SAME-SEX MARRIAGE--SUMMER 1998 QUESTION I

AND BEST ANSWER

QUESTION I (suggested time: ninety minutes)

Surveys indicate that while 27% of American households consist of two heterosexual parents with one or more children, two-thirds of gay men and 70% of lesbians would marry if it were legally possible. Approximately 30% of gay men and 46% of lesbians have exchanged rings or conducted a commitment ceremony.

Helen and Wanda, who had always lived in Hawaii, obtained a marriage license and were married there on May 9, 1998. The pastor who performed this marriage (valid under recent decisions based upon the Hawaii Constitution) promptly and appropriately filed the marriage certificate, with the State of Hawaii, where it is archived as an official state record.

On June 1, Wanda's employer offered Wanda a higher-paying position at its Minnesota headquarters. Wanda and Helen agreed that Wanda should accept this promotion because Wanda's father lives in Minnesota and Helen has friends in Minnesota and an employer which would transfer her to its Minnesota office. Helen and Wanda moved to Minnesota on June 15.

On July 1, Wanda was struck and killed by a car as she crossed a street in downtown Minneapolis. Wanda died without a will. Helen petitioned for probate, and claimed Wanda's estate under Minn. Stat. § 524.2-102, which awards the entire estate to a "surviving spouse" if the decedent leaves no descendants. Wanda's father, Frank, countered by claiming under Minn. Stat. § 524.2-103, which awards the estate to a decedent's surviving parent if the decedent leaves no surviving spouse or descendants. Frank claims that Helen is not a "surviving spouse" because of paragraph (b) of Minn. Stat. § 517.03 subd. 1, which specifies:

(a) The following marriages [entered into in Minnesota] are prohibited:

(1) a marriage entered into before the dissolution of an earlier marriage of one of the parties becomes final . . . ;

(2) a marriage between an ancestor and a descendant, or between a brother and a sister . . . ;

(3) a marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins . . . ; and

(4) a marriage between persons of the same sex.

(b) A marriage entered into by persons of the same sex, either under common law or statute, that is recognized by another state or foreign jurisdiction is void in this state and contractual rights granted by virtue of the marriage or its termination are unenforceable in this state.

Paragraph (b), which marks the Minnesota Legislature's first endeavor to make void in Minnesota a marriage valid in the state where it was entered, was enacted in 1997, following the United States Congress' 1996 enactment of 28 U.S.C.A. § 1738C (the "Defense of Marriage Act" or "DOMA"). DOMA specifies that "No State . . . shall be required to give effect to any public . . . record . . . of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . , or a right or claim arising from such relationship."

In enacting DOMA, Congress relied upon the Full Faith and Credit Clause of the federal Constitution. The Full Faith and Credit Clause requires that "[f]ull Faith and Credit shall be given in each State to the public . . . Records . . . of every other State" and specifies that "Congress may by general Laws prescribe . . . the Effect" of one state's records in another state. DOMA marks the first time that Congress has exercised its power "to prescribe . . . the Effect" of records by prescribing that a particular kind of state record need not be given any effect in another state.

Please discuss in full detail all constitutional law liberties issues under the federal Constitution that are raised by this dispute between Helen and Frank. Although you should assume for present purposes that DOMA falls within Congress' power under the Full Faith and Credit Clause, you should discuss whether that exercise of power violates any of the federal Constitution's limitations, as well as whether Minn. Stat. § 517.03 subd. 1(b) does so.

BEST ANSWER

Wanda must argue that Minn. Stat. § 517.03 subd. 1(b) and DOMA violate her substantive due process rights and equal protection rights afforded by the Fourteenth Amendment of the U.S. Constitution. These arguments will most likely fail.

The Fourteenth Amendment states in part that no state shall make or enforce any law which shall deprive any person life, liberty or property without the due process of law. The Fifth Amendment also has a Due Process Clause which binds the federal government.

The Court has established a two-tier approach to address substantive due process challenges. The first tier involves substantial burdens on fundamental rights. If the attacker (Helen in this case) can show that there is a substantial burden on a fundamental right, then the government has the burden of showing that it is necessary to serve a compelling interest. This is referred to as strict scrutiny judicial review and one must determine, accordingly, first if there is a fundamental right involved, second is there a substantial burden on that right, third what are the government's interests and are they compelling, and fourth is the burden necessary to serve the purpose. If the government could use less burdensome means, it must do so and the necessary requirement would not be met.

The second tier involves issues regarding non-fundamental rights. For this, the attacker must show that there is harmful government action not rationally related to a legitimate purpose. It is important to note that the desire to harm an unpopular group is not a legitimate purpose, but more on this later. This form of review is called rational basis review and it gives great deference to the government. Therefore, regulations which fall into this tier usually are upheld.

The first thing that must be done when analyzing a substantive due process problem then is to determine whether a fundamental right is involved. Rights concerning individuals' privacy and autonomy are usually deemed fundamental, such as rights concerning contraception, marriage, education of children, intimate activities of married couples, abortion to some extent, and the right to decline unwanted medical treatment. Although rights of privacy are not explicit in the Constitution, several Bill of Rights guarantees protect privacy interests and have been held to create a penumbra, or zone of privacy. The Court has considered rights which fall into this zone as fundamental.

