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Wednesday
Dec062017

Constitutional Stuff

EXAM #1

Scenario 1:

Although Ed is correct that he does have a right to contract, that right is unlikely going to make the new minimum wage law unconstitutional. In Lochner, the Supreme Court found that the right to contract is protected by substantive due process and struck down a law limiting bakers' right to contract their labor for 10 hours/day or 60 hours/week, since the law limited their liberty under the due process clause of the 14th amendment. The Court did not use any explicit language indicating heightened scrutiny because scrutiny levels were not as generally applied and understood at the time as they are now, but the analysis done in that case would likely be similar to some heightened level of scrutiny above rational basis review. Since Lochner, however, the Court has moved away from such heightened protection for economic/contract rights under due process and changed its analysis on such issues.

For decades now, as in Lee Optical, the Court has applied very deferential rational basis review of laws that only implicate economic rights or rights such as the freedom to contract. Privacy rights and individual rights that do not impact commerce are much more likely to be termed "fundamental" and protected with heightened scrutiny, while laws that only impact the world of commerce such as minimum wage legislation are subjected to rational basis level scrutiny, meaning that if there is any conceivable rational basis for the law and some reasonable relationship between the law and that rational basis, the law should be upheld because the Court refuses to strike down laws purely out of judgment of the legislature's policy choices. Here, even though the law will likely cause hardship to Ed and his employees, as well as many others whose freedom to contract is being implicated, the Due Process Clause is unlikely to help them. Ed could argue that there is no rational basis for the law, but the state can say that regulation of labor and ensuring all employees make a living wage are rational bases for the law. Raising the minimum wage seems reasonably related to those bases, so the law should be upheld. Although Lochner found that there is no rational basis for labor laws, things are very different now and regulating labor and commerce will almost certainly be upheld, despite some in the conservative legal movement wishing to return to the days of Lochner (no one like that is currently on the Supreme Court).

Scenario 2:

If the organization wants to challenge this law for disproportionate effects on the black population, it could challenge the law under the 14th Amendment's Equal Protection Clause. To make a successful Equal Protection claim, it would have to show that the law unfairly favors one group over another, thus denying equal protection of the laws to the disfavored group, in this case colored people. Because race is a protected class, as has been determined time and again by the Supreme Court under Brown, Loving, Bakke, and a plethora of other cases, if the organization can show either facial or purposeful discrimination, the law will be subjected to strict scrutiny, requiring that it further a compelling state

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interest, be narrowly tailored to that interest, and be the least restrictive means to that end. However, the Court in Washington v Davis found that a law with disproportionately discriminatory effects against the black population (in that case a test for becoming a DC police officer) is not enough to trigger heightened scrutiny under the 14th amendment. Instead, to trigger heightened scrutiny the law must either be facially discriminatory or have a discriminatory purpose, like the law in Yick Wo, where, although the law was facially neutral, it was applied exclusively to Chinese laundromats - the effects of the law were so disproportionate that the Court was able to infer a discriminatory purpose and applied heightened scrutiny.

Here, it is clear that the law does in fact have a disproportionate impact on the black population - they are only 10% of the populace but 25% of those negatively impacted by the law. The organization could argue that these impacts are so extreme that they imply a discriminatory purpose on the behalf of the legislature and, since race is an inherently suspect class, strict scrutiny should be imposed upon the law. This argument will almost certainly fail, however, since the state will respond that 75% of those impacted by the regulation are still white - though the law may have disproportionate impacts, it is far more similar to Washington than to Yick Wo because the law is not being exclusively applied as against the group, it is being applied against everyone equally and just happens to affect one race more than the other. The organization could try to distinguish Washington because in that case the police force put forth independent evidence that it was trying to recruit African American police through alternative means, indicating that it had no discriminatory purpose in its test, a factor that there si no equivalent of here, but that argument too will likely fail because the Court's central reasoning in Washington was based far more on the fact that disproportionate impacts are not enough for heightened scrutiny absent a showing of discriminatory purpose.

Since there is no discriminatory purpose, the Court will impose only rational basis review of the law - it will determine if some conceivable rational basis for it exists and determine whether the law has a reasonable relationship to that basis. Here, the state can use the same rational basis it argued for under scenario 1 since this is the same law - it wants to ensure a living wage and prevent exploitation of minimum wage workers, an end to which the law is certainly reasonably related.

Scenario 3:

The disproportionate enforcement indicated by the numbers in this scenario is significantly more substantial than the disproportionate numbers in scenario 2. Here, a substantial majority of the black- owned businesses are being enforced against, whereas the vast majority of white businesses receive only warnings. This type of discriminatory enforcement looks far more similar to Yick Wo than scenario 2, where the impacts appeared disproportional but the intent of the law still looked like it was probably neutral and intended only to further the state interest of labor and helping minimum-wage earners. When the State enforces almost exclusively against a particular group, as it did in Yick Wo, the Court may find that the severely disproportional impacts of the law indicate that the law has a discriminatory purpose, in which case it may apply heightened scrutiny if the group being discriminated against is a protected class. Here, the group is being discriminated against on the basis of race, a protected class of the highest order, which will trigger strict scrutiny under the Equal Protection Clause.

Strict scrutiny, under this law, would examine whether there is a compelling state interest for the law, whether the law is narrowly tailored to that interest, and whether the law is the least restrictive means to that interest. Here, the state will argue that it has a compelling state interest in enhancing the welfare of low income earners. This may very well amount to a compelling government interest, however, if the state is unable to show how its interest compels the grossly discriminatory enforcement of the law, it will probably be unable to pass strict scrutiny. If the state actually wanted to protect all low income earners, it would enforce the law equally against all businesses rather than primarily against minorities. Since it is enforcing so discriminatorially, it would need to further show some interest in the way the law has been applied, which it will likely be unable to do unless it can demonstrate some compelling distinction between the businesses that were enforced against and those that weren't. The race of the business owner

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will absolutely not qualify as a compelling interest for this, since the Court has found that animus against a particular group does not even pass as a rational basis for law, much less a compelling state interest. If it can show that the enforced against businesses were guilty of particularly egregious violations of the law and there was some race-independent reason that those businesses were fined, it is possible it could demonstrate that the law did not have any discriminatory purpose, in which case it could lower the scrutiny level back down to rational basis for mere disproportionate effects, in which case it would pass muster under rational basis review (see scenario 2).

Scenario 4:

Hookah Hookup will argue that its right to free speech is being suppressed by the State's new advertising laws. While it could argue that it's billboards and advertising are "true speech" and that the regulation is thus subject to strict scrutiny for its restrictions on this speech, it will likely have to settle for the review of commercial speech, as that is how the Court has always treated regulations on advertising commercial products. The test for whether a regulation of commercial speech is constitutional comes from Central Hudson Gas - it is: 1) Is the commercial speech false or misleading or does it advertise an illegal product; 2) is there a substantial state interest; 3) does the law directly advance the state interest; and 4) is the law no more speech restrictive than necessary for the state interest.

