Rough Study Guide for Final
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Sorry about the weird formatting, this is a rough study guide that is a combination of a couple of different things we've been working on as a group.

 The Slaughterhouse Cases
•    Decided April 14, 1873
•    Privileges and immunities of citizenship of the United Stateswere to be protected by the Fourteenth Amendment not privileges and immunities of citizenship of a state.
•    Majority: Miller (Joined by Clifford, Strong, Hunt, Davis)
•    Dissents: Field, Bradley, Swayne

"Private interests must be made subservient to the general interests of the community. This is called the police power."
    Concurring: None
    Dissenting: Field
"The privileges and immunities of citizens of the US, every one of them, is secured against abridgement in any form by any state."
         -Bradley
"This right to choose one's calling is an essential part of that liberty which it is the object of the government to protect; and a calling, when chose, is a man's property and right."
-Swayne
Privileges and immunities of citizenship of the United States were to be protected by the Fourteenth Amendment not privileges and immunities of citizenship of a state. Lochner V. New York
•    April 17, 1905
•    New York's regulation of the working hours of bakers was not a justifiable restriction of the right to contract freely under the 14th Amendment's guarantee of liberty.
•    Majority: Peckham
•    Dissents: Harlan, Holmes

"The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment."
    Concurring: None
    Dissenting: Harlan, Holmes
New York's regulation of the working hours of bakers was not a justifiable restriction of the right to contract freely under the 14th Amendment's guarantee of liberty.

The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. -"Holmes" dissent in Lochner
POLITICAL SPEECH AND LIBEL Abrams V. United States
•    November 10, 1919
•    Defendants' criticism of U.S. involvement in World War I was not protected by the First Amendment, because they advocated a strike in munitions production and the violent overthrow of the government.
•    Majority: Clarke

            -broke law because was inciting opposition to war effort
•    Holmes dissent

            -doesn't create immediate danger

                        -silly pamphlet by an unknown man

"It is only present danger of immediate evil or an intent to bring it about that warrants congress in setting a limit to the expression of opinion where private rights are not concerned."

Schenck v Unites States
•    March 3, 1919
•    Defendant's criticism of the draft was not protected by the First Amendment, because it created a clear and present danger to the enlistment and recruiting practices of the U.S. armed forces during a state of war.
•    Majority: Holmes (unanimous)

            -Holmes speaking for unanimous majority in Schenck v. United States: "The question in    every case is whether the words used 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." During wartime, utterances tolerable in             peacetime can be punished.

 "The question in every case is whether the words used 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."
    Concurring:   
    Dissenting:
Defendant's criticism of the draft was not protected by the First Amendment, because it created a clear and present danger to the enlistment and recruiting practices of the U.S.armed forces during a state of war. Debs V. United States
•    March 10, 1919
•    Debs was attempting to arouse mutiny and treason by preventing the drafting of soldiers into the United States Army. This sort of sentiment and speech was outlawed in United States with the Espionage Act of June 15, 1917
•    Majority: Holmes

            -found Debs to have encouraged disruption of war (specifically the draft) with the intent of hurting the war effort

                        -context matters

                                    -words in time of war may be blocked if danger to war effort

                        -invoked Clear and Present Danger test from Schenck

                                    -said Debs created danger of substantive evils that stateh had right to                                             protect against

"The question in every case is whether the words used 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." Quoted from Schenck
Holmes "intention and effect of obstructing the draft and recruitment for the war."

Gitlow V. New York
•    June 8, 1925
•    Though the Fourteenth Amendment prohibits states from infringing free speech, the defendant was properly convicted under New York's criminal anarchy law for advocating the violent overthrow of the government, through the dissemination of Communist pamphlets.
•    Majority: Sanford

            -applies First Amendment to states

                        -first time this happens

            -speech itself can be a crime (not necessarily joined with an action)

                        -state had right to limit speech aimed at overthrowing government (in this case                               capitalism)
•    Dissent: Holmes

            -claim Gitlow's actions didn't present danger of an attempt to overthrow the government

                        -need to see a present, imminent danger "If the publication of this document had been laid as an attempt to induce an uprising against government at once and not at some indefinite time in the future it would have presented a different question. The object would have been one with which the law might deal, subject to the doubt whether there was any danger that the publication could produce any result, or in other words whether it was not futile and too remote from possible consequences."
Though the Fourteenth Amendment prohibits states from infringing free speech, the defendant was properly convicted under New York's criminal anarchy law for advocating the violent overthrow of the government, through the dissemination of Communist pamphlets. Whitney V. California
•    May 16, 1927
•    Defendant's conviction under California's criminal syndicalism statute for membership in the Communist Labor Party did not violate her free speech rights as protected under the Fourteenth Amendment, because states may constitutionally prohibit speech tending to incite to crime, disturb the public peace, or threaten the overthrow of government by unlawful means.
•    Majority: Sanford

            -applied Clear and Present Danger Teset

                        -the state, he declared, has the power to punish those who abuse their rights to                               speech "by utterances inimical to the public welfare, tending to incite crime,                                   disturb the public peace, or endanger the foundations of organized government                                    and threaten its overthrow."

                        -found test met
•    Concurrence: Brandeis

            -said if no time for discussion, then speech can be limited

                        -if there is time for deliberation and a free exchange of ideas, then it cannot be                               limited

                        -in this case, there was no time for deliberation

"But even advocacy of violation, however reprehensible morally, is not justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would immediately be acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind."
    Dissenting:
Defendant's conviction under California's criminal syndicalism statute for membership in the Communist Labor Party did not violate her free speech rights as protected under the Fourteenth Amendment, because states may constitutionally prohibit speech tending to incite to crime, disturb the public peace, or threaten the overthrow of government by unlawful means. Dennis V. United States
•    June 4, 1951
•    Defendants' convictions for conspiring to overthrow the U.S.government by force through their participation in the Communist Party were not in violation of the First Amendment
•    Majority: Vinson

            -used Judge Learned Hand's formulation of clear and present danger test

                        -In each case [courts] must ask whether the gravity of the "evil," discounted by its                         improbability, justifies such invasion of free speech as necessary to avoid the                                  danger.

•    Concurrences: Frankfurter, Jackson
•    Dissents: Black, Douglas Masses Publishing Co. V. Patten
•    1917
•    New Yorkpostmaster's refusal to allow circulation of an antiwar journal under the statute violated the First Amendment. if a citizen "stops short of urging upon others that it is their duty or their interest to resist the law," then he or she is protected by the First Amendment.
•    Majority: Learned Hand

            -cannot be limited for talking about breaking the law

                        -but can be for inciting or advising or counseling to do so Brandenburg V. Ohio
•    June 9, 1969
•    Ohio's criminal syndicalism statute violated the First Amendment, as applied to the state through the Fourteenth, because it broadly prohibited the mere advocacy of violence rather than the constitutionally unprotected incitement to imminent lawless action.
•    Majority: Black, Douglas

            -can only limit if "direct to inciting or producing imminent lawless action and likely to      incite or produce such action"

                        -can talk about and teach such action but can't incite it New York Times V. Sullivan
•    March 9, 1964
•    The First Amendment, as applied through the Fourteenth, protected a newspaper from being sued for libel in state court for making false defamatory statements about the official conduct of a public official, because the statements were not made with knowing or reckless disregard for the truth. Supreme Court of Alabama reversed and remanded.
•    Majority: Brennan

            -can say bad things about public officials

                        -as long as not known to be false or said with reckless disregard for truth

                        -want open debate
•    Concurrences: Black, Goldberg

"The constitution requires, we think, a federal rule that prohibits a public official from revering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'"
    Concurring: Black
"We would more faithfully interpret the 1st amendment by holding that at the very least it leaves the people and the free press to criticize and discuss public affairs with impunity."
    Dissenting: Goldberg
The First Amendment, as applied through the Fourteenth, protected a newspaper from being sued for libel in state court for making false defamatory statements about the official conduct of a public official, because the statements were not made with knowing or reckless disregard for the truth. Supreme Court of Alabama reversed and remanded.
Offensive Speech: Obscenity, Flag Burning, and Cross Burning Roth V. United States
•    June 24, 1957
•    Obscenity is not protected by the First Amendment, but more strictly defines what is considered "obscene". Material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards."
•    Concurrence: Warren

