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DOC 2 Lecture Notes

02.16.07
Castle Rock – looks at procedures of state
• MacKinnon – Issue of gender, domestic violence
• Law often reinforces gender differences
Griswold
• Narrow sense: married people wishing to purchase contraceptives, 1965
• Sexual revolution just beginning
• Constitution recognizes marital relationship as “zone of privacy”
o Entry of state in “zone of privacy” is severely, clearly limited
o Only under most limited and specific circumstances can state regulate
o People have right to make decisions about how they’re going to define their life
• Use of contraceptives and decisions concerning children are individual decisions
• Warren Court – Warren sat in majority, had Justice Douglas write decision
o Douglas wanted to make use of contraceptives fell under First Amendment
 Idea that free association was social, not just political (marriage)
 Douglas afraid of how “zone of privacy” would expand
o Justice Brennan – how should privacy be applied
 Should look beyond First Amendment
• Douglas comes up with “peripheral rights” and “penumbras”
o 1, 3, 4, 5 Amendments– series of “peripheral rights” when put together created whole concept of privacy
o 9th Amendment allows one to claim that Constitution includes right to privacy
o Creates penumbra of larger right to privacy
o 1st Amendment – right to association (marriage)
o 3rd Amendment – idea that home is a “zone of privacy”
o 4th Amendment – protection against search and seizure; body is private
o 5th Amendment – protection against self-incrimination; don’t have to tell personal
o 9th Amendment allows for embedding right to privacy into Constitution
• Marriage is form of expression, intimacy; connected to personal identity
• Most Justices agreed with the outcome, but not with argument
o Goldburg joined majority, but wanted something more concrete about where sense of privacy comes from
 Historical idea that goes back to Palko, privacy of marriage rooted in history of country (14th Amendment)
 Outright violation of 9th amendment to invade privacy of marriage
o Harlan referenced Palko and ordered liberty – 14th Amendment
o White worries that law creates inequities, question of the poor
• Black and Stewart – law was silly, but couldn’t find explicit privacy concept in Constitution, no reason to overturn law
Eisenstadt
• Whether an unmarried individual has same right of married individual to contraceptives
• Justice Brennan writes majority – wants to expand notion of personal privacy
o Classification of seeing married individuals different from unmarried individuals are unreasonable and arbitrary
o Arbitrary classification: married or unmarried, still an individual and rights don’t change
• In Griswold – adheres to individual
o Liberty of individual is central
o Everyone must have right to access and use
• Brennan – notion that privacy is personal, not contextual
o By making privacy personal, lays ground for Roe
Roe v. Wade
• Griswold and Eisenstadt gave groundwork for issue of abortion
• “Constitution is made for people of fundamentally different views” (Holmes)
o Blackmun believed court’s responsibility to look past traditions and philosophy
 What does Constitution say in silence of biases
 Point of Constitution to establish what law allows
 Protected rights of those who chose to act
• Looks at history of abortion
o Court can’t rely on tradition
o Problem of reliance on history – bans on abortion had to do with the fact that it was unsafe, difficult to provide medical service
• Decision based on neither ideology nor false notion of what Constitution is clear about
• Look at what Blackmun refuses to take up: question isn’t resolvable due to differences

DOC 2 Section Notes
02.16.07

Health vs. age question; not about abortion
Protect the life of the mother vs. minor status of patient/parental notification clause
Use Casey, Griswold, Eisenstadt
May or may not use the provisions provided; only give status of parental notification

How to approach:
• Look through evidence first, then construct argument
o List key terms, arguments, evidence, passages
o Pay attention to passages that could work for either sides
o Evidence – judicial reasoning, textual argument/evidence
Thesis/Plan:
• Full thesis, paragraph form
• Full forecast, paragraph
o Setting out main points, summarize
• 2 counterarguments, sentence bullet
o Set out evidence to support counterarguments, provide evidence
• Response to counterarguments, sentence bullet
o Related to counterargument specifically
o At least one piece of evidence
• Argument (Health vs. age)
o 3 sub-claims behind the reasoning for your stance, must be connected together
• Evidence for each sub-claim
DOC 2 Lecture Notes
02.21.2007