On the first prong, whether the speech is false/misleading or advertises an illegal product, the state could make several arguments. It could argue, first, that Hookah Hookup's advertisement is misleading because it implies that hookahs will make you have a good time or increase the likelihood that you will "hook up" with someone and that it therefore is misleading and fails the first prong. Since the state can freely regulate any and all false or misleading advertisements with no scrutiny by the court required, this would end the analysis. This argument will almost definitely fail, however, because, firstly, the law does not regulate anything about the misleading aspects of the advertisement. Instead, it requires the advertisement to be black and white and text-only - Hookah Hookup could still imply whatever it wants under the new law, so an argument by the state that it is these implications it wants to outlaw would be disingenuous. Additionally, advertisements often imply good things about their product without qualifying as false or misleading without sacrificing the protections of the First Amendment.

The State could further argue that the advertisement is advertising illegal conduct by trying to attract underage smokers, since smoking is illegal for people under 18. This argument will fail as well. Though smoking is illegal for youths, the state regulation has nothing to do with specifically preventing advertising targeted at youths - it just prohibits color and pictures. Additionally, hookah in general is legal conduct so the advertisement does not advertise anything illegal; Lorillard Tobacco, a case about tobacco company advertising, stands for, among other things, the proposition that whether a particular product is widely considered a "vice" does not increase the state's right to regulate advertising of it - if the state doesn't like it, it can regulate the underlying conduct rather than the First Amendment protected speech of advertising it.

Since the advertisement is not false/misleading and does not advertise illegal conduct, the state will need to show a substantial interest in regulating this speech. It has advanced the interest of protecting underage youths from becoming smokers, since studies have shown that teenagers below the legal age are more likely to be attracted to advertisements with images and color. As the Court found in Lorillard Tobacco, preventing kids from smoking is a substantial state interest, so the next issue will be:

Whether the law directly adances the state interest. Whether the law passes this prong or not will likely depend on the weight of the state's evidence that teens are more attracted to ads with color and images. The Court in Lorillard Tobacco, for example, found that keeping tobacco advertisements a certain distance from schools directly advanced the interest of protecting teens, but requiring that advertisements in convenience stores be a minimun height off the ground did not, since kids can always just look up. Here, if there is strong evidence that kids respond more to advertisements with color and images, it is likely the regulation will be more similar to billboards near schools issue, because having kids respond

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less to hookah advertisements will directly advance the interest of having less kids smoke.

The prong that commercial speech regulations are most likely to fail and be struck down is the fourth: whether the regulation is no more speech restrictive than necessary. One underlying problem for all commercial speech regulations on this prong is that the government absolutely has the police power to regulate the underlying product - it could ban hookahs altogether and in fact already has made them illegal for teenager use, both laws that advance the state interest of preventing kids from smoking hookah much more strongly than an advertising regulation that prohibits color and images, regardless of what the state's evidence shows. Hookah Hookup will further be able to show that ads like the one on the example billboard appeal greatly not just to teenagers, but young people that want to come have fun - without images and color, it will be much more difficult for Hookah Hookup to attract fun-loving twenty- somethings to come have a "good time." It will argue that if prohibiting tobacco advertising near schools and visible from the street was unconstitutional, as it was determined to be under this prong in Lorillard Tobacco, despite the fact that those regulations clearly help prevent kids from seeing them, it will certainly be unconstitutional to prevent generaly public ads unrelated to schools just because the ads tend to appeal to teenagers. Since the state could regulate the underlying conduct rather the protected speech, the regulation will likely fail this prong and the law will be deemed unconstitutional.

Several Justices of the Supreme Court have wanted to scrap the distinction between commercial and other types of speech and apply strict scrutiny in these types of cases due to the difficulty in determining what speech qualifies as "commercial," but this opinion has yet to reach a majority of the Court.

Scenario 5:

This regulation of commercial speech goes directly to the first prong of the Central Hudson Gas test: false/misleading advertisements. If a particular type of advertisement is false or misleading, it is definitely fine for the state to regulate it without any special scrutiny from the court of any kind. Since, on its face, the regulation challenged here targes only false or misleading commercil speech (advertisements that indicate that hookah is safer than other tobacco) the law is definitely constitutional on its face. The issue then becomes, whether the law is constitutional as-applied to the specific billboard that Hookah Hookup posted, which declares hookah to be "the smart choice." When making an as-applied challenge, the Court looks not to whether the regulation is generally unconstitutional, but to whether application of the generally constiuttional law will violate the constituional rights of this particular challenger. This at least, would be the analysis for the "safer" prong of the law. With regard to "more advantageous," whether this part of the law would be facially constitutional depends on the definition of that term under the law - if it too prohibits only false or misleading advertising, that would be enough to make it facially constitutional.

In its as-applied challenge, Hookah Hookup would have to show either that the state has no substantial interest in prohibiting its specific advertisement, that prohbiting its advertisement fails to directly advance that interest, or that the law is more restrictive than necessary to achieve that interest. The State absolutely has a substantial interest in preventing false or misleading advertising, which is why the first prong of the Central Hudson test exists, so the primary issue will be whether restricting Hookah Hookup's billbaord will directly advance that interest and whether the restricing the billboard is no more restrictive than necessary. As to whether it directly advances the interest, the fact that a reasonable jury could find that the billbord violates the law indicates that it is reasonable to think the billboard is false or misleading. This should be enough to find that prosecuting Hookah Hookup for its ad directly advances the interest in prohibiting false or misleading advertising. As to whether it is no more restrictive than necessary, Hokah Hookup can no longer argue that restricting the underlying conduct would better serve the interest, since preventing false and misleading advertising is a different state interest than protecting youths from hookah. Here, it would have to argue that a regulation preventing intentionally false statements would be sufficient to serve the state interest, rather than statements that simply imply that hookah smoking is safer or more advantageous. The issue would then become whether the state can prohibit it's mere implication in addition to intentionally false statements. If a jury could find that the statements violate the law, that likely indicates that they could be found false or misleading, in which case the state could likely prevent

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this advertisement.

Scenario 6:

First (prior to considering any of the alternative scenarios), Jill may make an argument that this regulation burdens her Free Exercise of Religion under the First Amendment and thus should be subject to heightened scrutiny, since it burden an enumerated right. Jill would be wrong, however, because of Employment Division v. Smith, where the Supreme Court held that the Free Exercise clause only imposes heightened scrutiny on regulations that facially discriminate or have the purpose of discriminating against a particular religion. Here, where the law is neither facially nor purposefully discriminating against worshipers of the goddes of love but instead is a generally applicable law that happens to burden Jill's free exercise of religion, the law is subjected to no scrutiny under this clause and Jill will receive zero protection.

Jill could next argue that burdening her capacity to adopt is a burden on an unenumerated fundamental right. The Due Process Clause of the 14th Amendment gives rise to a number of unenumerated rights that are some combination of deeply rooted in our nation's traditions and implicit in the concept of ordered liberty. Among these rights are such things as a right to contraception, marriage, directing the upbringing of children, and freely choosing one's intimate sexual or life partners. Implication of any of these fundamental rights will subject a law to strict scrutiny. Unlike the right to direct the upbringing of one's own children, however, Jill wants to adopt a child - which is a process that has traditionally had various requirements and state-mandated rules tied to it, indicating that there is no fundamental right to adopt that is deeply rooted in our nation's history. If Jill is further capable of having her own child, she is capable of bringing a child up and the right to specifically adopt someone else's child is unlikely to be found implicit in the concept of ordered liberty (though it's hard to say because that can mean literally anything).