            -worried about broad language being applied to art and science

                        -but seeing that obscenity not protected by Constitution concurred
•Brennan-(M) obscenity not protected

            -historically not

            -doesn't contribute to moral an political progress

            -must have redeeming social value

                        -obscenity lacks this

•Harlan-(D) should be up to states to decide what is obscene and what is not

            -not a federal question

                        -its up to states

•Douglas-(D)

            -congress has no power over sexual morality

                        -would limit social experiments of states

            -would overturn Roth but affirm Alberts

"All ideas having even the slightest redeeming social importance have the full protection of the guarantees, unless excludable because they encroach upon the limited area of more important interests."
"We hold that obscenity is not within the area of constitutionally protected speech or press"
    Concurring: Warren, Harlan
    Dissenting: Douglas, w/ Black
"To allow the state to punish speech or publication that the judge or jury thinks has an undesirable impact on thoughts but that is not shown to be a part of unlawful action is drastically to curtail the 1st."
Obscenity is not protected by the First Amendment, but more strictly defines what is considered "obscene". Material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards." Albert V. California
•   decided with Roth

            -state law rather than federal

            -Harlan concurred with Roth but dissented in Albert

                        -said 1st Amendment says "Congress shall make no law"

                                    -federal law is unconstitutional

                        -said states have ability to regulate

                                    -all states have different views about obscenity Miller V. California
•    June 21, 1973
•    Obscene materials are defined as those that the average person, applying contemporary community standards, find, taken as a whole, appeal to the prurient interest; that depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law; and that, taken as a whole, lack serious literary, artistic, political, or scientific value.
•Burger-(M) how is obscenity defined

            -three tiered test

                        -average person applying contemporary community standards would find                                       the work appealing to prurient interest

                        -the work depicts or describes sexual conduct specifically defined by the                                        applicable state law

                        -the work lacks serious literary, artistic, political, or scientific value

•Douglas-(D) shouldn't convict man of selling obscene material if sale occurs before a state had determined an article to be obscene

            -court has no power to define obscenity

            -no exception to free speech protections because it is offensive

•Brennan-(D) overbroad law so invalid on face

"We do not see the harsh hand of censorship of ideas and repression of political liberty lurking in every state regulation of commercial exploitation of human interest in sex."
-Three pronged test developed: 1) community standards, 2) violation of explicitly stated law, 3) does it have literary/artistic/scientific purpose?
    Concurring: None
    Dissenting: Brennan, Douglas
"Obscenity----is a hodge-podge. To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous this to do in a nation dedicated to fair trials and due process."
Obscene materials are defined as those that the average person, applying contemporary community standards, find, taken as a whole, appeal to the prurient interest; that depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law; and that, taken as a whole, lack serious literary, artistic, political, or scientific value. Paris Adult Theater V. Slaton
•    June 21, 1973
•    It was in the opinion of the court that the films under question were obscene and "hard core pornography," and that obscene, pornographic films do not acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. They agreed that the holding was properly rejected by the Georgia Supreme Court, and the Georgia Supreme Court had not violated the First Amendment's Freedom of Speech Clause. "legitimate state interests were at stake in stemming the tide of commercialized obscenity, including the community's quality of life and public safety."
•Burger-(M) films were obscene and consent meant nothing

            -communities quality of life and public safety plays a role

                        -time and place make a difference

•Douglas-(D) no exceptions for protection of obscenity

            -what is obscene is subjective

•Brennan-(D) consent makes a difference

            -community standards don't work

            -vague so people wont know when they're breaking the law

"Obscenity at most is the expression of offensive ideas. There are regimes in the world where ideas offensive to the majority (or at least to those who control the majority) are suppressed. There life proceeds at a monotonous pace. Most of us would that find that world offensive."
-Brennan
Our experience with the Roth approach has certainly taught us that the outright suppression of obscenity cannot be reconciled with the fundamental principles of the 1st and 14th amendment. For we have failed to formulate a standard that sharply distinguishes protected from unprotected speech."
It was in the opinion of the court that the films under question were obscene and "hard core pornography," and that obscene, pornographic films do not acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. They agreed that the holding was properly rejected by the Georgia Supreme Court, and the Georgia Supreme Court had not violated the First Amendment's Freedom of Speech Clause. "legitimate state interests were at stake in stemming the tide of commercialized obscenity, including the community's quality of life and public safety."  Texas V. Johnson
•    June 21, 1989
•    A statute that criminalizes the desecration of the American flag violates the First Amendment.
•Brennan-(M) burning flag is expressing idea or belief

                        -action expressing idea is protected by 1A

            -state has no overwhelming interest

                        -no breech of peace

                                    -Brandenburg

                                                -must be aimed at inciting violent or lawless action and                                                                    have a good chance of causing such action to occur

•Rehnquist-(D) flag special

                        -unique and revered symbol of nation

            -better ways of saying or expressing belief

                        -this was an animalistic grunt

•Stevens-(D) invaluable symbol

                        -tarnishes all that we value when you desecrate it

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
"In deciding whether particular conduct possesses sufficient communicative elements to bring the 1st amendment into play, we have asked whether 'an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it"
"We have not permitted the gov. to assume that every expression of a provocative idea will incite a riot, but instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression 'is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
    Concurring: Kennedy
    Dissenting: Rehnquist
"When a word or symbol acquires value as the result of organization and the expenditure of labor, skill and money by an entity, that entity constitutionally may obtain a limited property right in the word or symbol"
"His act, like Chaplinsky's provocative words, conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways."
-Stevens
"The court is therefore quite wrong in blandly asserting that the respondent "was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our 1st amendment values. Respondent was prosecuted because of the method he chose to express his dissatisfaction with those policies."
A statute that criminalizes the desecration of the American flag violates the First Amendment. Virginia V. Black, Barry E., et al
•    April 7, 2003
•    Virginia's statute against cross burning is unconstitutional because it places the burden of proof on the defendant to demonstrate that he or she did not intend the cross burning as intimidation.
•    Majority: O'Connor

            -state law constitutional because cross burning with intent to intimidate has history as        signal of impending violence (threat)

                        -new unprotected speech "True Threat"

            -did strike down the prima facie rule that intimidation was assumed intent
•    Concurrences: Stevens, Scalia, Souter
•    Dissents: Thomas, Scalia, Souter

            -Thomas

                        -cross-burning itself should be exception to 1st Amendment protection

            -Souter

                        -crime against cross-burning even with intent to intimidate is wrong because it has                         content-based discrimination

"Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm."
    Concurring: Scalia, Souter (in part)
    Dissenting: Thomas
Virginia's statute against cross burning is unconstitutional because it places the burden of proof on the defendant to demonstrate that he or she did not intend the cross burning as intimidation.

Virginia v. Black (2002) - Justice O'Connor in majority argues that the prima facie provision permits the state to proscribe cross burning regardless of the "intent to intimidate", and, in doing so, risks to create "an unacceptable risk of the suppression of ideas." While agreeing that cross-burning may arouse "a sense of anger and hatred", Justice O'Conner states that contextual factors need to be analyzed in deciding whether the "intent to intimidate" was actually present.

 

Justice Souter dissent - says same as R.A.V. v City of St. Paul. (content-based discrimination, i.e. the targeting of individuals who "provoke violence" on a basis specified in the law, is unconstitutional) Souter agrees with the majority's judgment on the unconstitutionality of the Virginiastatute, but argues that the implicit content-based distinctions of the statute render the legislation invalid regardless of the prima facie provision. Cross burning "selects a symbol with particular content from the field of all proscribable expression meant to intimidate."
FREE EXERCISE Reynolds V. United States
•    May 5, 1879
•    The First Amendment was not intended to, and therefore does not, protect the right to practice polygamy, even if such a practice is rooted in one's religious beliefs.
•    Waite-(M) actions can be regulated by government but beliefs cannot

            -cannot allow everyone to be a law unto himself

                        -wall of separation between church and state "To permit [exemption of Reynolds on grounds of his religious belief] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances."
"In the face of all this evidence it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life."
    Concurring: None
    Dissenting: None
The First Amendment was not intended to, and therefore does not, protect the right to practice polygamy, even if such a practice is rooted in one's religious beliefs.  Wisconsin V. Yoder
•    May 15, 1972
•    he Wisconsin Compulsory School Attendance Law violated the Free Exercise Clause of the First Amendment because required attendance past the eighth grade interfered with the right of Amish parents to direct the religious upbringing of their children.
•Concurrences: Stewart, White
•Burger-(M) compelling interest and proof that interest cannot be protected some other way (Strict Scrutiny)

            -didn't pass compelling interest

            -rejects Reynolds

•Douglas-(D) children should be consulted

            -family where girl testified is ok

            -other two should be retried

"Thus a state's interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by he free exercise clause of the 1st amendment, and the tradition interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, "prepare them for additional obligations."