Vocabulary/clarifications
• Due process
o Rehnquist’s dissent in Roe – challenges concept of fundamental right as established in Roe
o Rights can be limited and abridged with due process
• Substantive due process
o If it is substantive, rights that are so fundamental that they cannot be abridged except under the rarest of circumstances
o Must be looked at under “heightened scrutiny”
o Right to abortion is a substantive due process right
• Procedural due process
o There exists a fair, equitable, open due process; equal treatment
o Can conflict with substantive justice
 Furman v. Georgia – criminal convicted of murder, much more likely to receive death penalty because he is African American
 Was procedure strictly followed, etc.
• If everything was done properly, under procedural due process, conviction is upheld
 In substantive terms, can have an unfair outcome
 Is it possible to have a procedure free of bias? Or must social factors always be taken into consideration?
Roe – “heightened scrutiny”
• Blackmun, Burger, Douglas, Brennan, Stewart, Powell, Marshall
o Right to abortion is a fundamental right of privacy, decision-making
o Begins by quoting Justice Holmes, that Constitution is made for people of fundamentally different views
o Question is: what does the law allow
o Observes history of attitude toward abortion – wide variations
 Court can’t rely on traditional and long held beliefs
 Can only look at the law up to that point on privacy
 Can’t be based on what Constitution is explicitly clear of and ideologies
o Interest of state
 State has obligation to regulate abortion to make it safe, protect life of mother
 Has interest that process is regulated during first trimester to protect the life of the mother
 Second trimester, regulation can be heightened to protect life of mother
• State may, if it chooses, begin to regulate more: done in hospital, emergency services, etc.
 After point of viability - state’s interest in potential life of fetus has “logical and biological justifications”
• States may limit and proscribe access to abortion as it chooses
 Abortion must always be available if life and health of mother is threatened
 Fetus is not a person as understood “within language and meaning of 14th Amendment”
• No case in history that suggests that fetus has same status as mother, not recognized as “persons in the whole sense”
 Brennan and Marshall - trimester system imposes too much rigidity, doesn’t allow for enough time to make decision
• Let medicine tell us when viability occurs
o Interest of woman
 Right to privacy found in either 14th or 9th Amendment is broad enough for a woman to decide if she wants an abortion
 Constitution is broad enough, but right is not unlimited
 Pregnant woman cannot be isolated in her privacy
o Interest of unborn
o Refuses possibility that this is a case about gender, is a case about privacy
 Wants to connect to Griswold and 14th Amendment right to privacy
 Wants abortion to be established as a fundamental right
• Stewart
• Rehnquist, White
Casey – “undue burden”
• Abandoned trimester system of Roe
• O’Connor, Kennedy, Souter
• Stevens
• Blackmun
• Rehnquist, White, Scalia, Thomas
• Scalia, Rehnquist, White, Thomas
Paper Clarification
• Roe establishes fundamental right to abortion in first trimester
• Casey upholds that notion, but allows for states to regulate abortions provided that they are founded on belief that mother’s safety is always taken into consideration
o Exceptions are emergency situations
o Upholds notion of informed consent of parent of a minor or can go do judicial bypass
• Fetus doesn’t have right as whole person, her life is at risk, fetus is before viability
o Parents decide that they have parental consent rights, sue doctor
• As a minor, should she have the same rights as a legal adult given the circumstances that it is an emergency situation, and that fetus does not have rights as a full person?
o Equal protection question
• Under emergency circumstances, do minors have same rights and choices as legal adults?
• Is there an undue burden on Ophelia?
o Use majority description of undue burden, compare to Scalia’s definition

Discussion Notes
02.21.2007
Lecture Notes
02.23.2007

Casey (1992)
• Plurality decision written by O’Connor
• Discusses precedent
o Law needs to be predictable
o Court has obligation to follow precedent, continuity over time
• Precedent overturned when
1. When it proves unworkable
2. It is obsolete, inconsistent with changes in the law
o Obligation to move forward as society changes
3. People have come to rely on it
o Decision becomes so fundamental that life is organized around it
4. Social conditions have changed
o Law is rendered irrelevant
• Roe has to remain underpinning of Casey
o Women have come to depend on Roe
o Choice must be guaranteed to women
o Participate equally with men
o Protects fundamental right to decisional privacy
• Substantive due process that limits state power
o Roe raises the right to decisional privacy to level of fundamental right
o Roe uses heightened scrutiny
• Casey downgrades right from a “fundamental liberty” to a “protected liberty”
• Court legitimizes expansion of state power in decision making of abortion
• Upholds Roe, but creates regulations that Roe would not originally have allowed
• Narrow Roe in a fundamental way
o Does away with trimester system established by Roe
 Trimester structure limited regulation
 Trimester structure created guideline to how far state’s interest can go
o Point of viability is retained
 Trimester system is elaborate and rigid, allowing almost no regulation
 Desire to regulate abortion, allows increased regulations
• “Undue burden”
o State regulation that tends to tip decision making process away from abortion
o Makes it impossible for a woman to exercise the right
o State regulation that serves a valid purpose, but makes it incidentally difficult to have an abortion cannot be found invalid
 Undue burden for some, but not for all
o Substantial burden
o Refers to nature of state regulation
Provisions in Casey
 Upholds 24-hour waiting period and consent requirement
o Must have consultation with doctor
 State permitted to enact measures that favor childbirth
 Parental notification and judicial bypass
 Spousal notification found unconstitutional
o Prevalence of domestic violence operates as substantial obstacle
o Husband has no enforceable right
 Emergency exemption
o All regulations are exempt when life or health of mother are at risk
 Information gathering constitutional as long as woman’s identity is confidential
Concurrences in Casey
 Justice Stevens
o Approves rationale of upholding Roe
o State may have interest in informing women about abortion
 Can’t claim that woman has right to choose decision, but allow state to convince women that abortion is wrong
o Mandatory delay poses a burden to decision-making of women
 Justice Blackmun
o 24-hour waiting period is demeaning to women
o State conscripts women’s body into state’s service
o Suggestion is that a woman, on her own, is unable to make her own decision
 State must protect her from making an informed decision
o Women who choose to have an abortion must be treated with same respect as women who choose to retain the baby
o Parental notification
 State must demonstrate significant interest in regulating abortion obtained by children that differentiate them from adults
Possible Answers for Paper:
• Uphold Casey
o Difficulty will be counter arguments, must take on other options as counterarguments
o Why isn’t this an “undue burden” for a minor, but it is for an adult?
• “Undue burden”
o Uphold parental notification, but because it is an emergency, restriction is an undue burden in this particular context
• Gender
o Ophelia should be able to control her reproductive life
o Why shouldn’t Ophelia be treated like a woman?
o Map backward into privacy cases
• EP
o Is Ophelia similarly situated as an adult woman?
o Issue of 14th Amendment rights