However, Jill can argue that she has a fundamental right to engage in her polyamorous cohabitation and that it is unconstiutional for the state to burden exercise of her fundamental right by denying her access to rights that other people get - essentially conditioning her capacity to adopt on her not exercising her fundamental right to choose her intimate sexual partners. To argue she has a fundamental right in this way, Jill would frame the right as a general right to choose her own intimate partners and whom she will build a life with, much like the right recognized in Lawrence v. Texas. The State would attempt to contest that framing by making it more specifically about the right to engage in polyamorous cohabitation, similar to how the Bowers v. Hardwick Court framed the issue specifically as the right to engage in sodomy. If the Court takes Jill's framing, as it may be more likely to do insofar as Lawrence overruled Bowers, it will likely find that the right is implicit in the same sort of privacy as Lawrence, even if specific polyamorous lifestyle rights are not deeply rooted in traditions - the right generally choose one's intimate partners is implicit in the concept of ordered liberty. The State can respond by citing the old Free Exercise case against members of the Church of Latter Day Saints from over a hundred years ago, demonstrating that there is no deeply rooted right to polyamorous relationships. Ultimately, due to the way the Court has treated privacy rights and rights to choose intimate partners, it is likely to find a right here.

Once the Court finds a right, the next issue will be whether the State can condition adoption on whether or not a person exercises that fundamental right. Generally, it is unconstitutional for the state to do this, so if Jill has a fundamental right to polyamorous lifestyle, the law will be struck down.

If her substantive due process argument fails, Jill can attempt an equal protection argument - the law discriminates against polyamorous people, and indeed all unmarried people, by making a classification about marriage and conditioning adoption on that classification. Jill will argue that people not in traditional 2-person marriages are a protected class and try to apply the factors of Cleburne to show that laws distinguishing that class are subject to heightened scrutiny. Those 4 factors are: 1) whether the class has as history of discrimination; 2) whether the inherent attributes of the class impact its members' capacity to contribute to society; 3) whether he attribute of the class is immutable; and 4) whether the

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class has political power. Jill will argue that polyamorous people have been discriminated against for time immemorial and can point to the mormon case as an example of this, that it has no impact on capacity to contribute to society, since she can raise a child/work just as well as anyone else, is immutable since it is just how she is and was born (though she will likely need evidence that polyamory is immutable from some scientific source), and that her class has been systematically denied political power - which is why it needs protection. The State will counter that there is no history of discrimination against unmarried people (though it will have to concede that the states have always given benefits to married people), that it does impact ability to contribute to society, since it implicates a unique family dynamic that may make traditional household styles more complicated - one member can't just work while another stays home; instead there are more mouths to feed, though this argument is likely to fail. It will also argue that the characteristic is not immutable and Jill could be monogamous if she so chose (again, scientific evidence on this would be helpful) and that her class has many political organizations that speak for it, giving it political power. Since history of discrimination and impact on ability to contribute to society are considered the two most important factors, Jill could potentially get a heightened scrutiny level here - however, the State could also argue that it is not discriminating based on type of person but on conduct - the law does not target polyamorous people but those that cohabitate with multiple sexual partners. Based on the Court's reaction to these sorts of arguments in the homosexuality context (Lawrence, Obergefell), it is unlikely to accept them here.

The law will then likely be subjected to some intermediate scrutiny level, since the factors do not weigh nearly as strongly as race, which gets strict scrutiny, and possibly not even as strongly as gender, which gets intermediate scrutiny. The state will have to show that the law serves an important state interest and that the law is substantially related to that interest - which it could do by pointing to the state interest of imbuing moral values into youths. This state interest would likely fail, as morals legislation, especially when it comes to animus against a particular group, like polyamorous people as a class, are not even a rational basis for law, much less an important state interest. The state could also claim that its important state interest is that multiple people in one household do not take advantage of some kind of tax-related advantage by getting to all claim benefits for having a kid in their household, which could potentially qualify as a substantial state interest. The law would likely not be substantially related enough to that interest, however - it would be underinclusive because Jill could still have her own child and get the same benefits for the household. For this reason, the law would likely be struck down.

If the state had a process for making "good cause" exceptions, and made secular-based exemptions but denied Jill's religious-based exemption, this would potentially strengthen her religious Free Exercise argument. While the Court in EMployement Division v. Smith upheld generally applicable laws as universally constitutional under Free Exercise, it did carve out several exceptions - one of which distinguished Sherbert on the grounds that that case was about denying government benefits on a discretionary basis on religious grounds; an exception that is impliated by having a system for exemptions that does not allow religious ones. Whether or not the "good cause" program is constitutional will likely depend on how discretionary grants of excemptions to the program are. If it is left to one particular executive with unfettered discretion, it will almost certainly be unconstiuttional because that individual is free to grant exemptions for secular but not religious reasons. If the system has a much more rigid and consistent policy for determining who gets exemptions, that could simply be another generally applicable rule that happens to burden Jill's religion and she will not get any exemption. Whether the exception from Smith applies to any law with any secular exemptions is a hotly debated issue, since nearly all laws have some manner of exemptions in them somewhere and applying that loosely could make the exception swallow the Smith rule. It is more likely that, if the system is generally applicalbe, consistent, and neutral, Jill will be unable to get a religious exemption under the Free Excercise Clause. If New Oregon has a RFRA-like statute she will be much better off trying under that, since the federal RFRA is unconsitutional to apply to state laws under City of Boerne.

Scenario 7:

This case implicates the previous ISKCON case where the group was attempting to solicit and leaflet in an 6

 

airport. The first issue to resolve, however, is whether the parking lot outside the stadium is like the airport in that case, a non-public forum, or is more akin to a designated public forum, as ISKCON argues. The primary reason that the court found the airport was a non-public forum rather than a traditional public forum was that there was no "tradition" of airports as public forums, since they did not exist at the time of the framing of the constitution - additionally, the primary purpose of the airport is for air travel, as opposed to the free exchange of ideas, like other public forums (because apparently the purpose of the street isn't for car travel or it's more traditional or something). Although cars also did not exist at the time of the framing, something more similar to parking lots than to airports likely did exist - there were still areas to leave horse carriages and presumably some manner of events similar to modern football games that attracted crowds of people where areas to park horses would be required. If there is some historical analogue, that increases the likelihood that the parking area will be considered a designated, rather than non-public forum. Although the state argues that the principle purpose of the parking lot is for parking, as opposed to exchange of ideas, the alternative use of the lot for tailgating implies that some exchange of ideas is intended - people are likely to discuss the upcoming game, the team, and various other aspects of life, making the parking lot more of a festival where speech should be allowed as a designated public forum. The changes on the Court since ISKCON are also likely to make the Court find that the parking lot is a designated public forum, becuase the Roberts court is far more protective of speech than the Rehnquist Court as, and changes in justices, such as O'Connor leaving, would likely make at least the 4 liberal justices (Justices Ginsberg, Breyer, Sotomayor, Kagan) and likely either Justice Kennedy or Justice Roberts would find it is a designated public forum, in part because it was weird and silly to say airports are non-public forums to begin with.

