Constitutional Law II: Civil Liberties Class Notes

Constitutional Law II: Civil Liberties Class Notes Introduction to Civil Liberties I. Course Introduction The universality of human rights is the theory that allows us (the United States) to intervene internationally. o The storybook explanation for US intervention is that Americans just do it better unlike other countries, America is a nation that was founded on conceptions of civil liberty.! Although this is the storybook explanation or justification for American intervention, is there some merit to the claim that the United States is a freer country than most others? Possibly. But again, this is still just a story see the history of several minority groups in the United States, including African Americans, Native Americans, etc. II. PGA Tour, Inc. v. Martin (2001) Introduction o The PGA is a private association, but it is generally open to the public for anyone to participate. In this regard, the PGA is held to be a type of public accommodation. o PGA rules require players to walk the course as part of being able to play the game of golf. Martin has a condition that makes it very painful (and even dangerous) for him to walk. He sued the PGA under the Americans with Disabilities Act (ADA), requesting to use a cart during the tournament (instead of walking the course). The ADA requires public accommodations (hotels, airlines, etc.) to make reasonable accommodations for disabled individuals, if doing so allows the disabled individual to participate in the activity or utilize the accommodation. o The PGA argued that allowing Martin to use a cart would not be a reasonable accommodation because it would fundamentally change the game of golf itself.! For example, one of the challenges in golf is overcoming the fatigue of walking the course. If a player is not required to walk the course, he may be less fatigued than the others and therefore able to put more energy into each shot. The PGA argued this would effectively give Martin an advantage over the other players, whereas the policy of reasonable accommodation was meant simply to level the playing field. Congress has legislated that making reasonable accommodations for disabled individuals is a policy of primary importance in the United States. But who decides what constitutes a reasonable accommodation? o For example, one could argue that if it would be unreasonable to allow Martin alone to use a cart, why not let all of the players use a cart? (The PGA never made this argument, because the players all want to look like tough athletes. In reality, no one besides Martin would use a cart). The Supreme Court reasoned that the case turned on the issue of which elements were essential to the game of golf. If walking the course was not essential to the game of golf, then the PGA must make a reasonable accommodation for Martin in the form of allowing him to use a cart during the tournament. o SCOTUS determined that walking the course was not an essential element of the game, and therefore PGA must make the requested reasonable accommodation.! 1

! Implicit in this holding is the idea that even as a private body (albeit one characterized as a public accommodation ), the PGA does not have the right to set its rules in a way that would override the policy of the ADA. In general, discrimination law stands for the idea that society is not neutral in these debates we start with a presumption that reasonable accommodations should be made, unless those accommodations are unreasonable. III. Examples and Hypotheticals Overweight adolescent student auditions for the San Francisco Ballet Academy o The San Francisco Ballet Academy receives a portion of its funding from the city as an alternative high school program. The overweight teenager auditioned for the Academy and was denied admission because she did not have the appropriate build for a professional ballerina.! The student and her family sued, alleging discrimination. However, the San Francisco Ballet argued that there was no way it could make a reasonable accommodation for her she simply had the wrong body type. This was not something the student could diet or exercise away. Is this case similar or dissimilar to PGA Tour, Inc. v. Martin? o If the court in the instant case held that admitting the student was part of making a reasonable accommodation, the ballet could plausibly argue that such an accommodation would actually put the other students at a disadvantage (e.g. pas de deaux work). Australian dwarf throwing (case went all the way to the UN) o The problem in this case is that all the dwarves were of age, and gave their informed consent. In this context, what does freedom mean? In other words, how do we balance the importance of letting informed adults make their own choices, even those we find objectionable, versus the importance of designating certain activities as off limits, whether people consent or not (i.e. prostitution)? What are the basic constitutional principles we can look to in order to decide these types of cases consistently? IV. Political Concepts and Theory of Civil Liberties Classical liberalism o Post enlightenment, primarily in England! [John Stuart Mill On Liberty, chapter 1] o This theory generally holds that society is molecular, composed of individuals who each have their own aims, goals, etc. Society as a singular organism does not exist.! The implication of this belief is that society is not united by one orthodox right answer about how individuals should live and behave. o For the classical liberal, the default position is freedom of choice and freedom of consent. In other words, people should be left alone to make their own choices consistent with their individual views.! This default position leads to the political conclusion that the law must be neutral. Why? Because if society appoints itself as the moral czar and acts or legislates in ways that are non neutral, it would effectively be endorsing some individual choices and views over others. Once the state legalizes a mandate, that mandate is a deprivation of our freedom and autonomy. Why? Because in legalizing that mandate, the state is saying that this is the morally correct way to behave, and we as society do not care if you made a different individual choice.! 2