DOC 2 Lecture Notes
02.26.2007

• Justice Blackmun: What is the significant state interest in placing regulations on abortions for minors?
• Does the severity of the birth defects allow Ophelia to make a decision about whether or not the abortion should be performed?
o Must clearly define “undue burden” – refers to state provisions, what can state do or not do
o Is requirement of parental notification an undue burden
• In emergency situation, Ophelia needs medication now
o Should she be allowed to make a decision about the abortion now

Dissents in Roe and Casey
• Rehnquist in Roe – procedural and substantive disagreements
o Disputes Roe’s standing on basis that it is a hypothetical dispute
• Roe’s case originally brought before Texas courts 2-3 years before
o Liberties are not guaranteed absolutely, can still be deprived with due process of law
• Court is legislating via penumbra rights
o What kind of a liberty is decisional privacy?
• Rehnquist in Casey – disagrees on O’Connor’s argument concerning precedence
o Court doesn’t endorse any and all right to privacy
o Court downgraded right of abortion to protected liberty, heightened scrutiny to undue burden
o Should allow states to define own idea of what is allowed
o Criticizes gender rationale
• Women don’t have to have this decisional privacy in order to move forward
o Challenges undue burden
• Court can’t decide what is a substantial obstacle that is an undue burden
• Scalia in Casey
o What is the issue: is abortion a fundamental right protected by the Constitution
• Judges do not have a right to exercise their ideology
• Accuses O’Connor of having personal commitment to issue that is not upheld by a reasoned view of the Constitution
o Criticizes “undue burden” and points out contradictions
• Information given to woman to persuade her to carry to term should be seen as an undue burden
• Any regulation of abortion imposed by state to further their interests should be an undue burden
• Logically, provisions before viability do not hold up
• Court can create different levels of scrutiny based on undue burden
• Blackmun and Stevens in Casey – concurring opinions, but have dissents that are similar to Scalia and Rehnquist
o Questions logic of undue burden

Extension of Privacy Cases – Hardwick and Lawrence
• Idea concerning identity and self-expression, way in which law does have obligation to protect the way in which one defines and expresses oneself
Bowers v. Hardwick
• Michael Hardwick arrested in home upon discovery by police officer in Georgia
o Found engaged in homosexual sodomy
o Arrested and charged with violating Georgia law criminalizing sodomy
o Loses in state court
 Case initially dismissed based on 1974 case that upheld law (Doe v. Commonwealth)
o Appealed to 11th Appeals Circuit Court
 Reversed decision: there was a legitimate privacy argument under Eisenstadt
o Bowers, Attorney General of Georgia, appealed decision
• What constitutes a private act?
o Court struggles to define privacy without locating it in a particular place or set of actions, but more broadly about what it is
• March 1986 – case argued before the Court
• Hardwick’s defense
o not about homosexuality, was a privacy issue about what consenting adults could and could not do
 Use of contraceptives = sexual intimacy
 Court recognizes that sexual intimacy is important expression to adults
o Sexual privacy includes all sexual intimacy that are consensual, noncommercial, and not harmful
o Georgia’s law also referred to heterosexuals
 Is not a case about homosexuality
 Hardwick’s homosexuality is not relevant
• Bowers’ defense – Constitution doesn’t protect right
• Marshall and Brennan – sexual privacy in the home, nothing more
• Blackmun – privacy case
• Chief Justice Burger – Constitution did not guarantee right
• O’Connor – privacy had to be held to certain limits
• Stevens – question of basic liberties
• Powell – uncomfortable with overturning Georgia statute
o State can’t imprison him for his “afflication”