The Wisconsin Compulsory School Attendance Law violated the Free Exercise Clause of the First Amendment because required attendance past the eighth grade interfered with the right of Amish parents to direct the religious upbringing of their children. Employment Division V. Smith
•    April 17, 1990
•    The Free Exercise Clause permits the State to prohibit sacramental peyote use and thus to deny unemployment benefits to persons discharged for such use." Neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment
• Scalia-(M) laws that are generally applicable and neutral are acceptable even if they burden religion indirectly

            -returns to Reynolds in that action can be blocked as long as beliefs are not

                        -can't have individuals as laws unto themselves

            -exemptions should be up the legislative majority

• O'Connor-(C) need to apply compelling interest

            -wouldn't pass

• Blackmun-(D) need to apply compelling interest

            -would pass

                        -state doesn't enforce law to begin with (its symbolic)

                                    -so no interest of highest order

"Because the 1st Amendment does not distinguish between religious belief and religious conduct, conduct motivated by religious belief, like the belief itself, must be at least presumptively protected by the Free Exercise Clause."
    Dissenting: Blackmun
The Free Exercise Clause permits the State to prohibit sacramental peyote use and thus to deny unemployment benefits to persons discharged for such use." Neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment

Justice Scalia majority in Employment division v. Smith: "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Law = generally applicable, Court had held that religious beliefs did not excuse people from complying with laws forbidding polygamy, child labor laws, Sunday closing laws, laws requiring citizens to register for Selective Service, and laws requiring the payment of Social Security taxes.  Church of Lukumi Babalu Aye V. City of Hileah
•    June 11, 1993
•    he ordinances were neither neutral nor generally applicable: rather, they applied exclusively to the church. Because the law was targeted at Santería, the Court held, it was not subject to an undemanding rational basis test: rather, it had to be justified by a compelling governmental interest, and be narrowly tailored to advance that interest. Because the ordinance suppressed more religious conduct than was necessary to achieve its stated ends, it was deemed unconstitutional.
•    Concurrences: Scalia, Blackmun

•Kennedy-(M) compelling government interest must be shown because the laws are not generally applicable nor neutral

            -differs from Yoder

                        -Yoder=if hurts FE protection need compelling interest

                        -This case=if aimed at religion particularly, must pass strict scrutiny "At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons."
"The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause."
    Concurring: Scalia, Souter, Blackmun
    Dissenting: None
The ordinances were neither neutral nor generally applicable: rather, they applied exclusively to the church. Because the law was targeted at Santería, the Court held, it was not subject to an undemanding rational basis test: rather, it had to be justified by a compelling governmental interest, and be narrowly tailored to advance that interest. Because the ordinance suppressed more religious conduct than was necessary to achieve its stated ends, it was deemed unconstitutional.
Establishment Clause: School Prayer Everson V. Board of Education of the Township of Ewing
•    February 10, 1947
•    A state or local authority may provide reimbursement for public transportation costs to students attending private religious schools. This funding must be available for all students regardless of which school they attend. The majority argues this NJ law does not establish a state religion as there is no special treatment for parochial students.
•Black-(M) law aimed at providing for public welfare but not at aiding religion in particular so doesn't breach wall of separation

            -can't prevent free exercise of people

•Jackson-(D) assisting students is same as aiding school and therefore religion

            -because helping them indoctrinate young members

            -by accepting protection from establishment, you give up right to aid

                        -when take aid, government can then tell you what to do

•Rutledge-(D) practice of religion and curriculum that combines secular and religious teachings is banned by 1A

            -paying for transportation is as important as paying for books or teachers

            -all students have equal right to attend public school

                        -if choose not to exercise that right, then they can't claim discrimination later "The 1st amendment requires the state to be neutral in its relations with groups of religious believers and non-believers; it dos not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.
    Concurring: None
    Dissenting: Rutlege, Jackson
"The object [of the 1st amendment] was broader than separating church and stat in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion."
A state or local authority may provide reimbursement for public transportation costs to students attending private religious schools. This funding must be available for all students regardless of which school they attend. The majority argues this NJ law does not establish a state religion as there is no special treatment for parochial students.  Engle V. Vitale
•    June 25, 1962
•    Government-directed prayer in public schools, even if it is denominationally neutral and non-mandatory, violates the Establishment Clause of the First Amendment.
•Black-(M) creation of prayer for schools is very essence of establishment

            -even if not coercive

                        -although subtle coercion exists in schools

            -secularism is only way to  ensure true religious freedom

                        -government must be neutral

•Douglas-(C) key that government doesn't finance religion

•Stewart-(D) nonpreferentialist argument

            -its ok to support all religion over no religion

                        -just can't be denomination about it

                                    -EC says no aid to any sect in particular

                        -this just passes down spiritual inheritance of this nation

                                    -prayers used by government all the time

"It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance."
    Concurring: Douglas
    Dissenting: Stewart
Government-directed prayer in public schools, even if it is denominationally neutral and non-mandatory, violates the Establishment Clause of the First Amendment. Wallace V. Jaffree
•    June 4, 1985
•    The State's endorsement, by enactment of 16-1-20.1, of prayer activities at the beginning of each school day is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion."
•    Concurrences: Powell, O'Connor
•    Dissents: Rehnquist, Burger, White

            -Rehnquist said that Court's use of Thomas Jefferson to argue Establishment Clause was wrong because he was not the author of that clause

•Stevens-(M) found it didn't pass first prong of lemon test

            -was not created for secular reasons

                        -only reason for law allowing meditation or voluntary prayer was to get                                          prayer back into public schools

            LEMON

                        secular reason

                        neutrality to religion

                        doesn't require excessive government entanglement with religion

            -serves as government endorsement or religion over nonreligion to have such                                  phrasing of the law

            -constitutionalized wall of separation

•Rehnquist-(D) nonpreferentialist argument rather than neutrality towards religion

            -can pass non-secular laws as long as don't bias a particular sect "for whenever the state itself speaks on a religious subject, one of the questions that we must ask is 'whether the government intends to convey a message of endorsement or disapproval of religion."
    Concurring: Powell, O'Connor
"A statute that ostensibly promotes a secular interest often has an incidental or even a primary effect of helping or hindering a sectarian belief. Chaos would ensue if every such stature were invalid under the establishment clause. For example, the state could not criminalize murder for fear that it would thereby promote the biblical command against killing. The task for the court is to sort out those statutes and government practices whose purpose and effect go against the grain of religion liberty protected by the 1st amendment."
    Dissenting: Rehnquist
"The state surely has a secular interest in regulating the manner in which public schools are conducted. Nothing in the establishment Clause of the 1st amendment, properly understood, prohibits any such generalized "endorsement" of prayer"
The State's endorsement, by enactment of 16-1-20.1, of prayer activities at the beginning of each school day is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion."  Lee V. Weisman
•    June 24, 1992
•    Including a clergy-led prayer within the events of a public high school graduation violates the Establishment Clause of the First Amendment.
•Kennedy-(M) in fair and real sense it was obligatory for students to attend

            -cites Wallace to show prayer in public school unconstitutional

            -subtle coercion exists, no real alternative to allow Deborah to avoid participating                          or appearance thereof

            -by trying to control what was in prayers, Lee (therefore state) was trying to                                   compose prayer for people

                        -uses Engel to back this as wrong

            -calls for neutrality towards religion

•Blackmun-(C) appears as state endorsement of religion over nonreligion

•Souter-(C) broad meaning because chose broad language over narrow language when passing 1st A