With regard to the leafleting ban, even if the Court finds that this is a non-public forum, this ban will likely be struck down as unreasonable under the rules governing speech regulation in non-public forums: whether it is reasonable and viewpoint neutral. Though a ban on all leafleting is viewpoint neutral, since it does not target a specific subject matter, the ban will be unreasonable because the ban on leafleting in ISKCON was also unreasonable - even in a non-public forum such as an airport it does not hamper the primary purpose of air travel to allow someone to distribute leaflets and it would not hamper the primary purpose of parking to have someone distribute leaflets any further than that. The state would likely argue that having people roam the parking lot, going from tailgate to tailgate, is more disturbing than hanging out in one spot at an airport where people will walk by, but this still does not impact the primary purpose of parking. If, as th Court is likely to do, it finds the parking lot to be a designated public forum, the rules change and the leafleting is even more likely to be protected speech. Then, the government may regulate speech, but it must follow the rules from Heffron: 1) it must be content-neutral; 2) there must be a substanial government interest; and 3) there must be alterantive channels for the speech. Courts since Heffron have additionally found that the regulation must somehow serve the government interest as well and done a certain degree of tailoring analysis. In this case, the ban is content-neutral as it applies to all leafleting equally - as the forum is designated and not traditional, the government could limit all parking lot talk to one particular subject so long as it does not discriminate on the viewpoints of that topic (such as only discuss football) but it is unlikely to do so and the facts do not indicate this. The substantial government interest could be not disturbing the sporting event or the crowd or potentially keeping the peace, as tailgaters tend to be rowdy and too much leafleting could lead to a confrontation with shouting, ridicule, or violence, but due to Feiner and Brandenburg, heckler's of a message may not shut down the speaker and it is the state's role to protect the speaker from them. There also must be alternative channels for the speech, which the state will argue is any sidewalk/park/traditional public forum where ISCKON can leaflet, but it will argue it is unable to reach as packed a crowd anywhere else during the game. Ultimately, the court will likely strike the ban regardless of whether itis a non or designated public forum.

WIth regard to the solicitation ban, this ban was upheld in ISKCON because asking for money is more disruptive of the forum of air travel than than just handing out literature. Spreading ideas falls under the core protection of the first amendment, as opposed to requesting money. If the forum is non-public, which it is unlikely to be, this ban will likely still be reasonable, despite the changes on the Court, due to ISKCON being directly on point - the changes on the Court are more likely to manifest themselves in deciding this is a designated public forum, as opposed to non-public. If it is a designated public forum, the

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court will do the same analysis discssed above with regard to leafleting and likely come out the same way.

Scenario 8:

The Court found in Roe v. Wade that there s a fundamental right to abortion arising out of the right to contraception recognized in Griswold and Eisenstadt arising from the privacy rights of the Constitution. In Casey, the Court found that the test for whether a particular regulation burdening that fundamental right is not strict scrutiny, but whether the regulation imposes an "undue burden" on a woman's right to abortion before the substantial government interest in the life of the fetus comes into play at viability, after which the state may completely ban abortion if it so chooses. Prior to that, any regulation inhibiting the woman's right to abortion must pass this undue burden test, requring thta it not put a "substantial obstacle" in the path of a woman seeking an abortion. In Casey itself, the Court addressed a law requiring 24-hour informed consent before getting an abortion and found that that law did not qualify as an undue burden, in part because the court did not look specifically to those women most affected by the law even though that is exactly what it did in the context of the regulation requiring spousal notication prior to getting an abortion. This law is more burdensome than the law in Casey, however - it has a double 24- hour waiting period requirement. The reason the law in Casey was found not to be an undue burden was in part because abortion is such a major choice - it implicates the decision whether to beget a child and change one's life, and the Court found it reasonable to require a woman thinking of getting an abortion to be informed about the consequences of her choice and the implications of abortion and then think for 24 hours. With regard to this New Oregon law, it may be difficult for the state to justify the second meeting with another 24 hour wait period before procedure itself as not being an undue burden. Many women have to drive very long distances to their nearest abortion clinic, and, although requiring a 24 hour wait is constitutional, it may not be so here.

An important consideration that the SUpreme Court has not yet decided but recently granted cert on, is whether the Court should take into account the importance of the state's interest when evaluating the undue burden. If it does condier the state's interest here, the interest in requiring an additional 24 hours simply between getting information, asking questions, and the procedure, is likely to have minimal state value. If it does not evaluate the state's interest, and instead, looks purely at the extent of the burden on the woman, it may be more difficult to strike the law down because a 24 hour wait period is consitutitonal and wheter another 24 hours is acceptable just creates a difficult line-drawing problem of how long is too long. If the statute does not contain any health/life of mother exceptions, a woman with a severe health or life consideration could also probably bring an as-applied challenge if she is prevented from getting an abortion immediately by the law, as discussed in Gonzalez.

Short Essay 1:

If the city wants to require the Boy Scouts to allow a girl that it wants to exclude, this implicates the organizations right to freedom of expressive association, a right implied by the enumerated freedom of speech in the First AMendment. Since the Boy Scouts have a right to form a group with whomever they want, this implies a right to exclude anyone from that group on any basis. Regulations that impact a group's right to expressive associaiton trigger strict scrutiny, as per Jaycees and Boy Scouts of AMerica v Dale.

The City will argue that, although the Boy Scouts are at it again, this case is more like Jaycees. For one, that case was about sex discrimination as this one is, so in that capacity it is more similar than the Boy Scouts case - it is possible that the state has a more compelling interest in prevening sex discrimination, since sex is a protected classifification while sexual orientation (at issue in the Boy Scouts case) is not (despite confusing Justice Kennedy language to the potentially sort of contrary). The state can also argue that allowing a girl to be included in the group would not impact the Boy Scouts' message in the same way hat allowing gay leaders directly violates the Boy Scouts' interpretation of its code. Here, the Court would likely defer to the Boy Scouts' message, like it did in Boy Scouts, and determine whether forced

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inclusion of girls would violate that expressive message. Whether or not to defer to the groups' interpretation of its message was one of the chief distinctions between Jaycees and Boy Scouts and Justice O'Connor's concurrence, though not adopted by a majority in either case, indicated that perhaps the degree of exclusivity an expressive association can have depends on its relation to commerce - if the Court were to use that sort of reasoning, it would do what it did in Boy Scouts and defer to the message, because Boy Scouts are not a commercial association in the way that the Jaycees are. The Boy Scout troop would argue that it's message is all about promoting various interests of young boys and that that message necessarily implies the exclusion of girls, however since that argument failed in Jaycees about the busines interests of young men, it could further (probably) point to some aspect of its rules somewhere and, if the court defers to its interpretation, show how the inclusion of girls into the group would violate that part of its message and be able to remain a boys only club.

If the Boy Scout troop is run by the city, the girl will likely be able to make a successful Equal Protection argument to gain admittance into the club. The Equal Protection clause only applies against state actors, so this does not work for private clubs like the actual boy scouts, but when the state makes a classification based on gender, that is subject to the heightened intermediate scrutiny of Virginia Military INstitute: There must be 1) a substantial state interest; 2) the classification must be substantially related to promotion of that interest; and 3) it must be no more discriminatory than necessary. Here, the state would need to come up with some substantial state interest in running a boys-only troop, likely based on something like the biological differences between the sexes as that is the reason gender distinctions are not subjected to strict scrutiny like race. Here, the state could potentially argue that it has a substantial interest in preventing multi-sex camping trips to reduce teen pregnancy, but the exclusion of girls is likely not substantially related enough to justify that interest - the troop could allow girls and then require separate tents or take other steps to further that state interest. If the Troop is run by the city, the girl will likly gain admittance.

