Next Wednesday's Class

For next Wednesday's class, take a look at examples 1 and 4 on blog post "Zorach Questions and Hypos" and try to apply the Lemon test to these problems.

Do they have a secular purpose? If their purpose is to protect religious liberty, is that a religious purpose or a secular purpose? Is religious liberty the same thing as religion?

Who is harmed by these efforts to accommodate religious students who are required to attend public school?

Then we will move on to the school prayer cases.

Class Cancelled Friday January 17

I am cancelling class today. We will be having a double session in a few weeks when we listen to the Rosenberger oral argument together and then discuss the case (see Assignment 7). That will be our make-up session.

Be safe and have a great MLK weekend!

Casebook--Pages For First Two Assignmemts Available

I understand that the Book Store doesn't yet have our casebook for some reason.

I copied the first two assignments. You can find them in the handout rack outside the Southside Faculty suite on the second floor of the law library.

Arlene's Flowers at SCOTUS

Here is a link to SCOTUSblog's coverage of this case: Link

This is a 1A cert petition many are watching closely

Wallace v. Jaffree and a Moment of Silence

Whose liberty is deprived by a law that allows each student a "period of silence 'for meditation or voluntary prayer?'"


No one was required to pray and each student was free to think or reflect on any subject or none at all. Each student was free to pray, or meditate, or reflect on his Little League batting average, or worry about whether the Social Security system would remain solvent for her generation of future retirees. 

So how does this harmless law violate the incorporated Establishment Clause?

Was the legislature's purpose somehow unconstitutional? Was the pupose to advance religion or to advance religious liberty by clearing up "a widespread misunderstanding that a schoolchild is legally prohibited from engaging in silent, individual prayer once he steps inside a public school building."

How do we know what was the legislature's purpose? Are the views of one legislator controlling?

I conclude in my article that this decision by the Court amounts to a judicially-imposed heckler's veto, one that allows one group of citizens (the offended observers) the power to deny another group of citizens  a brief opportunity to engage in silent prayer. 

Am I wrong? Or am I right?

Please prepare to take both sides of this issue for class discussion.

Con Law II Students Spring 2020

Welcome to Con Law II. I don't use Canvas to communicate with my students. I prefer to use this blog. Please check the blog often for information about the course and for the many substantive issues I post here.

The assignment for our first class is to prepare assignment #1 on the syllabus below. See you next week!

By the way, that picture above is from a famous Free Speech case that we will study later this semester.

The Impossibility of Objectively Applying the Endorsement Test

Consider Prof. McConnell's position:

 First the very “goal” of the endorsement test, according to Justice O’Connor, is to identify a principle that is “'not only grounded in the history and language of the first amendment, but one that is also capable of consistent application to the relevant problems.'” Yet this goal of consistency is the test’s greatest failing. There is no generally-accepted conception of what “endorsement” is, and there cannot be. Whether a particular governmental action appears to endorse or disapprove religion depends on the presuppositions of the observer, and there is no “neutral” position, outside the culture, from which to make this assessment. The bare concept of “endorsement” therefore provides no guidance to legislatures or lower courts about what is an establishment of religion. It is nothing more than an application to the Religion Clauses of the principle: “I know it when I see it.”

For example, does a Nativity display in a public park “endorse” the Christian belief in Jesus? Or does it merely recognize that one part of the community is celebrating a religious holiday? Or does excluding religious displays and memorials from public parks open to all sorts of secular displays and memorials send a message of disapproval of religion?

Telescope Media Oral Argument

Link

Scalia Interview September 2010

Link


Backup

Exam Review Session--Monday December 3

Monday December 3 @ 1:30 PM
in the Courtroom

Next Week--Nov. 26 & 27

For Mon November 26 we will focus primarily on the following cases and pages:

--Washington v. Davis  p. 756-767
--Kahn v. Shevin  p. 777-781
--Hogan p. 782-786

For Tuesday November 27 we will focus primarily on the following cases and pages:

--Grutter v. Bollinger and Gratz v. Bollinger (read only p. 807-822)

Equal Laws, Not Equal Results

In Feeney, the Court said "the Fourteenth Amendment guarantees equal laws, not equal results." (p. 765)

In other words, equal protection scrutiny is triggered only by intentional or purposeful discrimination on the basis of race or gender, not by neutral laws that result in disproportionate impact. Suppose, for example, data showed that the federal income tax imposes a greater burden on some races than on other races. Or that federal welfare laws disproportionately provide benefits to some races rather than others. Are these laws presumptively unconstitutional and subject to strict scrutiny?  