o In contrast, the classical liberal would argue that the tent of society is big enough for each individual person to make his or her own choices. o Notes Classical liberalism is very much at home with the [economic] free market, because classical liberalism is not just an argument for freedom of thought and choice, but for deregulation generally.! For a classical liberal, opening the market to recruit new interests into the market is the right thing to do because we should allow people to express their preferences (and more choices mean a greater likelihood of finding something to match each individual s preferences). Freedom is about making our best efforts to go toward what the people want. For classical liberals, the marketplace is the correct forum to determine what the people want, because it abides by the principle of one person, one vote. o For example, if a majority shows that the people want to cut down an old growth forest, classical liberals would argue that they should be allowed to do just that. The contrary argument would be that people should not be allowed to exercise choices that would have an irreversible impact on future generations.! (So if you are tempted to make the stewards of the earth argument, you are not a classical liberal). o Liberals do worry, however, if they think the voice of one side will be too strong and jeopardize or destroy the principle of one person, one vote. Ultimately, this concern is what justifies market regulation. Classical conservatism o The default position for a classical conservative appears to be anti change and anti progress. Classical conservatives are generally in favor of conserving and preserving traditional customs and ways of life. o To explain the default position, Michael Oakeshott argues that for most people, the joy of life comes from familiarity of surroundings. This familiarity sets into place a kind of yearning the familiar is what made you who you are. It is not that conservatives do not recognize that progress could potentially make something better, but that it simply doesn t matter. To classical conservatives, a person who feels no loyalty or attachment, no sense of belonging to the status quo is a very thin individual (not a bad person, but someone who is dwarfed because he or she is cut off from all of the virtues that make life worth living).! As a result of this default position, classical conservatives often have to be dragged kicking and screaming into novelty, even when they are willing to admit that the novelty might be progress or an improvement over the status quo. Why? Because novelty in any case means a loss of something familiar. In other words, Michael Oakeshott is simply saying that a classical conservative can understand that something new is an improvement and still not want to embrace that change because the conservative knows that there is value in the familiar as well. o [Criticism of this view] However, it is important to note that the classical conservative view depends on the idea that there is value in the familiar. Oakeshott himself says that if the familiar for a particular individual is unjust, that individual should not be a conservative (because then there is little to no value in the familiar). In these situations, even a conservative would embrace change. Utilitarianism! 3

o Utilitarianism initially looks like liberalism in that society is composed of many unique individuals with their own goals, aims, and preferences. However, utilitarianism also appears to be radically democratic in that it matters what the majority of individuals want. o Example Runaway trolley problem. If you do nothing and let the trolley run its course, the five people on board will die. If you throw the switch and divert the trolley, the five passengers will live, but the child playing on the tracks will die.! Utilitarianism works within a numerical democracy in which the problem is that everyone s lives are equal. So in the runaway trolley problem, utilitarianism would say that you maximize democracy by throwing the switch, because under a numerical democracy theory, five lives are greater than one. However, the problem with throwing the switch in this situation is that utilitarianism takes no account of variations in the level of different individuals contributions to society. One variation of utilitarianism also argues that this type of decision (whether to throw the switch or not) requires more knowledge than the decision maker has in that situation. o (Note that courts have largely rejected the utilitarian theory that once dominated law schools. Today, individual rights arguments are an important check on majoritarianism. Civic Republicanism o Civic republicanism essentially contends that the founders wanted a republic instead of a democracy because they were afraid of a democracy controlled by self interest. Civic republicanism argues that citizens need to feel a sense of common civic duty. In other words, there have to be structures in place that make people want to be citizens (for example, structures that make people want to spend President s Day actually thinking about President Lincoln, and not just take the day off to go skiing).! Liberalism can be criticized as a theory that is too tilted towards the individual. Freedom of Religion I. Establishment Clause Religion and Public Schools Everson v. Board of Education (1947) o Introduction! States began to pass the types of laws at issue in this case after World War II. By that point, it was already established that taxpayers have standing to bring these types of cases.! Generally, people who believe in religious freedom believe that freedom is best achieved through a separation of church and state. o New Jersey state statute authorized reimbursement to parents of children attending parochial schools. The statute was alleged to be a use of state power to support church schools contrary to the prohibition of the 1st Amendment [ establishment of religion clause], which the 14th Amendment made applicable to the states. o While a state cannot contribute tax raised funds to support a religious institution, it also cannot exclude individual citizens, because of their faith or lack of it, from receiving the benefits of public welfare legislation [such as school busing].! The Amendment requires the state to be neutral in its relations with groups of religious believers and non believers; it does not require the state to be their adversary. o Holding We cannot say that the 1st Amendment prohibits New Jersey from spending tax raised funds to pay the bus fairs of parochial school pupils as part of a general program under which it pays the fares of pupils attending public and other schools.! 4

