



          1. Estate of Thornton v. Caldor, Inc.

Review of order invalidating state law because it violates the Establishment Clause of the First Amendment.

Connecticut enacted a law mandating that employers permit employees to observe their chosen Sabbath days.

A law mandating that employers allow employees to observe their Sabbath day violates the Establishment clause.

To survive an Establishment Clause challenge, a law must have a secular purpose, not foster excessive governmental entanglement in religion, and neither inhibit nor advance religion.

Be aware of situations when the Free Exercise Clause and the Establishment Clause collide.

          1. Employment Division, Department of Human Resources v. Smith

Appeal from judgment awarding unemployment compensation benefits.

Alfred Smith and Galen Black were fired from their jobs as drug counselors after they ingested peyote for sacramental purposes during a Native American Church ceremony.

An individual’s religious beliefs do not excuse his compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.

          1. Boerne v. Flores

Can congress redefine the meaning and scope of constitutional guarantees, themselves.

Congress enacted a statute, the Religious Freedom Restoration Act (RFRA), using its Fourteenth Amendment enforcement powers, to prevent local governments from unintentionally burdening individual’s religious freedom by mandating strict scrutiny for any law that substantially burdens a person’s religion. Congress was attempting to overrule Smith (above).

Congress has been given the power to enforce not the power to determine what constitutes a constitutional violation.






























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