            -accommodations permissible under the EC must lift a discernible burden on the                            FE of religion

•Scalia-(D) prayer at ceremonies has been allowed since Amendments were passed

            -based on historical practice, calls for nonpreferentialism

            -says would block FE of those that wish to pray by not allowing them to do so at                          graduation

            -teaching respect for others beliefs

"it is beyond dispute that, at a minimum, the constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith, or tends to do so."
"we do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the state may not, consistent with the establishment clause, place primary and secondary school children in this position. Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention."
    Concurring: Blackmun, Souter
    Dissenting: Scalia
Including a clergy-led prayer within the events of a public high school graduation violates the Establishment Clause of the First Amendment.
Equal Protection for African Americans and Women Strauder V. West Virginia
•    October Term, 1879
•    Exclusion of individuals from juries solely because of their race is a violation of the Equal Protection Clause.
•    Majority: Strong

            -held that exclusion of blacks from juries for no other reason than their race did indeed     violate the Equal Protection Clause

                        -purpose was equality of blacks and whites

                                    -saying only whites on jury suggests that they are better

                                                -which writes inferiority into the law

                                                            -14thaimed directly against that

            -vacates Strauder's conviction
•    Dissent: Field

            -suggests that Court's principle would require trial jury to differ based on race

"the very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others."
Exclusion of individuals from juries solely because of their race is a violation of the Equal Protection Clause. Plessey V. Ferguson
•    May 18, 1896
•    The "separate but equal" provision of public accommodations by state governments is constitutional under the Equal Protection Clause.
•    Majority: Brown

            -Separate but equal acceptable

                        -protect equality before the law but not social equality

                                    -can't force whites and blacks to want to be together
•    Dissent: Harlan

            -calls for colorblindness

            -bring blacks into the full political fold

                        -not just formal equality

                                    -also prevent them from being made to feel inferior

"We cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable or obnoxious to the 14th amendment."
"the argument also assumes that social prejudice may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforce commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals."
    Concurring: None
    Dissenting: Harlan
"In the view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color=blind, and neither knows nor tolerates classes among citizens."
The "separate but equal" provision of public accommodations by state governments is constitutional under the Equal Protection Clause.

"We consider the underlying fallacy of the plaintiffs argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority, if this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." -Brown
"the argument also assumes that social prejudices may be overcome by legislation and that equal rights cannot be secured to the negro except by a forced commingling of the two races. We cannot accept this proposition"-Brown Bradwell V Illinois
•    April 15, 1872
•    Illinoisconstitutionally denied law licenses to women, because the right to practice law was not one of the privileges and immunities guaranteed by the Fourteenth Amendment. Illinois Supreme Court affirmed.
•    Majority: Miller

            -privilege and immunities clause of the 14th Amendment does not guarantee right to          practice a profession
•    Concurrence: Bradley

            -said women belong in the home
•    Dissent: Chase

"civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural an proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life."
    Dissenting: None
Illinoisconstitutionally denied law licenses to women, because the right to practice law was not one of the privileges and immunities guaranteed by the Fourteenth Amendment. Illinois Supreme Court affirmed.

Justice Bradley concurring with Miller majority in Bradwell v. Illinois: "The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life... The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." Minor V. Happersett
•    March 29, 1874
•    The Court held that voting is not a privilege of citizenship
•    Majority: Waite (unanimous)

            -citizen and voter have not been held to be the same

                        -so does not violate her 14th Amendment rights to limit voting to male citizens

                        -women have been citizens but not allowed to vote

                                    -not the reason behind 14th

"if the right of suffrage is one of the necessary privileges of a citizen of the united states, then the constitution and laws of Missouriconfining it to men are in violation of the constitution of the US... the direct question is, therefore, presented whether all citizens are necessarily voters."
Brown V. Board of Education
•    December 9, 1952
•    Segregation of students in public schools violates the Equal Protection Clause of the Fourteenth Amendment, because separate facilities are inherently unequal.
•    Majority: Warren(unanimous)

            -separate but equal does not apply in schools

                        -institutionalizes inferiority

                                    -makes black kids feel bad

            -overturns plessy in schools only

"does segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does."

Bolling V. Sharpe
•    May 17, 1954
•    Racial segregation in the public schools of the District of Columbia is a denial to Negro children of the due process of law guaranteed by the Fifth Amendment.
•    Majority: Warren(unanimous)

            -federal rather than state question

                        -cannot segretate based on race

                        -said that its unthinkable that constitution would place stricter restrictions on                                 federal government than states

"Segregation in public education is not reasonably related to any proper government objective, and thus it imposes on Negro children of DC a burden that constitutes an arbitrary deprivation of their liberty in violation of the DPC."
    Concurring: None
    Dissenting: None
Racial segregation in the public schools of the District of Columbia is a denial to Negro children of the due process of law guaranteed by the Fifth Amendment.
Antidiscrimination Principle and the Suspect Classification Standard

Loving V. Virginia
•    June 12, 1967
•    The Court declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924" unconstitutional, thereby ending all race-based legal restriction on marriage in the United States
•    Majority: Warren
            -racially discriminatory

            -doesn't meet rational basis

                        -so definitely won't meet strict scrutiny

                        -state purpose to protect white race

                                    -not legitimate

            -14thshoots down lawn prohibiting intermarriage between races

            -found freedom to marry as a new unenumerated right under Due Process "Thus the state contends that, because its miscegenation statues punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications do not constitute an invidious discrimination based upon race."
"the argument is that the EPC does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for  state to treat interracial marriages differently from other marriages. On this question, the state argues, the scientific evidence is substantially in doubt, and, consequently, this court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages."
"marriage is one of the 'basic civil right of man,' fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subservient of the principle of equality at the heart of the 14th Amendment"

Korematsu V. United States
•    December 18, 1944
•    The exclusion order leading to Japanese American Internment was constitutional.

"It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can."
"The judicial test of whether the gov, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so "immediate, imminent and impending" as to not admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger."
The exclusion order leading to Japanese American Internment was constitutional.

Black, opinion of Court in Korematsu

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. 

Roberts,dissent in Korematsu
Again, it is a new doctrine of constitutional law that one indicted for disobedience to an unconstitutional statute may not defend on the ground of the invalidity of the statute, but must obey it though he knows it is no law, and, after he has suffered the disgrace of conviction and lost his liberty by sentence, then, and not before, seek, from within prison walls, to test the validity of the law.

Jackson, dissent in Korematsu
They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence, courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.  
Preferential Treatment for Racial Minorities

Regents of the University of California V. Bakke
•    June 28, 1978
•    The Court held that while affirmative action systems are constitutional, a quota system based on race is unconstitutional.
•    Majority: Powell

            -race could be a factor

                        -no quotas
•    Intermediate Scrutiny: Brennan

            -support use of race
•    Concurrence/Dissent: Stevens

            -against all use of race in admissions "The attainment of a diverse student body clearly is a constitutionally permissible goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the 1st amendment. The freedom of a university to make its own judgments as to education includes the selection of its students"
    Concurring: None
Dissenting: Brennan, Blackmun
"Racial classifications designed to further remedial purposes must serve important governmental objectives and must be substantially related to achievement of those objectives."
- Marshall
"it is because of unequal treatment that we not must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America."
The Court held that while affirmative action systems are constitutional, a quota system based on race is unconstitutional.

"It was no longer possible to peg the guarantees of the 14th amendment to the struggle for equality of one racial minority"
 -Powell opinion in Bakke

"The freedom of a university to make its own judgments as to education includes the selection of its student body. The right to select those students who will contribute the most to the "robust exchange of ideas"...invokes a countervailing constitutional interest, that of the first amendment"
-Powel opinion in Bakke

"A state government may adopt race-conscious programs if the purpose of such programs is to remove the disparate racial impact its actions might have otherwise have and if there is reason to believe that the disparate impact is itself the product of past discrimination, whether its own or of the society at large"
-Brennan dissent in Bakke Grutter V. Bollinger
•    June 23, 2003
•    University of Michigan Law School admissions program that gave special consideration for being a certain racial minority did not violate the Fourteenth Amendment.
•    Majority: O'Connor

            -apply strict scrutiny

                        -has a compelling interest in achieving diversity

                        -narrowly tailored to that cause
•    Concurrence: Ginsburg
•    Concurrence/Dissent: Scalia, Thomas
•    Dissent: Rehnquist, Kennedy

"To be narrowly tailored, a race-conscious admissions program cannot use a quota system---it cannot 'insulate each category of applications with certain desired qualifications from competition with all other applicants."
    Concurring: Ginsburg
Dissenting: Kennedy, Rehnquist, Scalia, Thomas
"To be constitutional, a university's compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process."
University of MichiganLawSchooladmissions program that gave special consideration for being a certain racial minority did not violate the Fourteenth Amendment.