! The Court found instructive the fact that the aid did not go directly to the parochial institution. Instead, the aid went to the parents to fund or assist a choice they had a right to make under the Court s right to privacy jurisprudence. The government simply cannot be using the aid as a means of encouraging the parents to make one choice over another. o Notes The reasoning in this case is a type of reductio ad absurdum argument obviously the state cannot decline to build sidewalks, extend fire protection, etc. to religious schools].! So the question then becomes whether providing busing for children attending parochial schools is more similar to dissimilar to these examples (building sidewalks and providing fire protection). However, the majority in Everson immediately says that these analogies are of no help, because declining to build sidewalks would actually make it more difficult to reach the church. Again, the state is simply required to be neutral towards religion, not actively hostile. This argument cannot succeed because taking it to the necessary extreme makes the argument absurd.! However, this does appear to be a case of the state providing a subsidy to religious education. Everson is essentially arguing that the state violates the establishment clause of the 1st Amendment as soon as it pays for anything religious. But that argument loses in this case. Why?! On its face, the legislation appears to be neutral or impartial in that it offers the same benefit to all students, whether they are attending a public school or a not for profit religious school. The statutory language appears to be establishing an inclusive, general program. But a general program of what?! The principle behind the establishment clause of the 1st Amendment is a wall of separation thus, it is irrelevant whether the amount of the aid provided by the state to a religious institution is large or small. This legislation, however, still allows the state to stay clear of actually providing religious funding, because the aid is going to the parents, rather than to the parochial institution.! But the principle that the government is not supposed to fund anything religious does not actually mean that the government is supposed to remain neutral to religion. The statement that the wall must remain high and impregnable actually suggests that the government must actively work to keep state and religion separate, not that the government must simply ensure that all religions are included or treated equally.! The dissent argues that while the state in this case may not be making the choice between secular and religious schools the parents are making that choice with state money (and at least some of the parents receiving state funds will use it to make a religious choice). The dissent argues that the availability of the subsidy for parochial education makes it that much easier or more affordable for the parents to make a religious choice. At least some of the parents making this religious choice would not be able to do so without the availability of the subsidy. Money taken by taxation from one is not to be used or given to support another s religious training or belief, or indeed one s own. The prohibition is absolute.! The takeaway from Everson is that the principle is one of separation, not neutrality. The majority argues that the general program created by the legislation is not religious at all, because the aid stops at the schoolhouse door the aid only goes towards the cost! 5

of transportation. The majority argues that this makes the legislation a type of general welfare program that fits properly within the state s obligations (of ensuring the health, education, and welfare of its citizens, including transporting children to school safely). This argument allows the majority to characterize or describe the program in a way so as to avoid a finding that the program violates the wall of separation principal and is thus unconstitutional.! Everson is both a strong statement of the separation principle, but also a demonstration that the separation argument does not work. Why? Because of course government and religion intersect in some situations, and society may sometimes have valid secular reasons for allowing that intersection to occur (i.e. sidewalks leading to religious schools, or the provision of emergency services). Over time, the language in the court s jurisprudence on religion and public schools will shift from separation " neutrality. McCollum v. Board of Education (1948) o In McCollum, the Court struck down a school board s practice of permitting students to attend sectarian classes held in the public schools during school hours by parochial school instructors.! The majority opinion found two problems with the practice: First, public school buildings were used for the purpose of providing religious education; and Second, the program afforded sectarian groups an invaluable aid in that it helped to provide pupils for their religious classes through use of the state s compulsory public school machinery. o This problem is premised on the notion that things have a social meaning kids who opt out of the sectarian classes may feel disfavored by the state because the state, which is effectively endorsing a program that does not align with their or their parents beliefs. o Notes McCollum was a slam dunk case for the Court to find the program unconstitutional. Unlike Everson, the state aid to religion in this case did not stop at the schoolhouse door. Instead, the sectarian classes were using school facilities (premises), minor janitorial services, etc. This is a prime example of the state unconstitutionally aiding the teaching of religion.! In fact, the use of school facilities was given prime importance by the court the fact that religion was being taught on school property (inside the schoolhouse doors) was viewed as very important. Zorach v. Clauson (1952) o In Zorach, the Court held that releasing children during school hours to attend sectarian classes outside the public school did not violate the Establishment Clause. o The majority argues that finding this program unconstitutional would be unreasonable. To support its argument, the majority sets out a laundry list of horribles (i.e. churches could not be required to pay property taxes, policemen who helped parishioners into their places of worship would violate the Constitution, etc.)! The majority points out that the traditions and practices of this country reflect that we are a religious people (i.e. In God we Trust on the currency). It argues that these religious traditions already exist, and the state is simply accommodating those preexisting religious beliefs (rather than encouraging religious beliefs, expressing a preference for those religious beliefs, etc.) Furthermore, the majority emphasizes the numerous ways in which we already allow religion into our public laws. Allowing the principle of separation to run roughshod with no limits would be showing remarkable hostility to these traditions.! 6