DOC 2 Lecture Notes
02.28.2007

Bowers (1986)
• General law criminalizing sodomy
• Decision written concerns a group of people, ideologies
• Majority decision written by Justice White
o Does Constitution infer a fundamental right for homosexuals to engage in sodomy
o Rights qualifying for heightened judicial scrutiny – fundamental or deeply rooted
o Homosexual sodomy is not a fundamental right
o Proscriptions against sodomy in “ancient roots”
o Georgia’s majority sees sodomy as immoral
• Majority: White, Burger, Powell, Rehnquist, O’Connor
o Community standards argument
o Based on moral foundation of Georgia
o Law should be extracted out of morality of a community (moral obligation)
• Justice Burger
o Looks at British common law, Blackstone
o Sodomy is “crime against nature”
o Homosexual behavior is more infamous and malignant than rape
• Dissent: Blackmun, Brennan, Marshall, Stevens
o Pulls discussion away from homosexuality
o Case about privacy
o Blackmun: case about most comprehensive of rights, most valuable right of civilized men – right to be left alone
 Like Holmes, revolting to accept law based on deeply rooted traditions
o Stevens: concurring dissent
 Looks at what statute allows and doesn’t allow
 1968 – law was broadened to include heterosexuals and homosexuals
• Excludes homosexual behavior between women
 Tailored law to own interests
 Privacy and intimacy part of one’s identity, protected by 4th Amendment
o Court has failed to see difference between laws protecting public and private
Lawrence (2003)
• Law criminalizing sodomy between two men
• Overturns Bowers explicitly and completely
• Majority: Kennedy, Stevens, Souter, Ginsberg, Breyer
o O’Connor concurring
• Dissent: Scalia, Rehnquist, Thomas
• Make-up of Court has changed: Kennedy, Souter, Ginsberg, Breyer
• Kennedy
o Court erred in seeing what the Constitutional question was
o Does Constitution protect intimate conduct in privacy
o Looks at history:
 Has history always proscribed homosexual sodomy
 Did the Court single out homosexuals in persecution
• Homosexuals were targeted in Bowers
o Issue is about whether the majority can use the power of the state to enforce their private views
o If majority feels so strongly, why are the laws fading, or aren’t being enforced in any fashion
o Echoes Griswold and Eisenstadt
o Requirements for overturning precedence
 Law is out of step with the time and aren’t enforceable
o Court has repeatedly protected autonomy of persons as a personal liberty, fundamental liberty as protected by substantive due process clause of 14th Amendment
o Law demeans homosexuals and anyone who engages in behavior
 Must address assumptions in detail of why Bowers is invalid
 Dismisses history, that Georgia’s law represents wide opinion, as precedent
 Bowers wasn’t correct when it was decided, isn’t correct today
o Push the Court to consider the place of the United States in the collectivity of democracy
 Most of the other democracies long ago decriminalized such behavior
 United States should be concerned with where it stands
• Can’t just look at what the Constitution allows, doesn’t address many issues faced today
• O’Connor’s concurring opinion
o Dislikes Texas law because it specifically criminalizes homosexual sodomy
 Clearly Equal Protection issue
 Law in Georgia was applied generally, doesn’t discriminate
• Scalia’s dissent
o Question of precedence
 People have come to rely on laws structured by Bowers, overturning Bowers will cause more issues concerning morality to come before Court
 Pieces together list of morality issues including bigamy, bestiality, etc.
o No right to liberty under the Due Process Clause
 14th Amendment allows states to deny rights with Due Process Clause
 Denouncement of fundamental right/liberty
o Disputes Kennedy’s recounting of history of sodomy statutes
o Move toward decriminalizing homosexual sodomy is a question of ideology
 Maintenance of criminalization is for legislature to decide
• Thomas’ dissent
o Echoes Justice Stewart
o Law is silly, but is a legislative issue not a Constitutional issue


DOC 2 Lecture Notes
03.02.07

Goodridge – state decision
• Considering whether same-sex couples should be allowed to marry
• Upholds the right of same-sex couples to be married
• Prior to 1969, Court never looked at marriage and whether there is Constitutional right to marriage
• Privacy cases allow for consideration of marriage being Constitutional right
• Civil component of marriage – must have license, must have state’s approval
o Historically, marriage has been economic relationship; marriage of assets
• Religious component of marriage
• What is legal conception of marriage
• Importance of marriage and what it symbolizes within context of a community
o Public, acceptance into community over long run, mark of legitimacy of relationship
• Material benefits alone are not sufficient
• Meyer v. Nebraska (1923)
• Skinner v. Oklahoma (1942)
o Court strikes down compulsory sterilization law
o Describes marriage as “fundamental to survival of the race”
• Loving v. Virginia (1969)
o Laws that forbid interracial marriage found unconstitutional
o Court begins to think about crafting right of marriage
o Freedom to marry has been recognized as personal right to orderly pursuit of happiness, vital to civil existence of individual
o Basic civil rights of man to choose own parents and be married
• Zablock v. Redtail (1978)
o Overturned restriction on divorced parents
 If divorced parent didn’t financially support previous children, not allowed to marry
o Privacy right to marry
• Turner v. Safely (1987)
o Prison inmates given right to marry
o Written by Justice O’Connor – extended Zablock
 Right to marry must be a respected expression of emotional support and public commitment
• Court recognizes that there are limits on rights
o How do you decide what limits rightfully are, how do you decide what a fundamental right and liberty
 Conservatives argue that due process clause should be backward looking, in sense of always looking to tradition, status quo culture
• Should be very difficult for state to make changes that cause fundamental consequences
 What does Constitution require or allow
 Can’t always adhere to what tradition dictates
Goodridge
• Justice Marshall defends position using quote from Casey
o Define liberty of all, not mandate personal moral
o Concept of personal liberty precludes governmental interference in personal and intimate relationships
• Addresses issue of civil marriage
o Wholly secular institution, does not require religious validation
o Three parties to civil marriage: two willing spouses, and state
 State determines terms of marriage: who may marry, benefits, obligations, liberties attached to marriage, terms for divorce
• Marriage as social institution of higher importance
o State has right to police marriage, determine terms of contract
o State has interest in encouraging and protecting stable relationships over transient
 Part of ordered society
• Tangible benefits of marriage
o Long-term financial and emotional security
• Marriage is a civil right due to tangible and intangible characteristics of marriage
• Uses rational basis test, no suspect class
o Determine whether there is rational basis for the law
Paper
• Casey allows parental consent except in emergency situation
o Explain why parental consent is constitutional
• Eisenstadt – arbitrary classifications, similarly situated individuals
• Gender issue – all women who face circumstance
o Look at why Roe is upheld, Griswold, and Eisenstadt
• Spousal consent – women carries brunt of burden
• No efficient access to judicial bypass, nullifies parental consent
• Should there be a broader sense of medical emergency
o Roe and Casey require that abortion be offered when life and health of mother are at risk; combine with gender that women carry the burden of raising children, not having control of when and how they have children affects participation in society
o Should she be forced to carry the pregnancy to term, and have no control
• Undue burden – only refers to action of state
o Does a particular act or provision of state effectively deny a woman the right to decide whether or not she wishes to have an abortion
o State has not made it clear that interest in abortion for minors differs from adults
o Parental consent vs. spousal notification