Short Essay 2:

The strongest argument made by the various dissenters in Obergefell is that the majority refuses to provide any workable test or quality legal reasoning supporting its decision, as noted by Justice Scalia. Though Justice Kennedy's majority opinion contains snippets and clues towards a number of possible interpretations implying various degrees of marriage rights and protections for homosexual individuals, it does not conclude that any of the possiblities are definitively constitutional and does not declare any scrutiny level to guide lower courts. Much of the opinion (especially the final paragraph) reads like the Casey language about finding one's own "concept of human existence" and is just as helpful at defining constitutional limits and rights.

The weakest argument made by a dissent in Obergefell comes from the various sections about definitions of marriage being a political issue that should be left to the democratic process. Since the passage of the 14th Amendment's Equal Protection clause, it has been the Court's role to police discrimination on the basis of illegitimate classifications such as sexual orientation. It would have been great if Justice Kennedy had come out and said that sexual orientation is a protected class under the Equal Protection clause rather than skirting around the issue an refusing to provide a helpful test, but the dissents' arguments would leave power in the hands of the majority to discriminate against a minority out of an illegitimate animus about the moral character of that minority's private conduct, which is not constitutionally legitimate (animus does not even pass rational basis) - regardless of the sincerity of the moral convictions.

Short Essay 3:

The type of originalism most difficult to justify Loving would be original intent and the type that would make it easiest to justify Loving would be original principles. I discuss each of the 3 types in detail below.

Original Intent: This type of originalism is about trying to determine what the framers that wrote the constitutional provision meant at the time they wrote it. Since interracial marriage was prohibited at the

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time the 14th amendment was framed and it is unlikely anyone at that time had any intention of making interracial marriage legal, this is the type of originalism most difficult to justify Loving under. If the framers had intended to make prohibitions on interracial marriage unconstiutional, it is unlikely the same people that did that framing would have been complicit in and indeed supported such bans around the time the amendment was passed.

Original Meaning: This type of originalism (the type primarily espoused by Justice Scalia) looks to what the words originally meant at the time they were written. Justice Scalia believes that by applying this type of originlism, as opposed to original intent, Loving can be justified because the words of the Equal Protection Clause indicate, even if they were not intended to, that bans on interracial marriage are unconstitutional. Although this interpretation method favors looking back at old dictionaries to determine what the words meant at the time they were written, it disclaims any evaluation of the intent of the framers except insofar as their intent sheds light on the meaning of the words they actually wrote and it is possible the words say thing they did not intend.

Orignal Principles: This type of originalism looks to the principles underlying a partcular clause or amendment of constitutional text and applies that underlying principle to the world we live in today. This type of originalism is often confused with/mingled with the idea of "living constitutionalism." The primary difference is that living constitutionalism is the idea that the meaning of the constitutional changes over time; whereas original principles acknowledges that society is what changes and just proposes we adapt constitutional principles to fit those changes. This is the most likely to support the Loving decision, because regardless of what times were like when the 14th amendment was passed or the intent or original meaning of the Equal Protection Clause, the principles of the clause are to support equality, and by the time of the Loving decision, society recognized that it was unequal to deny different races the right to marry one another.

EXAM #2

Scenario 1

Ed Norris is going to have a difficult time bringing a successful lawsuit. The bill passed by the New Oregon legislature amounts to an infringement on the economic liberties of its citizens by restricting their freedom to contract. Any economic liberty right enforceable against a state finds support in the Due Process Clause of the 14th Amendment. After the Supreme Court decision in Williamson, restrictions on economic liberty must only be supported by a rational basis, meaning that there must be a legitimate government interest and the means chosen must conceivably be able to advance that interest. There, the Oklahoma legislature had passed a law prohibiting opticians from selling new lenses without a prescription. Although the Court acknowledged that the law was perhaps not the most reasonable means of achieving a purpose of ensuring that people have the proper lenses, that is not necessary to pass rational basis review. Instead, the law must only conceivably address an identified evil.

Here, it is unclear what the government's asserted purpose for the minimum wage bill is, but in order to defeat challenge this legislation Ed would have the burden of proving that there is no conceivable rational basis for the law. Because the central agenda of the new administration is to reduce the influence of money in politics, a minimum wage bill that promotes greater income equality would be rationally related to the purpose of reducing the correlation of salary or wealth to influence. Further, the purpose of reducing income inequality itself is a rational purpose, and thus this law should not be struck down. Though it is true that there is a contracts clause in the Constitution and one might think that this would lead the Court to subject laws inhibiting contracts to greater scrutiny, the Supreme Court has declined to apply anything more than rational basis review to economic liberty restrictions. To hold otherwise would return the Court to the days of the discredited Lochner decision, in which the Court essentially sat as a super legislature and imposed its vision of laissez faire economics by invalidating restrictions on individuals' rights to sell their own labor. Today, such restrictions must only pass the rational basis review found in Williamson, and the New Oregon minimum wage law meets that burden. Therefore, I wouldn't

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recommend that Ed pursue this lawsuit.

Scenario 2

It is unlikely that a suit challenging the new law on the grounds that it will disproportionately affect black workers will succeed. This law is facially neutral, and thus it is not automatically subject to strict scrutiny as a facially discriminatory law. To subject the law to strict scrutiny, plaintiffs would have to allege that it amounts to intentional or purposeful discrimination under the 14th amendment equal protection clause. Such a suit would cite the disparate impact as evidence that the new law is discriminatory and therefore fails to provide equal protection of the law on the basis of race. In Yick Wo the Court acknowledged that a facially neutral law may violate the equal protection clause if it is purposefully or intentionally applied or designed to target a specific race. However, the Supreme Court indicated in Davis that disparate impact alone, without intent, is insufficient to invalidate a law as unconstitutionally discriminatory. Thus, unless the organization representing black workers can allege that the government intended to discriminate against black workers by raising the minimum wage, this bill would not amount to racial discrimination as a matter of constitutional law. There is nothing to indicate that the legislative purpose was to discriminate, and in fact it seems as if the primary agenda of New Oregon is to promote income equality, which implies that the intent of the bill is to provide assistance to low income communities that are disproportionately black, rather than discriminate against such communities.

Because the intent element is lacking and we are only left with a disparate impact, under Davis this law must only pass rational basis review. Further, the facts do not necessarily indicate the effect will be discriminatory either, as while 10,000 workers will be laid off, it is unclear how many workers will benefit from the new law by receiving a raise. If black workers make up 25% of the minimum wage workers and only 10% of the general population, then it is also possible that this law will disproportionately benefit black workers rather than harm them. Thus, the law should only be subject to rational basis review. As stated above, the purpose of reducing income inequality by raising the minimum wage would pass rational basis review because the purpose is conceivably related to the means chosen by the government to achieve that purpose.

Scenario 3

This claim is much more likely to succeed than the claim in Scenario 2. While, again, the law delegating enforcement authority to Old Jersey is facially neutral, and strict scrutiny doesn't apply automatically, here it may be possible to allege purposeful discrimination, as in Yick Wo. There, an ordinance required laundromats to obtain licenses from the city, and the city had granted a license to nearly every white applicant, but denied a license to nearly every Chinese applicant. The Court stated that when the disparate impacts/ unequal applications of the law are this obvious and staggering, an intent to discriminate can be inferred and the application of the law was found unconstitutional.

