the first part of the project is about the subject of "venture capital" and the second part is about ""into to us system law.
Michelle_Michy
CandlerIntrotoUSClass4.pptxIntro to U.S. Law Prof. Betsy Candler Summer 2018
Class 4, July 18 - PM
1
Individual Rights – Equal Protection & Fundamental Rights
7 Cases:
Loving
Bowers
Romer
Lawrence
Windsor
Hollingsworth
Obergefell
Masterpiece Cakeshop
Review is always substantive (even RB), just a question of how high a level of review the courts will give.
Marriage
Loving v. Virginia (1967) (invalidated)
State laws that were invalidated:
Boddie v. Connecticut (1971) (invalidated)
Zablocki v. Redhall (1978) (invalidated)
Treatment of Fed Soc Sec Act provisions:
Califano v. Jobst (1977) (upheld)
Bowen v. Owens (1986) (upheld)
Same Sex Marriage
Windsor (2015) (invalidated)
Obergefell (2015) (invalidated)
Lawrence v. Texas (2003) (invalidated)
Hollingsworth v. Perry (2013) (standing issue – let invalidation remain)
Loving v. Virginia (1967)
Recap:
VA statute attempting to prevent interracial marriages between a white person and a non-white person. Racial Integrity Act of 1924.
14th Am – EP Violation
Impermissible race discrimination
Equal Application is not a valid analysis deserving of lesser scrutiny.
No legit purpose "independent of invidious racial discrimination.”
Here, also 14th Am – Due Process Clause violation.
Marriage is one of the basic civil rights of man. Cites Skinner.
"Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State."
Lawrence v. Texas (2003)
Protection for private, consensual, adult sexual activity
Expressly overruled Bowers v. Hardwick
Bowers (1986) held there was no fundamental right to engage in
homosexual sodomy OR private consensual homosexual activity
Even though the GA law addressed both same-sex and heterosexual activity, the Court limited its reasoning to homosexual sodomy.
Based on the text, framers’ intent, and history/tradition, there is no right.
Precedent for Obergefell
Lawrence (2003) & Hollingsworth v. Perry (2013) & Windsor (2013)
Hollingsworth:
CA Prop 22 – marriage = a union between 1 man & 1 woman.
2008 – Cal Supreme Court invalidated Prop 22 based on CA Constitution’s EP Clause.
Nov. 2008 – CA Prop 8 passed, amending CA Constitution to provide that "only marriage between a man and a woman is valid or recognized by California.”
This suit arose out of the challenge to Prop 8 as a 14th Am EP Clause violation. State officials did not defend Prop 8 at trial level
Petitioners, official proponents of the measure, intervened to defend it.
The district court held that Prop 8 violated the Constitution, Ninth Circuit affirmed.
Court ruled that petitioners did not have standing. No merits ruling.
Windsor (2013)
Same day as Hollingsworth. Leading up to Obergefell (2015).
Justice Kennedy wrote both the Windsor and Obergefell opinions.
Both are 5-4 decisions.
Swing Vote discussion from More Perfect. (31:49-33:55).
Conservative: Voting Rights, Gun Rights, Class Action
Liberal: Eminent Domain, Environmental Protection, Gay Marriage
Windsor (2013)
Edith Windsor, seeking a refund of the federal taxes paid on the estate of her wife, Thea Spyer, who died in 2009.
$363,000
She didn’t get the same treatment as a man would have if he had sought the refund because of DOMA – Defense of Marriage Act.
Federal law from 1990s defining marriage as between a man and a woman for federal regulations.
Impacts over 1000 federal laws.
Married in Canada, New York recognized her as married.
Windsor (2013)
Held:
States have the authority to define marital relationships and DOMA goes against legislative and historical precedent by undermining that authority.
DOMA denies same-sex couples the rights that come from federal recognition of marriage.
The purpose and effect of DOMA is to impose a "disadvantage, a separate status, and so a stigma" on same-sex couples in violation of the Fifth Amendment's guarantee of Equal Protection.
Classification? Level of Scrutiny?
Obergefell (2015)
What Scalia warned everyone would happen …
4 states that had limits on same-sex marriage and legal ramifications – licensing and recognition of marriage from another jurisdiction.
Adoption, marriage, surviving spouse on death certificate
Petitioners filed these suits in United States District Courts in their home States. Each District Court ruled in their favor.
On appeal to Sixth Circuit, consolidated and reversed, holding that states have no constitutional obligation to license same-sex marriages or to recognize same-sex marriages performed out of State..
Kennedy’s opinion for the majority. Reversed lower court.
Dissents:
CJ Roberts, Scalia, Thomas, Alito.
Obergefell
14th Am Due Process Clause
Violated here because the right to marry is a fundamental liberties, and it applies to same-sex couples as it does to opposite-sex couples.
Marriage
Is inherent to the concept of individual autonomy,
Protects the most intimate association between two people,
Safeguards children and families by according legal recognition to building a home and raising children, and
Has historically been recognized as the keystone of social order.
14th Am Equal Protection Clause
Violated here because same-sex couples should not be denied a right protected for opposite-sex couples.
1st Am
Protects the rights of religious organizations to adhere to their principles, but it does not allow states to deny same-sex couples the right to marry on the same terms as those for opposite-sex couples.
Obergefell Dissents
1) CJ Roberts
Social policy and fairness are issues for legislatures.