DOC 2 Lecture Notes
03.05.07

Goodridge
• Civic aspect of marriage – contract determined by state
• Religious aspect of marriage
• Arguments presented by department
o Marriage between heterosexuals provide favorable setting for procreation
o Traditional arrangements ensures optimal setting for child rearing
o Traditional arrangement can secure scarce state financial benefits
• Marshall’s counterarguments
o Notion that procreation is fundamental state interest is null
 Adoption, infirm may marry
 Intent to procreate is not a basis for marriage
 Procreation is not a requirement for marriage
o Marriage of only heterosexual parents does not further optimal setting
 No evidence to support that ban on homosexual marriages promotes heterosexual marriages
 State has ceded that homosexual parents can be good parents
 Isn’t who the parents are, but “status as outliers to marriage law”
 State interest is fairly limited in regards to interest in welfare of children
 State ban on homosexual marriage leads to perspective that homosexual marriages and relationships are outliers to social norm
 State reinforces social prejudices through marriage ban
o Fiscal rationale (state and local private resources)
 State argued that homosexual parents are financially independent and less financially needy than heterosexual parents
 Same-sex couples have children, other dependents
• Carry same financial burdens as heterosexual couples
 Financial need is completely irrelevant argument
• Marital benefits have never been means tested
 Financial status and position have never been legitimate argument for marriage
o Procreation, quality of marriage has never been requirement for marriage
o Contention that same-sex marriage would cause harm to society and marriage in fundamental way
 History of Constitution has always been an extension of constitutional rights to people once ignored
 Marriage ban presents deep hardship and burden
 U.S. vs. Virginia
o Commonwealth of Massachusetts has been moving forward to protect homosexual couples, long before Bowers and Lawrence
 Marriage ban doesn’t adhere to path that Commonwealth is taking
o Commonwealth of Massachusetts has no reason to maintain marriage ban

Justice Greaney’s concurrence
• Begins with establishing constitutional grounds for marriage as a fundamental right
o State may attach privileges and obligations to rights
o Right to marry is a fundamental right that cannot be limited, other than within boundaries of law
• Marriage ban creates statutory classification based on parents’ gender
o Gender discrimination – discriminating against chosen partner
• Compares statute against gays and lesbians to ban on interracial marriage
o “Strikingly familiar”
o Marriage ban on women and men do not make it benign
• Requires that we confront ingrained assumptions of the roles of men and women in marriage, must re-examine roles
o Defense of marriage is sexist, based on traditional roles of what women, men, and marriage are for
o Traditional definition of marriage is based on very traditional, and mistaken, ideas of gender roles
 Suggests what women and men are for: procreation and marriage

Dissenting opinion
• Dismisses idea that marriage is a fundamental right
o Level of review should be rational basis test
o Case then passes constitutional review
 Legislative issue – marriage statute furthers legitimate state interest in supporting optimal social structure
o Marriage is a creation of the state – can be defined by state
 State can decide that homosexual couples are not eligible for marriage
• Marriage has traditionally been based on procreation
• Isn’t an issue covered by privacy rights
o Marriage is a state issue, not a privacy issue
o Sexual privacy is protected, but marriage is not an extension
• Not an issue for court to decide, is a legislative issue

Gender issue
• Bias against homosexual couples is a sexual orientation bias
• Gender role bias exists
• Anachronistic to equation procreation with marriage
• Differs from interracial marriage ban
o Segregation laws were far-reaching (Black Codes, Jim Crow Laws)