 "To be narrowly tailored, a race-conscious admissions program cannot use a quota system---it cannot 'insulate each category of applications with certain desired qualifications from competition with all other applicants."
-O'Connor Opinion in Grutter

"Stripped of its "critical mass" veil, the law school's program is revealed as a naked effort to achieve racial balancing"
-Rehnquist dissent in Grutter

The "percentage plans" are just as race conscious as the point scheme (and fairly so), but they get their racially diverse results without saying directly what they are doing or why they are doing it. Equal protection cannot become an exercise in which the winners are the ones who hide the ball.
-Souter dissent in Gratz Gratz V. Bollinger
•    June 23, 2003
•    A state university's admission policy violated the Equal Protection Clause of the Fourteenth Amendment because its ranking system gave an automatic point increase to all racial minorities rather than making individual determinations
•    Majority: Rehnquist

            -strict scrutiny applied

                        -compelling interest in achieving diversity

                        -not narrowly tailored
•    Concurrences: O'Connor, Thomas, Breyer

            -O'connor says that it doesn't require individual examination so it fails
•    Dissents: Stevens, Souter, Ginsburg

"A state's use of racial discrimination in higher education admissions is categorically prohibited by the EPC. The admission policy does not discriminate among the groups included within its definition of underrepresented minorities, but it does not sufficiently allowed for the consideration of nonracial distinctions among underrepresented minority applicants."
    Dissenting: Souter, Ginsburg
A state university's admission policy violated the Equal Protection Clause of the Fourteenth Amendment because its ranking system gave an automatic point increase to all racial minorities rather than making individual determinations 
Sex Equality and the Equal Protection Clause

Frontiero V. Richardson
•    May 14, 1973
•    The United States military cannot differentiate benefits based on gender.
•    Majority: Brennan

            -wants strict scrutiny rather than rational basis review

                        -parallel with race

                        -can't control sex
•    Concurrences: Stewart, Powell

            -Court should have waited

                        -Equal Rights Amendment in the process of being passed

                                    -would have been done legislatively

                                                -would make sex a suspect class

                                                            -than strict scrutiny required
•    Dissent: Rehnquist

"Any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving convenience, necessarily commands 'dissimilar treatment for ment and women who are similarly situated,' and therefore involves the 'very kind of arbitrary legislative choice forbidden by the constitution."
    Concurring: Powell
"Democratic institutions are weakened, and confidence in the restrain of the court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional process."
    Dissenting: Rehnquist
The United States military cannot differentiate benefits based on gender United States V. Virginia
•    June 26, 1996
•    State of Virginia's exclusion of women from the Virginia Military Institute violated Equal Protection Clause of the Fourteenth Amendment.
•    Majority: Ginsburg

            -applies intermediate scrutiny

                        -narrow tailoring

                                    -1-1

                                                -if even one woman could succeed at VMI and wants to go she                                                       must be allowed

            -found separate facility not good enough

                        -could not offer everything that VMI offers

•    Concurrence: Rehnquist
•    Dissent: Scalia

            -did not apply intermediate scrutiny as had done in the past

"it is not the 'exclusion' of women that violates the EPC, but the maintenance of al all-men's school without providing any----institution for women.
    Dissenting: Scalia
"The rationale of today's decision is sweeping: for sex-based classifications, a redefinition of intermediate scrutiny that makes it indistinguishable from strict scrutiny. Indeed, the court indicates that if any program restricted to one sex is 'unique', it must be opened to members of the opposite sex 'who have the will and capacity' to participate in it."
State of Virginia's exclusion of women from the Virginia Military Institute violated Equal Protection Clause of the Fourteenth Amendment.
Substantive Due Process

Griswold V. Connecticut
•    June 7, 1965
•    A Connecticut law criminalizing the use of contraceptives violated the right to marital privacy. Connecticut Supreme Court reversed.
•    Majority: Douglas
•    Concurrence: Goldberg, Harlan, White
•    Dissents: Black, Stewart

Griswold V Connecticut:

-This is the one where the court strikes down the statute forbidding married couples from using contraceptives. A due process clause argument is made drawing on a series of "penumbra" rights.

Douglass for the opinion:

-Firstly remember that he's trying to separate this case from the ruling of Lochner.
-He says "Overtones of some arguments suggest that Lochner V. New York should be our guide. But we decline that invitation...We do not sit on a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions"
-In other words the ruling against the statute isn't based on a lassiez-faire, let people do what they want argument. Instead he constructs a deeper right of privacy from several of the amendments "peripheral" or Penumbra rights.
-He says "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance".
-To back this up he cites the 1st amendment freedom of association significance would be greatly lessened without the peripheral right to have a privacy to association as well.

Goldberg Concurring:

-Goldberg is a little skeptical about penumbra rights.
-Her argument concurs in the idea that privacy in marital relations is a fundamental right and that state forays into the realm are fare more unconstitutional than not having such a law.
-  She says "Surely the government, absent a showing of compelling subordinating state interest, could not decree that all husbands and wives must be sterilized after two children have been born to them"
-Her argument draws from the 9th amendment. She doesn't assert that the 9th amendment allows for the court to make up rights, but rather that it showed an original understanding that not every fundamental right would be enumerated in the document. This right is an example.
-"The right of privacy in the marital relation is fundamental and basic---a personal right "retained by the people" within the meaning on the 9th amendment".

Black Dessent:

-Black voices his similar dislike of the Connecticut statute but objects to the lines of reasoning used to strike it down.
-He sees the penumbra reasoning as dangerous in creating precedence to widen or narrow the scope of various amendments. He says there are "guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities...it belittles [the 14th A.] to talk about it as though it protects nothing other than privacy"
-He doesn't like the argument coupling the 9th amendment to the 14th because he feels the court will either react to cases with the lochneresq lassiez-fair mindset or else make things up based on their own personal preferences.

Stewart Dissent:

-"As to the first, third, fourth, and fifth Amendments, I can find nothing in any of them to invalidate this Connecticut law, even assuming that all those amendments are fully applicable to the states".

"The entire fabric of the constitution and the purpose that clearly underlie its specific guarantees demonstrate that the right to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected."
- Harlan
"It would surely be an extreme instance of sacrificing substance to form were it to be held that the constitutional principle of privacy against arbitrary official intrusion comprehends only physical invasion by the police."
Dissenting: Black, Stewart
"I can find no such general right of privacy in the bill of rights, in any other part of the constitution, or in any case ever before decided by this court."   
A Connecticutlaw criminalizing the use of contraceptives violated the right to marital privacy. Connecticut Supreme Court reversed. Eisenstadt V. Baird
•    March 22, 1972
•    A Massachusetts law criminalizing the use of contraceptives by unmarried couples violated the right to equal protection.
•    Majority: Brennan
•    Concurrence: White
•    Dissent: Burger

EISENSTADT VS BAIRD

Justice Brennan Opinion:

-In this case it was held that the distinction between married and unmarried couples' ability to obtain contraceptives violated the equal protection clause through the rational basis review test.
-Brennan says "Whatever the rights of the individual to access to contraceptives may be, the rights must be the same for unmarried and married alike".
-He also asserts that a married couple is an association of two individuals with separate "intellectual and emotional makeup. He says "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether or not to bear or beget a child"

"Of the right of the individual means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
    Concurring: None
    Dissenting: Burger
A Connecticut law criminalizing the use of contraceptives violated the right to marital privacy. Connecticut Supreme Court reversed. Roe V. Wade
•    January 22, 1973
•    Texaslaw making it a crime to assist a woman to get an abortion violated her due process rights. U.S. District Court for the Northern District of Texas affirmed in part, reversed in part.
•    Majority: Blackmun
•    Concurrences: Burger, Douglas, Stewart
•    Dissents: White, Rehnquist