This scenario presents a similar situation: while we don't have statements from officials blatantly acknowledging an intent to discriminate, the law is being applied in such an unequal manner that it is likely a court would infer an intent or purpose to discriminate on the basis of race. When such a large majority of white-owned businesses are given warnings while non-white citizens are fined for the same violation, the city would have a difficult time alleging that the disparate impact is not a result of purposeful discrimination. If the intent element is inferred by a court, then the application of the law should be subject to strict scrutiny, and it is unlikely that there is any compelling government interest to apply the law in such a discriminatory fashion. Therefore, the claim here is much more likely to succeed than the claim in scenario 2.

Scenario 4

Hookah Hookup (HH) would bring a challenge to this law as a restriction on 1st amendment commercial speech rights, as applied to the states through the 14th amendment (the 14th amendment due process

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clause incorporates first amendment free speech rights as fundamental rights). The Supreme Court has indicated that government has a freer hand in regulating commercial speech than political speech, though it has also acknowledged that the government cannot restrict truthful commercial speech for paternalistic reasons. See Virginia State Bd of Pharmacies. In Central Hudson, the Court announced the test for whether a government restriction on commercial speech is valid: (1) If the speech false or misleading?; (2) if not, is the restriction supported by an important government interest; (3) does it directly advance that interest, and (4) is the law no more restrictive than necessary (is there a substantial fit between the purpose and the means chosen). In Reilly, the Court found that a law banning nearly all outdoor advertising of tobacco products in the major metropolitan areas of Massachusetts in order to prevent the ads from reaching minors failed step four of the Central Hudson test, as it was over inclusive and prevented tobacco companies from advertising almost anywhere. Further, the point of sale restrictions in that case, which prohibited ads below 5 ft to keep them out of childrens' eyesight, failed step 3 by not directly advancing the gov't interest, as kids could merely look up and still see the ads.

Here, the law restricting hookah advertising should probably survive Central Hudson intermediate scrutiny. First, there is a question as to whether the speech is false or misleading. The ads say "Hookah Hookup: Where It's Always Time for a Good Time," which doesn't necessarily convey any factual information about the product (such as prices, options, etc), so as a threshold matter this new law may not restrict any truthful speech. Unlike in Reilly, the law here doesn't restrict where ads can be placed or place any restrictions on the ability of the companies to convey truthful information about their products. Instead, the law specifically states that aims to prevent dissemination of the misleading idea that hookah smoking is safer than other forms of tobacco, and regulates the manner of advertising in order to reduce the appeal of hookahs to minors. Thus, while Reilly addressed a content-based restriction that banned ads altogether in certain places, the ad here only regulates content to the extent that content is misleading (and falls outside Central Hudson, meaning rational basis review would apply), and regulates the manner in which other information can be disseminated. Thus, it is possible that a court would only subject the law to deferential rational basis review, which it should easily pass as a conceivable means of achieving a legitimate interest in reducing the appeal of tobacco to minors.

However, if the court determined that the law isn't just aimed at misleading speech or the manner of restricting truthful speech, the law should still be upheld through application of the Central Hudson test. First, as stated above, reducing the appeal of tobacco products to minors to protect children under the legal smoking age is a legitimate government interest. In addition, the requirement that the billboards be black and white appears to directly advance that interest, as the state has evidence that minors are more likely to be influenced by ads with color and images. In Reilly, the point of sale ads failed step 3 of the Central Hudson test in part because there was little evidence that placing ads above eye level would prevent children from seeing the ads and being influenced. Here, however, there is direct evidence that color and images encourage minors to use tobacco, and rather than restricting where the ads are placed, the law only restricts the attributes of the ads to directly address the identified problem of hookah ads appealing to minors. Finally, there appears to be a substantial fit between the means chosen and the identified interest in preventing the attractiveness of the ads to minors. The law doesn't restrict truthful content or even location of the ads, but only targets those advertising characteristics shown to have an effect on minors. Thus, there may not be any less restrictive means of achieving the important government interest, but at the very least there appears to be a substantial fit. Because the law may only need to pass rational basis review, and seems to pass the Central Hudson test anyways, HH should not be able to successfully challenge the constitutionality of this law.

Scenario 5

The application of the new law to the advertisement is probably not constitutional, though that largely depends on whether or not the statement in the ad could be construed as false or misleading. As stated above, it appears that the portion of the new law restricting the ability of hookah facilities to imply that hookah is safer or a more advantageous choice than other forms of tobacco use is designed to prevent misleading speech. Unlike with other types of speech (eg political), the Supreme Court has stated that

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government has a freer hand to regulate misleading commercial speech. This may be because misleading commercial speech allows a business to operate in a manner that harms others, while political speech as an individual right is more expansive and can more readily be disputed with counter-speech, obviating the need for a government restriction on speech. Here, the law is not merely restricting speech for paternalistic reasons, but is rather ensuring that hookah purveyors cannot falsely imply that their product is safer than other tobacco, as in reality hookah presents the same dangers of heart and lung disease as other tobacco products according to the American Lung Association. When the government seeks to restrict misleading commercial speech it should only have to pass rational basis review. Here, preventing citizens from being misinformed as to the relative safety of hookah is a legitimate interest that is conceivably furthered by restricting false advertising, so at least facially the law is valid. However, preventing a company from arguing that hookah is more advantageous is a tougher question, as its unclear what that restricts. That is, the tobacco companies are obviously competing somehow, and if advantageous just means more enjoyable, then that seems like an assertion that's not supposed to be misleading, only promotional. The same analogy could be made with alcohol--although a state could clearly prevent a beer company from advertising that the alcohol in beer is safer than the alcohol in wine, that is different than beer and wine manufacturers competing for business by arguing that one product is more enjoyable than the other, as consumers can make conclusions as to matters of taste for themselves.

As applied to Hookah Hookup, HH would want to argue that the speech nowhere compares hookah to other forms of tobacco, nor does it make any claims as to safety. Thus, the ad does not make misleading or false claims that consumers may not be able to verify for themselves. The ad does say that hookah is the "smart choice when you want to relax," but equating smoking with relaxation is different than asserting that hookah is safer than tobacco. It is likely that the suit against HH would have to allege that this ad amounts to alleging that hookah is "advantageous" as compared to other types of tobacco, unless "smart" is equated with an allegation of safety. Still, the ad does not say smart compared to what, and the current court is fairly protective of speech related to something that consumers could evaluate for themselves. If HH can demonstrate that it is only promoting the experience of smoking hookah versus other tobacco--even though both pose the same health risks--then it should be able to suceed in asserting that the application of the law to them does not advance a government interest in preventing misleading ads and is thus unconstitutional. If, however, the government can demonstarte that the word "smart" implies that hookah is safer than other forms of tobacco, then the ad could be construed as misleading and its application would be constitutional.

Scenario 6

Jill has several constitutional arguments that she could make.

Due Process

The first is that the new law interferes with a 14th amendment substantive due process right to individual privacy and autonomy in family and marital relations. Several cases have acknowledged that fundamental individual liberty rights under the DP clause are especially relevant in matters related to family life and the decision of whether or not to have a child. See Griswold (overturing ban on use of contraceptives by married couples, acknowledging the right to privacy in marital relations); Baird (extending the Griswold reasoning to individuals, and acknowledging that an individual's decision of whether or not to have a child is a fundamental liberty); Lawrence (asserting the liberty right of individuals to be free from government intrusion in their intimate personal relations). Here, if the right to decide whether or not to have a child is a fundamental individual right, there seems to be no constitutional basis for distinguishing between that and the individual decision to adopt a child. When a regulation amounts to the deprivation of a fundamental right, strict scrutiny should generally apply. Here, the law prohibits adoption by a individual cohabiting with a sexual partner outside a two person marriage, but does not prohibit adoption by an individual living alone. Thus, if the gov't interest is in ensuring that children have a stable home and that stability is founded on a two-person marriage, the failure of the law to prohibit adoptions by single individuals seesm to render it underinclusive and thus unconstitutional. However, that all depends on

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whether there is a fundamental right to adopt a child implied by the recognized individual right to decide whether to procreate.