Constitution cannot suit everyone, question is what does the law allow
Social institutions reinforce ideas that people have
2004 – 1456 instances of gay bashing reported to FBI


DOC 2 Lecture Notes
03.07.07

Final format
• short answers (10 out of 13, 3 or 4 sentences)
• two essays: comprehensive and central theme to DOC, one more confined to specific cases (gender cases, right to die, etc.)
• bring a blue book before end of next week to TA
• Tuesday, 8pm – final review @ Peterson108

Argument concerning connection between what law allows and the way social institutions are defined; who gets marginalized and how
• Recognized with respect to race (Plessy and Brown)
o Harlan and MacKinnon – intention of Plessy is to give the state a system of subordination that has deep and profound social implications
o Harlan – “can you be so lacking in candor” to believe that whites are equally offended
• Post-1954 and 1964 – no court would have looked at majoritarian views on race and deem it constitutional
o Political and social views on race were no longer acceptable
• Loving v. Virginia – Constitution does not allow subordination and marginalization of races
• Anti-discrimination laws changed norms about gender and race
o Court is ahead on cases of race, behind on cases concerning gender
• Changes in social institutions challenge the notion of relevance of differences
Social institutions and law continue to marginalize homosexuals
• Persistence in violence against homosexuals due to “justified” marginalization
Holmes - Constitution is meant for people of fundamentally different opinions and diverse backgrounds
• Individual sovereignty
Two questions that are relevant
• Are there differences that are constitutionally relevant
o As our understanding of jurisprudence has evolved over time, differences have become to be recognized
• What does the law require
o Is there a constitutionally relevant difference between heterosexual and homosexual marriage
o Requires expansion of right to marriage of homosexual couples
Long-abiding traditions don’t, on their own, make constitutional justification

Cases about statutory regulations concerning “right to die” and assisted suicide
Court upholds state regulations
• Cruzan - explicit expression of person, but gives some constitutional protection to the right to choose to die under certain situations
• Total ban on assisted suicide is upheld
New territory that is complex due to medical advances in technology
• Right to refuse medical treatment comes out of old British common law which considered unwanted medical treatment as battery
Theme of centrality of privacy to self-sovereignty in privacy cases
• Privacy cases begin to recognize private consciousness and decision making in sovereign construction of identity
• Cruzan – definition of what a life is, relationship between the person who lives the life and the definition of life
o Decision of how that life ends
• Difference between acts of omission and commission
o Choosing to terminate or refuse treatment and seeking suicide
 Seeking suicide is an active act
 Choosing to terminate/refuse treatment – return to natural path or state
o Law compels doctor to shut down machines if patient so chooses, but forbids provision of substances that can end your life
Why is suicide illegal
• Religious reasons for proscriptions against suicide
• Why does the state forbid suicide
o Economic rationale – severe debt
o Psychological






DOC 2
03.9.07

• Way in which state defines limits of program, state interest
• Cases that look at laws in each state
Cruzan (1990) – “right to die”
• 5 to 4 decision
• Rehnquist wrote majority decision focused on two things
o Whether individual has a constitutional right to refuse or terminate medical treatment
 Does Nancy have a right to terminate treatment that will lead to her death
o State’s interest with respect to protection of life
• Rehnquist - Rights to refuse treatment is longstanding right
o Under common law – treatment without consent considered battery
o Concept of “bodily integrity” – treatment of patient without consent is assault
• Establishes right to withdraw treatment that will lead to death with patient’s consent
• Question turns to standard of informed decision
o How do we know that it is her intent to withdraw treatment
o Who can speak for her or can it only be a clear statement from her
o State interest determines what will be required evidence
 State has direct interest in protection and preservation of life
 State has greater interest in protecting able-bodied people opposed to patients in hospital that are terminally ill
 State cannot define quality of life
 State has right to opt for status quo
• When patient can’t speak for themselves, maintain status quo
• She does have right to withdraw treatment, but she must have made a clear expression
• O’Connor’s concurrence
o Narrowness of state’s decision will cause state to refuse or not recognize living wills, proxy
o State will not feel obligated to accept judgment of proxy
• Scalia’s concurrence
o Purely legislative issue
o Right to die is nothing more than suicide
o Disputes bodily integrity argument
 Termination of treatment is suicide and is opposed to state’s interest
• Dissents more interested in privacy
o Argument that status quo can be neutral or bad
o From family’s perspective, process of degeneration is painful
• Steven’s dissent
o Choices about death touch core of liberty
o If this is a moral question, for those whose faith allows decision, is a private and personal decision
o Cruzan’s life has been abstracted from her person
o When Court defines life, doesn’t define a particular life
o State can’t unemotionally rest on status quo, which sees life in a sterile fashion