ROE V WADE

BLACKMUN OPINION:

-Blackmun starts of his arguments through analysis of common law histories and the view of the medical profession generally finding opinions to sway over the course of time.
-He articulates 3 possible reasons for the existence of criminal abortion law. 1) A Victorian social concern to discourage illicit sex conduct. 2) Danger of the abortion procedure to the mother. 3) State duty to protect prenatal life. He only REALLY cares about option 3.
-Blackmun then doctrinally cites the court's acknowledgment of privacy guarantees in either the 14th or 9th amendment (depending on your views from Griswold) and declares them "broad enough to encompass a woman's decision whether or not to terminate her pregnancy".
-He recognizes the various reasons a woman would seek out an abortion.
-This sentiment is qualified however by a recognized state interest in "safeguarding health, in maintaining medical standards, and in protecting potential life", which become bigger issues as the pregnancy progresses.
-Blackmun keeps the court out of the argument over when life begins, but pegs the "compelling point" for state interest and regulation at fetus viability.
-The court doesn't agree that "by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake".
IN SUMMARY:
-The Texasstatute violated the due process clause.
-For 1st trimester the abortion decision is left to the physician
-After the 1st trimester the state can regulate abortion for consideration to maternal health.
-At viability the state can prescribe abortion for the preservation of the life or health of the mother.

DOUGLASS CONCURRENCE:

-Douglass cites several penumbra laws that demand consideration when considering the negative effects childbirth may have on the health and future of the woman.
-Further, he doesn't agree that all the phases of maturation preceding birth are equal.

STEWART CONCURRENCE:

-Stewart agrees with the Roe decision supported by the liberty protected by the due process clause. In matters of marriage and family life, it has been reaffirmed a lot by the court.

RHENQUIST DESSENT

-Renquist is really pissed.
-He sees no relation between the right to get an abortion and privacy.
- "Freedom from searchers and seizures protected by the Fourth Amendment to the constitution, which the court has referred to as embodying a right to privacy" has nothing to do with an operation.
-Court's invalidation of restrictions to abortions in the 1st trimester is impossible to justify under a standard of pursuing a valid state objective.
-The idea that the court has had to lay out distinct terms by which state regulations may take place "partakes more of judicial legislation than it does of a determination of the intent of the drafters of the 14th amendment".
-The drafters by the way, probably new what they were getting into when the amendment was passed considering 36 laws enacted by state or territorial legislatures prohibiting abortion were on the books, 21 of which remain in effect today (despite standard updating).
-Rhenquist further asserts that because a majority of states representing a majority of sentiment in those states have restrictions on abortions, it is impossible to paint the procedure as a deep seeded, traditional, or fundamental right.

WHITE DISSENT:

-White finds nothing in the constitution to support the courts judgment.
-"The court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes."
-The decision of regulating abortion should remain with the legislature.

"The court has recognized that a right to personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the constitution."
    Concurring: Stewart, Douglas
"Several decisions of this court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the DPC of the 14th Amendment"
    Dissenting: Rehnquist, White
Texas law making it a crime to assist a woman to get an abortion violated her due process rights. U.S. District Court for the Northern District of Texas affirmed in part, reversed in part
Abortion

Stenberg V. Carhart
•    June 28, 2000
•    Laws banning partial-birth abortion are unconstitutional if they do not make an exception for the woman's health, or if they cannot be reasonably construed to apply only to the partial-birth abortion (intact D&X) procedure and not to other abortion methods.
•    Majority: Breyer
•    Concurrences: Stevens, O'Connor, Ginsburg
•    Dissent: Kennedy, Scalia, Thomas

STENBERG V. CARHART

JUSTICE BREYER OPINION:

-Voided the Nebraskaban on partial birth abortion for two main reasons.
-1) The Prohibition on partial birth abortions in the 2nd trimester lack exception for the health of the mother required by the ruling in Casey.
-He says "A state cannot subject women's health to significant risks...where state regulations force woman to use riskier methods of abortion (D&E vs D&X)...A risk to a woman's health is the same whether it happens to arise from regulating a particular method of abortion, or from barring abortion entirely".
-In regards to the phrase "Necessary, in appropriate medical judgment for the preservation of life and health of the mother", necessary does not require absolute proof or consensus because those things are hardly present in any major medical decision.
-2) Nebraskastatute also violated the right to abortion as it pushed D&E over D&X even when the latter can be a safer option. "By restricting the safest and most common form of second trimester abortion, the statute imposed an undue burden under Casey".

JUSTICE STEVENS CONCURRENCE

-"The notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational".

JUSTICE GINSBURG CONCURRENCE

-She accused the Nebraskalaw of chipping away at the right to abortion.

KENNEDY DISSENT

-He argues through a graphic description of the D&X procedure that because of the similarity in appearance to infanticide, "Nebraska's ban on partial birth abortion furthers purposes states are entitled to pursue".
-Kennedy asserts that the point of Casey was to give greater freedom to the states to draw their own opinions of abortion.
-In response to Stevens, he says "The issue is not whether members of the judiciary can see a difference between the two procedures. It is whether Nebraska can."
-Because D&E can be used in the second trimester, even at slightly higher risk, Nebraskais justified in maintaining its ban of D&X out of interests in "the sanctity of life" because there are safe alternatives.
-"The difference in physical safety is, at best, marginal".
-The statute only really covers the D&X procedure.

THOMAS DISSENT

-Thomas accuses the majority opinion of drawing more from Roe and Casey than was there. While the former two cases articulated a situation where a woman must get an abortion, the decision in this case addressed issues of method.
-Further, "Although Roe and Casey mandate a health exception for cases in which abortion is necessary for a woman's health, the majority concludes that a procedure is "necessary" if it has any comparative benefits".
-Thomas asserts that this health exception eviscerates the undue burden standard of Casey and allows for abortion on demand any time a doctor says something might be safer.
-"The Majority's insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the states---a hostility that Casey purported to reject..."

"A state cannot subject women's health to significant risks where state regulations force women to use riskier methods of abortion."
    Concurring: O'connor, Stevens, Ginsburg
    Dissenting: Kennedy, Rehnquist, Scalia
"The majority and O'Connor fail to distinguish between cases in which health concerns require a woman to obtain an abortion and casses in which health concerns cause a women who desires an abortion to prefer one method over another."
Laws banning partial-birth abortion are unconstitutional if they do not make an exception for the woman's health, or if they cannot be reasonably construed to apply only to the partial-birth abortion (intact D&X) procedure and not to other abortion methods. Planned Parenthood of Pennsylvania V. Casey
•    June 29, 1992
•    A Pennsylvania law that required spousal notification prior to obtaining an abortion was invalid under the Fourteenth Amendment because it created an undue burden on unmarried women seeking an abortion. Requirements for parental consent, informed consent, and 24-hour waiting period were constitutionally valid regulations.
•    Majority: O'Connor, Kennedy, Souter
•    Concurrence/Dissent: Stevens, Blackmun, Rehnquist, Scalia

PLANNED PARENTHOOD OF PENNSYLVANIAV CASEY

O'CONNOR/KENNEDY/SOUTER for Opinion:

-This opinion was very very very long...

-They decide to uphold the fundamental tenants of Roe: 1) Right of Woman to choose to have an abortion before viability. 2) Confirmation of the state's power to restrict abortion following viability. 3) State has a legitimate interest from the start of pregnancy to protect life of the woman and the fetus.
-They point out in a possible response to the Rhenquist dissent that neither the bill of rights nor the existing practices of law in place during the adoption of the 14th amendment limits the sphere of substantive liberty protected.
-"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion by the state."
-Another principle by which they uphold Roe is through stare decisis. They open the opinion with the line "Libertyfinds no refuge in a jurisprudence of doubt".
-The ruling, they argue, shouldn't be overturned as it was not unworkable, two decades of legality had created a degree of reliance, and no evolution of legal principle had left the ruling weaker than its original state.
-Stare decisis is important because A) frequent overruling makes people lose faith in the ability of the court to make decisions and B) The court can't look like its bending to political pressures.
-And even though "We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate", overruling would lead to "profound and unnecessary damage to the court's legitimacy, and the Nation's commitment to the rule of law".
-They point out that although the woman can choose to have an abortion before viability, states can take steps to ensure the choice is "thoughtful and informed"
-They reject the trimester formula as undervaluing interest in the potential life of the fetus.
-The "without interference from the state" line in Roe was deemed an overstatement and balanced by the undue burden test:
-"Undue burden is a 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. A statute with this purpose is invalid because the means chosen by the state to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it."
-1) In cases of serious risk to the mother, abortions are allowed to save her life absent of regulations.
-2) A 24 hour waiting time doesn't constitute an undue burden.
-3) The second provision regarding spousal consent was thrown out however.
-4) Minors seeking abortions must have consent of at least one parent.
-5) Record keeping didn't constitute an undue burden.