Feeney says the EPC is triggered only if the plaintiff can demonstrate that the law was enacted "at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." (p. 766) Thus, veterans' preferences for civil service jobs do not trigger gender-based-equal-protection scrutiny, because they are enacted to repay veterans for the sacrifices they have made for their country, not because they disproportionately benefit men over women. Do you agree with Feeney? Why or why not?

Racial Affirmative Action Preferences

Here, I think, is the nub of the debate--one side reasonably believes that the only way to get "beyond race" is to take race into account for a period of time (a generation or two or three); and the other side reasonably believes that the only way to get "beyond race" is to stop using race as a factor in distributing governmental burdens and benefits. There are benefits and costs to both approaches, and perhaps we don't agree on how to weigh the costs and benefits.

Railway Express case: Ms and Ts

Let's practice our Ms and Ts on the Railway Express case on page 641.

Ends =M (mischief): Advertisements on trucks "constitutes a distraction to...drivers and pedestrians"

Means=T (trait or classification drawn): the law prohibited trucks from advertising the products of third persons but not products sold by the owner of the truck

In other words, advertising on A's trucks saying "buy B's widgets" was banned, but A's trucks could contain ads saying "buy My widgets."

Try to draw your M and T diagrams for this scenario.

Ms and Ts

Lets focus on a governmental program intended to provide subsidized housing for economically needy people. The idea is to help only those who need help, so a line will have to be drawn somewhere to decide who gets housing benefits and who does not get housing benefits.

M (Ends or purpose of the law)--To help house needy citizens afford habitable housing

T(Means: the classification made by the law)--To draw a line based upon income (people on one side of the line get benefits, people on the other side of the line do not get benefits)

Obergerfell and the Great Debate

As I said  in class, I want you to read Obergefell not so much for its doctrine concerning same-sex marriage, but rather as the most recent boiling point in the Great Debate between original understanding originalism and the Living Constitution.

Please read the dissenting opinions as carefully as you read the majority opinion, because the dissenting opinions are almost completely focused on the role of the Court in applying vs. making constitutional law.

I will ask a goodly number of you to share your views on Obergefell and whether it is a legitimate judicial application of the Written Constitution.

I want everyone to think through his or her views of whether the definition of marriage is committed by the Written Constitution to the federal judiciary or to democratic self-government by we the people in the several states.

What would have happened with respect to the same-sex marriage issue if the Court had said under the 10th Amendment the states--not the Court-- have the power to define marriage?

Our Focus This Week

Today (Monday Nov 12) we will focus on Roe, Casey and the abortion liberty.

Tomorrow will will focus primarily on Obergefell (SSM case) and I will spend the last half of class introducing you to Equal Protection.

There is no Handout 3

I thought I had deleted Handout 3 from the syllabus. I have now.

There is no handout 3 for you to worry about.

Who is Jane Roe? Who is Mary Doe?

When reading Roe v. Wade, take a look at page 271 of the Paulsen book. The authors give you a short biography of Jane Roe (Norma McCorvey) and her incredible journey from pro-abortion activist to pro-life activist.

The Paulsen book does a nice job discussing Roe v. Wade on pages 270 to 278.

Mary Doe (Sandra Cano), the Plaintiff in Doe v. Bolton, decided not to have an abortion "once she felt her baby kick." She communicated this to her lawyer, but since her case was a class action her lawyer went ahead with the case anyway. See Clark Forsythe's book, Abuse of Discretion at p. 94.

Link to Kermit Gosnell Grand Jury report

I am not assigning it, but I wanted to make sure you have a link to the Gosnell Grand Jury Report (cited in my article). It is sad but fascinating reading about late-term abortions in post-Roe America.

Gosnell Grand Jury Report