Glucksberg (1997) – assisted suicide
• Unanimous decision, concurrences within opinion
• All patients were terminal, died on own before case went to Court
o Doctors brought suit – unable to help patients that were certified terminal
• Court unwilling to say that state’s interest is always going to be more fundamental
o Does not say that assisted suicide is unconstitutional
• Does individual have the right to choose the time and the way to die
• Different from Cruzan – actively seeking doctor’s assistance in provision of lethal dose of morphine is unnatural
• Is there a difference between doctor’s willingness to remove a feeding tube and provision of lethal dose of medication
o Doctor obligated by law to withdraw treatment
Statutory question
• Is there a right at stake?
• Right to die is not a fundamental right, state may limit if it chooses
• Do the statutory provisions infringe on constitutional right
Technology
• Cases are particularly contemporary – advance of medicine
• Extent to which life is increasingly dependent upon medical technology
Terminal sedation
• Long histories of attitudes toward suicide, murder, Hippocratic oath
• Willingness of doctor to use sufficient dose of painkiller to control pain, but slowly allows a patient to slip into death
• American Medical Association endorses terminal sedation

[maryammmm]

[dandiwal_jatt]

DOC Final Review

Key Terms:
Katherine McKinnon and/or the dominance/non-subordination theory- everybody is equal under the law but the actual law subordinates women and places men in a dominant position. The ways in which laws are created actively preference men. Pornography is about violence against women. Law defines sex and gender in a way that reinforces position of men in society.
Rational basis-to apply the rational basis test is to ask whether a law bears some rational relation to a legitimate government interest
Police powers-the capacity of a state to regulate behaviours and enforce order within its territory, often framed in terms of public welfare, security, morality, and safety.[1] Police power is legally considered an inherent right, and is limited only by prohibitions specified in the constitution of a state, making it the most expansive authority exercised by a state. Related to English common law. Relevance: Lochner vs. NY case where the question was whether or not they were allowed to regulate bakers working hours.
Veil of ignorance ??????????????????????
Civil liberty- protection against government
Civil right-have an affirmative right to do and the government must protect you
Strict constructionalist-look at what it says, not necessarily back to the founders. They allow the possibility of change but say that Congress should take care of that.
Activist/principled view-“majestic generalities” require interpreting and consideration of social fact. The Constitution is a living document.
8th amendment (cruel and unusual punishment). Important in deciding whether or not you should be able to overrule precedent.
Undue burden- refers only to actions of the state
Stare decisis- “let the decision stand”, meaning that legal principles already established in earlier cases should be accepted as authoritative for later cases—accepted as precedent
Proportionality- definition: penalty has to fit the crime and the person who committed the crime. Case: Roper-minors being executed-death penalty. Minors have a higher likelihood of learning from their crimes than from capital punishment. Question of whether or not the minor can understand their decisions and the consequences.
Decisional privacy- cases: Casey, Roe. Personal privacy over making decisions i.e. abortion. Significance- if they have permission to have an abortion, contraception, child-rearing, sexual privacy. Debate over where you find privacy in the Constitution. Griswold, Eisenstadt.
Scrutiny/classification chart
Level State Interest Relation of Means
Normal-econ/commercial legitimate rational basis
Intermediate(gender) important substantially required
Strict-suspect classes compelling necessary
Relevance: Buck v. Bell-case about upholding a statue that instituted compulsory sterilization of the mentally retarded “for the protection and health of the state”. Lochner-labor had no right to expect protection. Bakke-race as a classification.
Facial argument-applies to all cases in a category. i.e. bans on all kinds of assisted suicide.
Symbolic speech
Peripheral rights- broader sense than exactly what is said in the 10th amendment. Hangs off of the stated ones that are there. 9th amendment-protection of unenumerated rights. Relevance: Eisenstadt-married vs. unmarried. Roe-abortion or no.
Heightened scrutiny
Race plus- from the Bakke case. Powell that talked about it. Race is a factor in determining admissions but cannot be the only factor. Gets rid of the quotas. “Harvard plan”
Insulating factor-race not allowed if an insulating factor.
Rauls theories- justice as fairness. Comprehensive doctrines/reasonable pluralism. Two Principles of Justice and Difference Principle. You begin with stating the principles of justice-must be the foundation. Sets of ideas help us decide what is good and right. Reasonable pluralism- works hard to accommodate differences among our comprehensive doctrines.
Justice as fairness-two principles. 1) each person has equal claim to fully adequate scheme of basic rights and liberties. 2) social and economic equalities must satisfy those two conditions-must be attached to positions available to all, they are to be the greatest benefit to the least advantage
Substantive justice-Relevance: Gideon v. Wainright-right to an attorney. Miranda v. Arizona-state your rights. ??????????
Difference theory-Relevance: Reed v. Reed-Idaho law preferred that men be executors of will rather than women-not constitutional. Frontiero v. Richardson-differential military benefits for spouses (gender is a suspect class). Craig v. Boren-different drinking age. U.S. v. Virginia-requires to admit women and no comparable place for women
Terminal sedation-willingness of a doctor to use a painkiller that limits pain and slowly allows the patients to die. Relevance: Cruzan.