STEVENS CONCURRENCE/DISSENT

-The interest in protecting potential life is not grounded in the Constitution.
-Statues requiring doctors to provide patients with materials specifically aimed at persuading her not to undergo the procedure are not neutral and are unconstitutional.
-The 24 hour delay is also unconstitutional A) as an attempt at wearing down the ability of the woman to exercise her right and B) because there's no evidence the added time will alter an opinion.
-"A woman who decides to terminate her pregnancy is entitled to the same respect as a woman who decides to carry the fetus to term".
-"A burden may be undue either because the burden is too severe or because it lacks a legitimate, rational justification."

BLACKMUN CONCURRENCE/DISSENT
-Notions of gender equality. "State restrictions on abortion compel women to continue pregnancies they may otherwise terminate".

RHENQUIST CONCURRENCE/DISSENT
-Joint decision "retains the outer shell of Roe V Wade, but beats a wholesale retreat from the substance of that case". They believed it was wrongly decided and should be overturned.
-Abortion decision should be considered sui generis because of the unique nature in terminating potential life. This draws a distinction from personal/family privacy and autonomy.
-The joint opinion rejects many of the views affirmed by Roe including: 1) Woman has a fundamental right to an abortion, 2) Abortion regulations are subject to strict scrutiny and compelling state interest, 3) the trimester framework used to analyze regulation.
-Stare decisis is a bad excuse because "correction through legislative action, save for constitutional amendment, is impossible".
-He spends a lot more time taking pot shots at the majority opinion and their use of stare decisis.
"The judicial branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of government comport with the constitution".
-Undue burden standard is based even more on a judge's subjective determinations than the trimester framework.
-What provisions are appropriate for regulating abortion should be decided by the legislatures.
-State has a legitimate interest in promoting the "integrity of the marital relationship"

SCALIA CONCURRING/DISSENTING
-"The constitution says absolutely nothing about it, and the longstanding traditions of American society have permitted it to be legally proscribed"
-By using the rational basis test Scalia would have upheld the Pennsylvania statute in its entirety.
-"Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally "intimate" and "deeply personal" decisions involving "personal autonomy and bodily integrity".
-Parallels to Justice Taney who sat on the Dred Scott Case. He also may have thought he was ending a troublesome era of controversial debate.

"It is a promise of the constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the bill of rights and interracial marriage was illegal in most states in the 19th century, but the court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive components of the DPC."
"our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child"
"in our view, the undue burden standard is the appropriate means of reconciling the state's interest with the woman's constitutionally protected liberty."
    Concurring: None
Dissenting: Stevens, Blackmun, Rehnquist, Scalia
A Pennsylvania law that required spousal notification prior to obtaining an abortion was invalid under the Fourteenth Amendment because it created an undue burden on unmarried women seeking an abortion. Requirements for parental consent, informed consent, and 24-hour waiting period were constitutionally valid regulations. 
Suicide and Euthanasia

Cruzan V. Director, Missouri Department of Health
•    June 25, 1990
•    The United States Constitution does not forbid Missouri to require that evidence of an incompetent's wishes as to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence. The Due Process Clause does not require a State to accept the "substituted judgment" of close family members in the absence of substantial proof that their views reflect the patient's.
•    Majority: Rehnquist
•    Concurrence: O'Connor, Scalia
•    Dissent: Brennan, Stevens

CRUZAN V DIRECTOR, MISSOURI DEPARTMENT OF HEALTH

RHENQUIST OPINION

-Rhenquist cites common law to establish the notion that the right to refuse medical treatment is encompassed by the informed consent of a competent individual. "We assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition".
-Arguing that the state is in fact, not required to remain neutral, there is a legitimate interest in protecting "the personal element of this choice through the imposition of heightened evidentiary requirements".
-This is qualified by the recognition that not everyone has loved ones to act as surrogate decision makers, that sometimes those loved one's would abuse such a privilege, and that the state cannot make quality of life judgments.
-"We do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself" and testimony offered at the hearing didn't sufficiently demonstrate that Nancy Cruzan would refuse hydration and nutrition.
-"All of the reasons previously discussed for allowing Missouri to require clear and convincing evidence of the patient's wishes lead us to conclude that the State may choose to defer only to those wishes, rather than confide to close family members"

O'CONNOR CUNCURRENCE

-O'Connor agrees that refusing medical treatment is a inferred protected liberty.
-"Because our notions of liberty are inextricably entwined with our idea of physical freedom and self-determination, the court has often deemed state incursions into the body repugnant to the interests protected in the Due Process Clause".
-The opinion is only granting that one state's practice of evaluating the patients interest is not in violation of the Constitution and "the more challenging task of crafting appropriate procedures for safe guarding incompetents' liberty interests is entrusted to the "laboratory" of the States in the first instance".

SCALIA CONCURRENCE

-Scalia agrees with the opinion but feels that the Court has no business in this field.
-He asserts that "no substantive due process claim can be maintained unless the claimant demonstrates that the State has deprived him of a right historically and traditionally protected against state interference" and thus can't be established here.
-Scalia cites common law defining suicide as any deliberate attempt to end one's life to show that the "right" to suicide is not fundamental or implicit to ordered liberty.
-He breaks down arguments seeking to distinguish the Cruzan case from suicide by 1) rejecting the notion that she is permanently incapacitated and in pain.
2) There is no distinction between action to take one's life and inaction. "Starving oneself to death is no different from putting a gun to one's temple as far as the common-law definition of suicide is concerned".
3) Interfering with her wish to die is not a violation of her bodily integrity because "It has always been lawful not only for the state, but even for private citizens, to interfere with bodily integrity to prevent a felony".
-"To raise up a constitutional right here we would have to create out of nothing...some constitutional principle whereby, although the State may insist that an individual come in out of the cold and eat food, it may not insist he take medicine; and although it may pump his stomach empty of poison he ingested, it may not fill his stomach with food he has failed to ingest."

BRENNAN DISSENT
-Missouri has interest in determining as accurately as possible how Cruzan would have exercised her rights had she been competent and in providing the treatment she articulates.
-"The state has no legitimate general interest in someone's life, completely abstracted from the interest of the person living that life, that could outweigh the person's choice to avoid medical treatment".
-It's not fair that evidence to suspend treatment requires clear and convincing evidence but no proof is needed to continue treatment. "Missouri has no such power to disfavor a choice by Nancy Cruzan to avoid medical treatment".

STEVENS DISSENT
-The court's ruling provides no protection to patients who didn't have the foresight or were unable to convey how they wished to be treated in such instances. Considering many of these cases are the result of sudden accidence this disenfranchises the desires of many.
-Stevens argues that "her fate is in the hands of the state legislature instead of in those of her family, her independent neutral guardian, and an impartial judge---all of whom would agree on the course of action that is in he best interest".
-Nancy Cruzan has an interest not only in her life, but also her death.
-He asserts that Missouri's purported interest in protecting life is wrong because "it is an effort to define life rather than protect it".
-The court's approach to Nancy Cruzan seems to be that she has no "constitutionally cognizable interests" and her fate is subject to a state definition regarding quality of life. "We do not think the DPC requires the state to repose judgment on these matters with anyone but the patient herself."
"We think the state may properly decline to make judgments about the quality of life that a particular individual may enjoy, and simply asset an unqualified interest in the preservation of human life to be weighed against constitutionally protected interests of the individual."
Concurrence: O'Connor, Scalia
"Because our notions of liberty are inextricably entwined with our idea of physical freedom and self-determination, the court has often deemed state incursions into the body repugnant to the interests protected by the DPC."
Dissent: Brennan, Stevens

The United States Constitution does not forbid Missouri to require that evidence of an incompetent's wishes as to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence. The Due Process Clause does not require a State to accept the "substituted judgment" of close family members in the absence of substantial proof that their views reflect the patient's.