o Again, religion cannot be coercive. However, it should be accommodated. o Notes In Zorach, we see the Court use new language about accommodation. The Court talks about accommodating parental choice, so long as it is not coercive, which everyone understands to be unconstitutional. So then what is so wrong with accommodation?! The Court ultimately says that Zorach is more like Everson than McCollum.! At this point in the jurisprudence on religion and public education, the Court is still in agreement that church and state should be separated. However, the Court is struggling to define whether that line should be drawn.! In his dissent, Justice Black argues that Zorach is just like McCollum the fact that the religious classes in Zorach are held off school grounds (in contrast to McCollum, where the religious instruction occurred on school property) is totally irrelevant. The state is still using the power of its compulsory education laws to support religious instruction. Black argues that the state must respect religion, but it must be done on peoples own time. Estate of Thornton v. Caldor, Inc. (1985) o In Estate of Thornton, the Court struck down a state law providing: No person who states that a particular day of the week is observed as his Sabbath may be required to work on such day. An employee s refusal to work on his Sabbath shall not constitute grounds for his dismissal. The Court held that this mandatory, absolute deference to the Sabbath observer constituted an impermissible establishment of religion because the statute clearly advanced a particular religious practice.! Not only does the statute favor religious individuals v. non religious individuals, but also religion A (Sabbath observers) vs. religion B (non Sabbath observers). Non Sabbath observing employees may have all kinds of other reasons for wanting the day off, but the law is saying that those reasons are not valid, or at least are not as valid as the reason to observe the Sabbath. In this case, employees qualify for the benefit granted by the law (a day off) by passing a religious test, which violates the very core of the Establishment Clause. As soon as the state singles out one religion for more protection, it violates the Establishment Clause. o Is there a contrary argument that this law is a valid means of protecting religious conscience? Engel v. Vitale (1962) [Prayer in Public Schools] o Introduction! The 1st Amendment includes both a Free Exercise Clause, and an Establishment Clause. o In Engel, the New York Board of Regents had prepared a nondenominational prayer for use in the public schools. A local school board directed that the prayer be recited daily by each class, and this practice was challenged by a group of parents. o The Court held the practice wholly inconsistent with the Establishment Clause, stating neither the fact that the prayer may be denominationally neutral, nor the fact that its observance on the part of the students is voluntary, can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause.! The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non observing individuals or not. The Court goes on, however, to point out that this is not to say, of course, that laws officially prescribing a particular form of religious worship do not! 7

involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. o Note that if the Court had gone this route (direct vs. indirect coercion), the exact danger the Court was trying to protect minorities from would be more clear. But the Court goes in another direction namely, that the Establishment Clause says it is inherently evil for the state to do religion.! Is the Establishment Clause trying to protect the value of secularism, or the value of freedom of religion? Because if the Establishment Clause is trying to protect freedom of religion, then even if a state established religion starts out tolerant, that state endorsement creates a dynamic that causes a quarrel. And really, what we are trying to do is keep the peace in a religiously diverse society. o Notes Recall Everson and McCollum. The difference between these two cases was not just that the aid in Everson stopped at the schoolhouse door, and the aid in McCollum was in the form of really doing religion (teaching religion) on school grounds. The question in Engel, therefore, is whether the prayer statute at issue in the case is more like transportation, or more like school instruction.! Note that one of the great ironies in these debates is that proponents of prayer, religious education, etc. often need to argue that the program at issue is essentially not religion. Instead, proponents often need to argue that the program simply fits into the Zorach list of accommodations society makes to religion. Engel rejects this argument no matter how non denomination, prayer is fundamentally an invocation of the divine. So all opponents to these laws need to show is that prayer is religion. If so, then prayer clearly does not belong in public schools.! In hindsight, it is clear that prayer in public schools is particularly problematic because of context the Court feels that young and impressionable school age children may have difficulty distinguishing between prayer and actual instruction (especially when it is taking place on school grounds, led by a teacher, etc.) Abington School District v. Schempp (1963) o One year later, the Court in Abington extended the principles of Engel beyond state composed prayers, holding that the Establishment Clause prohibits state laws and practices requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord s Prayer by the students in unison.! The parents in favor of the law argued that the case was like Zorach they simply wanted to set aside time during the school day for approved, non sectarian prayer. It was clear from the text of the statute itself that no students were coerced or forced to participate (the parents were essentially projecting an image of themselves as a tolerant religious majority). The parents argued that if the state denied this practice, it would essentially be saying that prayer is not important enough to be included in the school day. This would amount to exiling prayer, in which case the state would no longer be neutral. Instead, it would be favoring secularism and turning religious believers into second class citizens. o The test [as to whether a practice violates the Establishment Clause] may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or! 8