Essays:
Short: changes over time, Constitution as a living document-Roper-international opinion as guidance. Kennedy-evolving standards of decency. U.S. only Western democracy that has death penalty.
Lawrence-attitudes towards homosexuals. Cruzan- right one has to refuse medical treatment, looking back in time to British common law to come up with a decision. In Roper and Lawrence-looked to come in alignment with other countries. Glucksberg-the Dutch have assisted suicide-look at them as a way not to be, lead to problems with abuse. Plyler-immigration rights.
Long: Plessy legitimized segregation. Plessy and Brown talking about racial categories. Frontiero, Craig, Virginia-Gender cases. Sexual orientation-Bowers and Lawrence. Plyler-immigrant status
Not going to show up: Casey, Roe, Brown, Plessy, Eisenstadt, Griswold

[5jabi420]

too...
much....
information....

OH NO MY HEADS GOING TO EXPLODEEEEEE!!!!!

[LostinHollywood]

Originally Posted by 5jabi420

too...
much....
information....

OH NO MY HEADS GOING TO EXPLODEEEEEE!!!!!

does the 420 in your name signify 4/20?

[dandiwal_jatt]

How laws and social institutions create classifications of people….

DEATH
o Roper…death penalty
o People should be able to decide how they die
o Law interferes in decisions about how to live/die
o Proportionality..crime fits punishment
o Black ppl sentenced more to death penalty than white ppl
o Death qualified juries-jury that believes in death penalty
o

Second essay
o Evolving standards (living constitution over changing society…
o Before even kids were sentenced to death

Starting fresh…

o Dominance and nonsubordination theory- Mckinnon dominance of men
o Even though the law attempts to play down the paternalistic society, there’s still gender discrimination (Frontiero v. Richardson) (VA v US)

o Sexual Orientation

o Bowers, Lawrence and Goodridge
o Bowers defined sodomy..
o Originally a sodomy case…b/c homosexual sodomy case
o Privacy wasn’t a fundamental law until Lawrence
o How did Bowers create classification in…
 Laws used to target homosexuals.. as
 Law (instit) creates a stigma on homo
 Affects morals (right/wrong)
o Goodridge …affected samesex marriage…lifted ban
o Institution of marriage
o Expanding the law to include doesn’t effect institution of marriage
o Without marriage…relationship not legit
o Top of 380…inherently unstable and unworthy of respect (if we allow ban)
o Gay ppl (not a suspect class)


o Right to Die Cases…..who has the right to die (not just old ppl. ) what about old ppl? Classification between old and young

o Plyler, san Antonio, Roper…Immigration

o Classification that creates a stigma

o

o Loving v VA (marriage classifications



Page 3rd paragraph 376, Marriage institution as defined by the law includes the financial benefits, obligations

Comprehensive Doctrine: set of ideas that define our conception of right and wrong

Factions: citizens untied by a common interest, not necessarily a minority,

Penumbras: unenumerated rights covered by law, implied through the defined laws

Federalism foundations of our government, a political system where authority is divided between central authority and smaller units of government.

Lochner v New York: the right to freely contract, the state has no interest in the right to contract

Palko: Ordered Liberty:
The laws and social institutions attempt to incorporate ordered liberty

Ordered v ordered liberties: “Veil of ignorance”/”Ordered Position” – hypothetical situation where status is unknown, creates equal law

O: positive liberty, rights to speak out politically, fundamental rights
O: negative liberty, regulations and procedures, laws that limit rather than protect, laws that take away opposed to protecting

Bakke: (affirmative action):
Race +: race can be used as an additional factor, not as a deciding factor

Soft Variables (related to Race +): the overall qualities that an individual brings to a school (used to decide on admissions), defined in Grutter

Education (affirmative action laws) defines people, creates classifications

Korematsu: the denial of rights to a specific group, (Japanese)
Racial guilt as a classification
O’Connor, in the name of national security, national security overrides liberties
(In war, law is silent)


Bradwell: Women not equal to men
Difference Theory: women are different than men in important and valuable ways, women should be encouraged to stay at home, it is a woman’s destiny to stay at home
P212: Men should be protectors for women

Muller: Female worker worked over 10hrs, argued that woman couldn’t based on difference theory

Craig: Classifying women as a accessory
Intermediate scrutiny test introduced: this test used for all gender cases

Frontiero: Women had to prove dependency to receive military benefits, while men did not have to prove their wives dependency
Stigma: classification women are dependent, men are independent



Right to Die

Cruzan: right to die is not a fundamental right under the rational basis test
Right to die is a protected right, not fundamental, protected means that it can be regulated by the state

Living constitution, right to die and the states restriction on it relates to advances in medical technology,

The willingness of the court to relate british common law (roper, right to die cases) to the living constitution

British common law is much older, larger base of laws than our own, used as a reference in deciding on our constitutions provisions (laws)

International standards used as a guide to create or define our own laws.

Glucksberg and Netherlands which allows the right to die, looks at the Netherlands allowing the right to die and the problems that it creates

Evolving standards of a maturing society


Plyer: Texas didn’t want to pay for educations for kids with questionable citizenship
Questionable citizenship creates a suspect class (suspect class: Rational basis test used, groups discriminated against, a distinct and insular minority (p99footnote 4 Caroline Products))

If they are undocumented are they really there, are they people, are they Americans, are they important

They have to be a person to be a citizen, if they are not citizens do they not exist as persons