This decision would allow for a fundamental right to plural marriage.
Concerned about sincere religious convictions that lead to opposition of gay marriage.
2) Scalia
Constitutional revision by an unelected committee of nine (actually 5).
Text and Framers’ Intent – no right to same-sex marriage.
3) Thomas
Liberty is freedom from govt action, not entitlement to govt benefits. Dignity is innate, it does not come from our govt.
DP Clause should not be used for substantive rights.
4) Alito
Constitution is not applicable here. Leave marriage questions to the states.
Not a Fundamental Right – not “deeply rooted in this Nation’s history and tradition.” Citing Glucksberg.
Marriage
Loving v. Virginia (1967) (state law criminalizing interracial marriages invalidated)
Boddie v. Connecticut (1971) (state law with no exception or waiver for indigency for divorce filing fees invalidated)
Zablocki v. Redhall (1978) (state law requiring proof of child support payments invalidated)
Califano v. Jobst (1977) (Fed Soc Sec provision treating upheld)
Bowen v. Owens (1986) (Fed Soc Sec provision treating divorced widowed spouses differently from widowed spouses upheld)
Lawrence v. Texas (2003) (state law criminalizing sodomy invalidated)
Hollingsworth v. Perry (2013) (standing issue – let lower court’s invalidation of Prop 8 remain)
Windsor (2015) (Fed DOMA provision that defined marriage as between one man and one woman invalidated)
Obergefell (2015) (state laws failing to provide for or recognize same-sex marriages invalidated)
Equal Protection and Fundamental Rights
Equal Protection:
Is the classification already a suspect or a quasi-suspect class according to SCOTUS?
Yes, suspect – race or national origin = Strict Scrutiny
Yes, quasi-suspect – gender, legitimacy (may sexual orientation?) = Intermediate Scrutiny
No, but I could argue that it should be
Compare to the groups protected above:
Discrete and Insular Minority, Immutable Characteristics, Prone to stigmatizing stereotypes, History of discrimination and political powerlessness.
No = Rational Basis Review (age, income, mental disabilities)
Still ask if there is a discriminatory purpose, can still consider over/under inclusivity (but not too carefully), Is the statute rationally related to a legitimate gov interest? (It can’t be arbitrary.)
Equal Protection and Fundamental Rights
Fundamental Rights:
Is the liberty at issue already deemed a Fundamental Right?
Yes = Strict Scrutiny
Privacy, Travel, Voting, Marriage, Procreation
No, but it should be …
Argue why by comparing to those things that are and using the same standards. Look at its history and search for a tradition of protection of the right.
Is it implicit in the concept of ordered liberty?
Is it deeply rooted in the Nation’s history and traditions?
No = Rational Basis
Rational Basis Review
Does the Law have a Legitimate Purpose?
Romer v. Evans
Actual Purpose Required or Conceivable Purpose Sufficient?
Cases where Laws are Deemed Arbitrary and Unreasonable
US Department of Agriculture v. Moreno
Cleburne
Types of Discrimination: Only Rational Basis Review
Age Classifications - Massachusetts Board of Retirement v. Murgia
Discrimination Based on Disability
Wealth Discrimination
Sexual Orientation Discrimination (?)
Intermediate Review: Gender Classifications
Early Cases Approving Gender Disc
Emergence of Intermediate Scrutiny
Frontiero v. Richardson
Craig v. Boren
US v. Virginia
Gender Classifications based on Roles or Stereotypes - Rostker v. Goldberg
Gender Classifications Benefiting Women as a Remedy (Affirmative Action) - Califano v. Webster
Strict Scrutiny: Classifications Based on Race
Race Discrimination and Slavery before the 13th and 14th Amendments - Dred Scot v. Sandford
The Post-Civil War Amendments
Strict Scrutiny for Discrimination based on Race and National Origin
Proving the Existence of a Race or National Origin Classification
Facial Classifications
Race-Specific Classifications that Disadvantage Racial Minorities - Korematsu v. US
Racial Classifications burdening both whites and minorities - Loving v. Virginia, Palmore v. Sidoti
Laws Requiring Separation of the Races - Plessy v. Ferguson
Initial Attack on “Separate but Equal”
Brown v. Board of Education
The Invalidation of Segregation in Other Contexts
Facially Neutral, Discriminatory Impact - McCleskey v. Kemp, City of Mobile
Racial Classifications Benefiting Minorities – Affirmative Action
Emergence of SS as the Test - Richmond v. J.A. Croson Co.
Fisher v. Univ. of Texas at Austin
Fundamental Rights
Fundamental Rights:
Is the liberty at issue already deemed a Fundamental Right?
Yes = Strict Scrutiny
Privacy, Travel, Voting, Marriage, Procreation
No, but it should be …
Argue why by comparing to those things that are and using the same standards. Look at its history and search for a tradition of protection of the right.
Is it implicit in the concept of ordered liberty?
Is it deeply rooted in the Nation’s history and traditions?
No = Rational Basis
Interpretive Limits: How should the Constitution be interpreted?
There is no agreement among Justices or Scholars.
Narrowly Circumscribed Discretion vs. Substantial Discretion for the Court
Narrowly Circumscribed = Limit judicial power because democracy means rule by electorally accountable officials.
Originalism, Textualists, Framers’ Specific Intent, Framers’ Abstract Intent (Scalia).
Substantial = Allow for evolution of the Text
Spectrum
