Con Law Outline
Dowd Fall 2015
Obergefell
Marriage fundamental
Right to personal choice
2 person Union/commitment between 2 people
Safeguard children/family
Stigma against children out of wedlock
Foundation of social order
Maynard v. Hill
Bill of Rights to States
Barron v. Baltimore 1833
State action made Barron’s wharf shallower
5th A Takings Clause
Does not apply to states
Restriction on fed gov not state/local gov
Slaughter House Cases 1872
Granted monopoly to one slaughter house and required other butchers to use it
13th A invol servitude
About slavery, particularly African slavery
14th Privileges + Immunities
Meant to push back against Black codes
If applied would give Congress near unlimited power
14th DP/EP
Narrowly defined to slavery
Saenz v. Roe 1999
Newly arrived citizen owed same P+I
State citizenship
Incorporation
McDonald v. Chicago 2010
Incorporated 2nd amendment to states
State Action
Application to Private Conduct
Civil Rights Cases: US v. Stanley 1883
Suit by inn/theater owners against CRA 1875 as not appropriate to enforce 14th
Whether private conduct falls within 14th
Narrow reading of 14th § 1, 5
13th reaches very narrow amount of private conduct (only slavery, not discrimination)
Public Function
Traditional public function + Function in a public way
Marsh v. Alabama
Evans v. Newton
Land given to state for segregated park
Park served a public function so under 14th § 1
Entanglement
IF: gov affirmatively authorizes, encourages, or facilitates private conduct that violates constitution
Shelley v. Kraemer 1948
Wanted private K (restrictive racial covenant) enforced
Judicial enforcement -> State Action -> 14th EP Rights
Property rights
Moose Lodge v. Irvis 1972
Irvis guest of member at private club, refused service because black
Moose Lodge had a liquor license -> State Action
Rejected by Court
Operation of liquor control broad “does not sufficiently implicate the State in the discriminatory guest policies of Moose Lodge”
If accepted “would utterly emasculate the distinction between private [and] state conduct”
Reitman v. Mulkey 1967
Couple refused to be rented apartment on basis of race
Prop 14 – person renting property can decline to do so “in his absolute discretion” -> renders antidiscrimination laws void
State Action by encouraging discrimination
Not “neutral” due to animus intent
Property Rights
Procedural Due Process
DeShaney v. Winnebago 1989
Child abuse, social services knew, failed to act
14th Liberty
Negative rights – freedom “from”
Positive rights – right to _____
No SDP
Castle Rock v. Gonzales 2005
Failure to enforce restraining order -> 3 daughters found dead
14th Property Right
Court ordered restraining order, guarantee police will enforce
Entitlement must be mandatory
Police discretion made it not mandatory -> no property right
No property right -> no State Action -> no PDP
Domestic violence restraining order -> more mandatory/less discretion
Legislative intent to remove police discretion -> entitlement -> property right -> PDP
Equal Protection
Level of Scrutiny
SS – compelling interest + narrowly tailored (race, national origin, alienage)
IS – important + substantially related (gender, non-martial children)
RB – legitimate + rational relationship (default)
Does gov action pass scrutiny (ends + means)
Fundamental Rights
Ra
“rigid scrutiny”, set out SS std
Dred Scott 1857
No jurisdiction (Dred is property -> can’t sue)
Free blacks are not citizens
Loving v. Virginia 1967
Interracial marriage law, punished violators (both black/white) equally -> “equal application” – rejected
White Supremacy not even a legit gov interest (let alone compelling)
Palmore v. Sidoti 1984
Father sued to take custody from wife + her new black husband
Court awarded custody to father for “best interest of child” because of stigma child would face due to interracial parents
While “best interest” is compelling state interest cannot give private bias/prejudice force of law via judiciary
Plessy v. Ferguson 1896
Denied spot on segregated railroad cars
EP only applies to civil/political equality NOT social equality (not meant for that e.g. schools + marriage)
Separate but Equal
Harlan Dissent
Constitution is “color bling”
Brown v. Board of Edu 1954
Proceeding litigation challenging “but equal” because schools not equal
14th A had nothing to say about public schools (few existed at time)
Schools now important/central
Separate cannot be equal
Looked to social science
Johnson v. California 2005
Unwritten prison policy to racially segregate new transfer prisoners
What scrutiny should be applied -> SS
SS must always be always be applied for racial classifications
Legitimacy of crim justice system at stake