Equal Protection

Jill could also argue that the law unconstituitonally classifies people on the basis of their polyamorous status, though this is a more difficult argument. She would probably have to assert that polyamorous adults are a suspect class. A law aimed at a suspect class is deserving of heightened scrutiny, and in Cleburne the Court announced a test for determining whether a class is "suspect." A court would ask whether (1) there is a history of discrimination, (2) the class is irrelevant to an individual's ability to participate in or contribute to society, (3) whether the trait is immutable, (4) and whether the class lacks political power. Here, Jill may be able to allege that there is a history of discrimination against polyamorous adults, but that is unclear from the facts. It is certainly true that polyamorous sexual relationships are irrelevant to an individual's ability to participate in society generally, but the Court in Obergefell seemed to acknowledge that a two-person marriage is relevant to the stability of a home for a child. In addition, it's unclear whether being polyamorous is immutable, though it's likely that the group lacks political power. In all, it seems unlikely that polyamorous adults are a suspect class, and thus the classification in the law must onyl be supported by a rational basis. See Cleburne. In arguing against gay marriage, states asserted that the marital relation was important to providing a stable home for a child. The Court seemed to agree that a two-person marriage is relevant to a child's well being, only disagreeing that it mattered whether the couple was heterosexual or homosexual. Therefore, it seesm that the current Court would find an interest in maintaining a two-person marriage for the sake of the child to be a legitimate interest, conceivably supported by this law.

Jill might also argue that, as stated above, raising a child is a fundamental right, and by discriminating against her on the basis of her polyamorous status, she is being denied equal protection in the exercise of a fundamental right. However, again, this assumes that adoption is a fundamental right, rather than just the decision to have a child, and it's unclear whether she could succeed on this claim.

Free Exercise

The final claim that Jill could make is that the law has the effect of prohibiting the free exercise of her religion, as being in a polyamorous family is mandated by the Goddess of Love. After Smith, the general rule is that there are no exemptions from generally applicable laws for religious reasons. Thus, under the Smith holding, Jill should not be able to claim an exemption from the prohibition on adoption by polyamorous cohabiting adults for religious reasons alone. However, is might make a difference if the state had a process for making good cause exceptions, granted exceptions to polyamorous relationships that adopt special needs children, but denied an exception to Jill who claimed one on religious grounds. In Smith, the court explained that when a law contains exceptions for good cause and those exceptions are being granted for secular reasons, the decision to deny an individualized exception for religious reasons could be subjected to strict scrutiny. Thus, here, Jill could assert that because exceptions are available to polyamorous relationships that adopt special needs children, the decision to deny her an exception for religious reasons should be subject to strict scrutiny. Therefore, the government would have to have a compelling interest in denying the exception and narrowly tailor their decision to advance that interest. It seems that the government would have a difficult time meeting this test, as if they asserted that the "special needs" exception is due to a pressing need to get those children into a home, that would undercut their initial purpsoe of ensuring that adopted kids have the stability of a two-person marriage home. However, the government may assert that the religious exception would not achieve the objective of helping more special needs children find homes, so while that exception is narrowly tailored, the exception claimed by Jill would undermine the primary purpose of the law. Still, strict scrutiny is a difficult test to meet, and so if the government allows for secular exemptions, then it would be difficult for New Oregon to deny an exception to Jill.

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Scenario 7

The analysis for whether the bans on solicitation are constitutional will differ based on whether the parking lot is a public forum or a nonpublic forum. Speech in a public forum receives the greatest protection. In determining whether a place is a designated public forum or a non public forum, the Supreme Court in Lee considered the fundamental purpose of the forum. There, a majority of the Court determined that the areas of an airport outside security were a non-public forum because the airiport is designed for air travel, and only has restaurants, shops, etc, for the convenience of travellers, but the presence of these amenities did not transform the space into a public forum. In contrast, the Minnesota State Fairgrounds in Heffron were a designated public forum because they were opened to the general public without restriction during a period of time each year. Here, it is likely that the Court today would find the parking lot to be a designated public forum in the hours before football games. This is because the parking lot is open to the general public, people will be walking around, eating, drinking, and talking, and often people will attend a tailgate even if they do not have tickets to the game. Thus, unlike an airport where almost everyone there is travelling somewhere and has a ticket, a football stadium parking lot is a gathering place before games that the state indiscriminately opens to the general public. See Perry (finding a school mailbox system to be nonpublic because it was not indiscriminately opened to the public).

If the parking lot is a designated public forum, then it is a bit more difficult for the state to regulate speech. However, unlike traditonal public forums, a state can designate a public forum for a particular purpose. As a starting point, the state might argue that even if this is a designated public forum, its purpose is to allow people to prepare for football games and it can restrict activity within those parameters. That said, it does not appear that the state has only allowed people with tickets to enter the lot, and therefore it is unlikely that the opening of the forum for footbal purposes has bearing on whether the state can restrict the activities of ISKCON just because they are in the parking lot before a football game. Instead, the state can impose time, place, and manner restrictions on speech in a public forum so long as the the restrictions are justified without reference to the content of the speech, are narrowly tailored to advance and important government interest, and leave open ample alternative means of communication. Heffron. Here, the regualtion is justified by preventing the risk of fraud or duress, which was deemed a sufficient interest unlrelated to content in both Heffron and Lee. Further, the law allows them to solicit future donations by distributing contribution envelopes, thus indicating that the law has a substantial fit to the asserted interest (preventing farud or duresss from in person solicitation) and leaves open the alternative of both accepting future donations, or soliciting immediate donations on the sidewalk outside the stadium grounds. The court has consistently upheld bans on in-person solicitation (Lee, Heffron) in situations where there are large crowds, and it seems the same logic would apply particularly in a parking lot with moving vehicles and the need to keep the crowd flowing and controlled. In addition, in Lee, a majority of the court upheld the solicitation ban, and Justice Kennedy found it significant that the group could pass out contribution envelopes but not take immediate donations, to prevent problems with crowd flow, duress, or fraud. It seems likely that the current court would also find the possibility of future donations sufficient, and thus even if this is a designated public forum the restriction should be upheld.

If the state succeeded in arguing that the parking lot was a nonpublic forum by analogizing to Lee and asserting that people are primarily there with tickets to see a game, not to exchange ideas, then they would have an easier time defending the restriction. The government can impose speech restrictions on nonpublic forums if they are reasonable and do not amount to viewpoint discrimination. Because the state should be able to meet the more difficult time/place/manner test for a public forum, it should easily be able to assert that the solicitation ban is reasonable and there is no evidence it amounts to viewpoint discrimination.