Cruzan v. Missouri - Majority Rehnquist assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual" without making judgments concerning the "quality of life" of that individual.  Accordingly, the Court argues that the "clear and convincing" requirement is a constitutional means of protecting these interests of the state. 

 

Scalia dissent "'there is no significant support for the claim that a right to suicide is so rooted in our tradition that it may be deemed 'fundamental' or 'implicit in the concept of ordered liberty'"

 

Brennan (with Marshall and Blackmun), dissenting: the State has no legitimate general interest in someone's life, completely abstracted from the interest of the person living that life, that could outweigh the person's choice to avoid medical treatment." Washington V. Glucksburg
•    June 26, 1997
•    The Court held that the Due Process Clause did not protect a right to assistance in committing suicide.
•    Majority: Rehnquist

            -not fundamental liberty interest because not deeply rooted in nation's history

                        -since no right to suicide, not right to assist in suicide

                        -so apply rational basis review

                                    -state interest in protecting life, protecting image of medical field, etc.

                                    -rationally related
•    Concurrences: O'Connor, Stevens, Souter, Ginsburg, Breyer

            -Souter

                        -must look at evolution of traition

                                    -look at states and lower courts

                                                -suicide gaining acceptance

                                                            -but not yet there

                        -afraid that euthanasia will follow

                                    -cheaper to kill than keep alive

            -O'connor

                        -all families go through this, so let legislatures decide

"The question before us is whether the liberty specially protected by the DPC includes a right to commit suicide which itself includes a right to assistance in doing so."
"Our decisions lead us to conclude that the asserted right to assistance in committing suicide is not a fundamental liberty interest protected by the DPC."
    Concurrences: O'Connor, Stevens, Souter, Ginsburg, Breyer
The Court held that the Due Process Clause did not protect a right to assistance in committing suicide. Vacco V. Quill
•    June 26, 1997
•    States have a legitimate interest in outlawing assisted suicide; "liberty" defined in the 14th Amendment does not include the right to kill oneself, or assistance in doing so.
•    Majority: Rehnquist
•    Cuncurrences: O'Connor, Stevens, Souter, Ginsburg, Breyer

"We think the distinction between assisting suicide and withdrawing life-sustaining treatment, a distinction widely recognized and endorsed in the medical profession and in our legal traditions, is both important and logical."
    Cuncurrences: Stevens, Souter, Ginsburg, Breyer, O'Connor
"Although as a general matter the state's interst in the contributions each person may make to society outweighs the person's interest in ending her life, this interest does not have the same force for a terminally ill patient forced not with the choice of whether to live, only of how to die."


Sexual Orientation and Privacy

Bowers V. Hardwick
•    June 30, 1986
•    A Georgia law classifying homosexual sex as illegal sodomy was valid because there was no constitutionally protected right to engage in homosexual sex.
•    Majority: White

            -law against sodomy does not violate DP of 14th Amendment

                        -no fundamental right to homosexual sodomy

                                    -no tradition

                                                -in fact tradition against this

                                                            -laws have banned it for years

                        -privacy is inaction not place

                                    -if being at home made it ok, then anything could be ok at home
•    Concurrences: Burger, Powell

            -Burger driven by moral opposition to homosexuality

            -Powell says it might violate 8th protection against cruel and unusual punishment
•    Dissent: Blackmun, Stevens

            -Blackmun

                        -privacy both activity and place

                        -many right ways of relationships

                                    -protect right to choose

                                                -don't pick one over the other instead

                                                -doesn't affect others

                                                            -moral opinion of majority not good enough justification

            -Stevens

                        -can't apply to all

                                    -Eisenstadt applies privacy to individuals

                                                -requires equal protection

                                                            -can't single out gays

"We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual's life."
"The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a nation as diverse as ours, that there may be many right ways of conducting those relationships, and that must of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds."
"This case involves no real interference with the rights of others, for the mere knowledge that other individuals do not adhere to one's value system cannot be a legally cognizable interest, let alone an interest that can justify invading the houses, hearts, and minds of citizens who choose to live their lives differently."
A Georgialaw classifying homosexual sex as illegal sodomy was valid because there was no constitutionally protected right to engage in homosexual sex. Romer V. Evans
•    May 20, 1996
•    An amendment to the Colorado Constitution that prevents extra protection under the law for homosexuals was struck down because it was not rationally related to a legitimate state interest.
•    Majority: Kennedy

            -Amendment 2 could be read to prevent protection for homosexuals from discrimination               on any and all grounds

            -unfair to make one group go to state level to get antidiscrimination laws while all others   go to municipality

            -applies rational basis

                        -lacks rational relationship to legit state interest

                                    -no reason other than to hurt gays as a group
•    Dissent: Scalia

"if the constitutional conception of equal protection of the laws means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."
    Concurring: None
    Dissenting: Scalia
"But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful; often, abolition simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens."
An amendment to the Colorado Constitution that prevents extra protection under the law for homosexuals was struck down because it was not rationally related to a legitimate state interest. Lawrence V. Texas
•    June 26, 2003
•    A Texas law classifying homosexual intercourse as illegal sodomy violated the privacy and liberty of adults to engage in private intimate conduct under the 14th amendment.
•    Majority: Kennedy
•    Concurrence: O'Connor
•    Dissents: Scalia, Thomas

Issue:  The lower court argued this as an equal protection case. Kennedy, writing for the Court, argues it as a due process challenge. Is there a fundamental right of liberty? 
Reasoning (Kennedy):

            Kennedy makes an argument different from that in previous doctrine.  Before, the Court had asked, "is there a fundamental right for gay sodomy?"  Kennedy, on the other hand, makes an argument that Barnett would approve of; he argues a presumption of liberty.  He says that if the statute wants to be sustained, it must have state interest, and "morals" are not a state interest. Dissent:

A.     Scalia likes this case to Casey.  He says that the law is eroded, unpopular, and nobody actually uses it, but we're not going to overturn Roe, so we shouldn't overturn Bowers either.  He poses the following hypothetical: if we follow Casey'sframework, we will have even stronger reason to stick with Bowers that we have to stick with Roe!  In such a situation, the Court would also have to "impose" gay marriage! (...just you wait, Justice Scalia...)

B.     Thomas echoes his dissent in Griswold. 
Significance:  There is a presumption of liberty in rational basis due process cases.  Bowers is overturned.   "If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, it stigma might remain even if it were not enforceable as drawn for equal protection reasons."
"'the state cannot demean their existence or control their destiny by making their private sexual conduct a crime."
    Concurring: O'Connor
"When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the EPC, especially where, as here, the challenged legislation inhibits personal relationships."
    Dissenting: Scalia, Thomas
A Texas law classifying homosexual intercourse as illegal sodomy violated the privacy and liberty of adults to engage in private intimate conduct under the 14th amendment.

Scalia, dissent in Lawrence
It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.
scalia lawrence

Kennedy, opinion of the Court in Lawrence

They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

 Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.

 Libertyprotects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Libertypresumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. 
Same-Sex Marriage

Goodridge V. Department of Public Health
•    2003-11-18
•    The denial of marriage licenses to same-sex couples violated provisions of the state constitution guaranteeing individual liberty and equality, and was not rationally related to a legitimate state interest.
•    Majority: Marshall
•    Concurrence: Greaney
•    Dissents: Spina, Sosman, Cordy.

"For the reasons we explain below, we conclude that the marriage ban does not meet the rational basis test for either due process or equal protection."
"Limiting protections, benefits, and obligations of civil marriages to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Mass. Constitution."
    Concurring: Greaney
    Dissenting: Spina, Sosman, Cordy
"The statute in question does not seek to regulate intimate activity within an intimate relationship, but merley gives formal recognition to a particular marriage."
The denial of marriage licenses to same-sex couples violated provisions of the state constitution guaranteeing individual liberty and equality, and was not rationally related to a legitimate state interest

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