Scenario 8

After Roe, a woman has a fundamental right to choose whether to have a child before viability, and it is 15

 

likely that the 48-hour dual informed consent requirement would be subject to an undue burden standard of review in analyzing its constitutionality before viability. In Casey, the Court stated that the state has an interest in both the health of the mother and the potential life from conception, such that the state can regulate abortion before viability if the state has a rational reason for imposing the restriction and it doesn't place an undue burden on the woman's right to choose to have an abortion. The Court described an undue burden as something that places a substantial obstacle in the path of the woman's right to choose, and found a spousal notification requirement to be an undue burden while a 24 hour waiting period was not. However, after viability, the state can regulate in the interest of the fetus, even going so far a proscribing abortion altogether so long as it allows an exception for the health and saftey of the mother. Carhart.

Here, there are several pieces of factual information needed to analyze the constitutionality of the law. Most importantly, we need to know whether this law applies at all stages of pregnancy; if it only applies post-viability, then it would be constitutional so long as it did not proscribe abortions when necessary for the health or safety of the mother. If this law also applies pre-viability, then the question is more difficult. The Court has provided very little guidance on what constitutes an undue burden. Though there is no indication of the state's asserted interest, it is not difficult to meet rational basis, and the state will likely assert that it is legislating in the interest of the mother. While the Court has upheld 24 hour waiting periods and informed consent as not violating the 24 hour waiting period--even if this discourages some women from haveing an abortion--48 hours and two visits to the doctor is a much more demanding requirement. Still, if there are lots of clinics in the state and women do not have to travel far or spend the night way from home in order to satisfy the 48 hour dual informed consent requirement, then it still may not be an undue burden. However, if the law requires women to travel far from home and requires overnight stays due to a lack of clinics in the state, then this law very possibly would consitute an undue burden by placing a substantial obstacle in the right of women to choose who cannot make that trip or stay away from home for several days. Especially given that the spousal notification t requirement was struck down in the interest of protecting women who couldnt tell their spouse, a 48 hour waiting period might practically have the same effect as alerting an abusive partner if the woman had to travel far from home.

Short Essay 1:

If the city determines that the troop is violating a city ordinance by not allowing girls as members, the tropp would argue that the law infringes on their first amendment right to free expressive association, as applied through the 14th amendment. The Supreme Court has stated that groups engaged in some form of public or private expression enjoy a right to free association, and in Dale we learned that the Boy Scouts are an expressive association because they seek to instill a certain set of values. If a group engages in expressive association, we would next ask whether forced inclusion of an unwanted member would significantly interfere with the group's desired expression, giving deference to the group on the nature of their expression. Here, the tropp might argue that it seeks to instill a certain set of values in young men that is specific to males, and inclusing girls would interfere with that expression. Given the Court's deference to the Boy Scouts in identifying the nature of their expression and what would interefere with that expression in Dale, it seems likely that the Scouts could assert that including girls would infringe on their free association rights. Therefore, forced inclusion should be subject to strict scrutiny: it must be supported by a compelling government interest unrelated to the suppression of ideas, and there can be a significantly less restrictive means of achieving that interest. In Boy Scouts, the Court hardly attempts a strict scrutiny analysis, and it's possible that in a private organization liek the Boy Scouts, if the Court finds that forced inclusion significantly interferes with a group's expression, then there is no way for the government to pass strict scrutiny. One difference here, however, is that the government interest is in prohibiting discrimination against women, and gender is a quasi-suspect class, while in Dale, sexual orientation discrimination was not suspect. Thus, the government interst here may be stronger. Still, because free expressive association is a fundamental right, the Boy Scouts would likely be able to sucessfully challenge the statute forcing inclusion as a significant interference with their desired expression.

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It would be a different matter if the troop was run by the state, because state action is subject to the equal protection clause of the 14th amendment. In Boren, the Court stated that intermediate scrutiny applies when the state classifies people on the basis of gender, and in VMI we learned that this intermediate scrutiny may be stricter than traditional intermediate scrutiny: The state must assert at least an important interest and a substantial fit, and the analysis is also colored by the requirement of an exceedingly persuasive justification for the classification. As in VMI, a girl could allege that the Boy Scouts provide opportunities and training that are desirable to some girls and there is no important interest in providing a boys-only club when the state does not provide the same opportunities to women. The state might argue that it also runs girl scout troops, but those organizations engage in different activities, and as the VMI court noted, separate but unequal opportunity is most certainly not equal protection. Thus, it seems like a girl would have a strong constitutional argument that there is no important government interest that would support exclusion of girls from the Boy Scouts on the basis of gender, as this classification violates the Equal Protection Clause.

Short Essay 2

The strongest argument in dissent in Obergefell is probably Justice Scalia's admonition of the majority for their failure to articulate a clear standard or review. While Justice Scalia mocks the flowerly language in typical fashion, his underlying point is valid: what does this case mean going forward? Sure, the result may be desirable by recognizing the right of homosexual couples to get married, but we are left with no clear vision as to whether this means sexual orientation is a suspect class, whether there is a substantive due process right to gay marriage, or whether there is just a fundamental right to marry and the states had been discriminating in the exercise of that right. No matter how desirable an outcome, when an opinion fails to provide a clear indication of the law it is applying, it makes it difficult to understand the nature of a constitutional right.

I think the weakest argument made in the Obergefell dissents was Chief Justice Roberts' assertion that the majority opinion essentially revived Lochner and caused the Court to sit as a super legislature, imposing its moral views on an issue best left to the democratic process. First, the Chief Justice fails to even address the equal protection argument that sexual orientation is a suspect class, and while the majority never explicitly invokes that idea, Justice Kennedy does describe a history of discrimination, immutability, and irrelevance in his opinion, and that is certainly the strongest argument ignored by the dissent. Second, the Chief Justice never explains why he is applying rational basis review; he just assumes that the regualtion of marriage is the same as economic regulation and says that the state bans pass rational basis review. This leaves his opinion wonting for doctrinal foundation.

Short Essay 3

It would be most difficult to justify the Loving decision under original intent, as that asks what the subjective intent of the Framers was in drafting the 14th Amendment. While original meaning is more textual, and thus can evolve to a degree, original intent cabins the constitution in the understanding of the Framers--or the framers of a particular amendment--and certainly no one would have understood the 14th Amendment as guaranteeing the right to interracial marriage in the 19th century. In fact, the idea was incredibly controversial even when Loving was decided in the 1960s, indicating the problems with relying on subjectivity. Original meaning is probably the next most difficult doctrine to justify the decision, but even Justice Scalia--the most prominent proponent of original meaning--would not disagree that the freedoms written into the 14th amendment (equal protection of the law) require equal treatment on the basis of race, and thus require the result in Loving. I don't think this question would even be close under original meaning; no one at the time intended to create a right of interracial marriage, and thus none exists under this interpretive philosophy.

It would be easiest to justify Loving under original principles--the more liberal type of originalism. Under that philosophy, one would ask whether the broad principles written into the 14th amendment support a

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right to interracial marriage. The 14th amendment, passed after the civil war, was designed to promote equality, and while some at the time understood this to mean political, not social, equality (see Plessy), there is no doubt that the principle of equal protection as applied to the modern world would require equal application of the law to all regardless of race. Therefore, if a state allows couples to get married, it could not deny the right to interracial marriage without denying equal protection. Again, under original principles, I do not think the question of whether Loving was correct is even a close one. The intent to engender racial equality was clear, and Loving is a natural application of that principle given the understanding of equal protection at the time it was decided.

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