A right falls into the zone of privacy and thus is fundamental when it is "implicit in the concept of ordered liberty" and it is a right "deeply rooted in the nation's history and traditions." Also, to determine if a right is fundamental one must evaluate the right in light of both historical and current acceptance, as well as its function. Justice Scalia also emphasizes that if it is important to determine how broadly this right will be viewed. (Michael H.). Thus, in the case at hand, do we view it as the right for homosexuals to have recognized marriages, or the right of consenting adults to have recognized marriages?

Helen must argue that her right to be married to Wanda was fundamental. Clearly, the government is placing a substantial burden so if she can prove the right fundamental, strict scrutiny will apply. This, however, is unlikely. After all, states are allowed to ban homosexual sodomy. In Bowers v. Hardwick, the Court held that "homosexual sodomy is neither implicit in the concept of ordered liberty, nor deeply rooted in the nation's history and tradition." The Court may apply by analogy the right to ban homosexual sodomy to homosexual marriages. At first glance then, it appears that neither of the government regulations at issue here will demand strict scrutiny.

In 1996, however, the Court possibly established a new test for reviewing regulations burdening homosexuals. In Romer v. Evans the Court held anti-gay legislation not legitimate since it was motivated by animosity or hostility. The majority struck down an anti-gay Colorado measure and possibly applied a stronger form of rational basis review--rational basis with bite, perhaps. The Court held that the "bare desire to harm a politically unpopular group cannot constitute a legitimate . . . interest," and held that "a state cannot so deem a class of persons a stranger to its law." Helen would have a better chance of winning under this standard of review.

Getting back to fundamental rights, Helen must argue that marriage in general is a fundamental right. Which it is, but not for homosexuals. This argument most likely will not succeed. But if it did, the state would have to show the measure was necessary to save a compelling interest. If the interest is to burden homosexuals, that probably wouldn't be compelling.

Most likely this case would fall into rational basis review. If so, Helen would likely lose since all the government has to do is have a legitimate purpose. If the government has a purpose other than burdening homosexuals, Helen is out of luck. If Helen can prove that there is no other purpose she will win. It is debatable whether encouraging morality is a legitimate purpose, but giving the make-up of the current Court, I believe Helen will not have a successful substantive due process claim.

Helen next must attack the regulations by proving that her equal protection rights were violated. The Fourteenth Amendment also provides that no government shall "make or enforce any law which shall. . . deny to any person. . . equal protection of the laws [or the protection of equal laws]." The Equal Protection Clause applies to the federal government via the Fifth Amendment.

There are a few ways to make out an equal protection challenge. The first, and certainly the most difficult for the attacker, is for the attacker (Helen) to show that the classification (homosexuals) is not rationally related to a legitimate purpose. This is called rational basis review.

In order to get heightened review, Helen must show either that the purpose of the government's action was to discriminate on the grounds of a suspect or quasi-suspect classification, or that the government action substantially burdens a fundamental right.

The rational basis test is used when there is not a suspect class, quasi-suspect class, or substantial burden on a fund. right. The attacker must show first that there is a classification and second that the classification is not rationally related to a legitimate purpose. When rational basis review is used, usually the government actions will be upheld.

When there is a suspect class involved, strict scrutiny will be used. The classic example of a suspect class is race, though national origin and religion are also considered suspect classes. One way of looking at suspect classes is that historically they have been victims of discrimination (this is in Helen's favor). Another way of determining whether members of a class are suspect class is by looking at if they are a discrete and insular minority, both in the physical and political sense (this is also in Helen's favor). The Court, however, has not gone so far as to say that discrete and insular minorities are automatically members of a suspect class.

With suspect and quasi-suspect class a discriminatory purpose, or what the Court refers to as individual discrimination, must be present in order to trigger strict scrutiny. Sometimes a statute discriminates on its face. More frequently, however, a statute doesn't discriminate on its face and the attacker must prove that it discriminates as applied. An attacker can make a prima facie case that discrimination was a motivating or substantial factor by using the following types of evidence. (Note that discrimination doesn't have to be the only purpose, simply a substantial or motivating purpose). An attacker can use circumstantial evidence, which would consist on proof of disparate (disproportionate) impact on the minority. Also an attacker can examine the sequence of events leading to the decision to make the classification. If there were procedural or substantive departures from the norm, or if the system is susceptible to abuse, a discriminatory purpose may become evident. An attacker may also use direct evidence to show a discriminatory purpose.

Unfortunately for Helen, Washington v. Davis tells us that disproportionate impact by itself can never prove discriminatory intent. The Minnesota statute, however, discriminates on its face, explicitly treating same sex marriages differently than heterosexual marriages. Accordingly, if Helen can prove she is a member of a suspect class, strict scrutiny will apply.

Lets assume that homosexuals are found to be a suspect class, which they probably wouldn't be (maybe quasi-suspect). Minnesota can try to produce a sexual preference-neutral explanation for the classification. If Helen fails to prove the explanation is pretextual, the statute will be constitutional. If the state can't give an adequate sexual preference-neutral explanation, the state can try to show that the same decision would have occurred without the discriminatory purpose. If the state can do this, the statute is constitutional. If the state cannot do this, it must prove that the classification was necessary to serve a compelling interest, that is, it must satisfy strict scrutiny.

It is hard to say what the state's interest is in enacting the statute. Perhaps to promote morality or traditional marriages. These do not seem like compelling interests. Homosexuals, most likely though, wouldn't be found to be a suspect class. They are probably a discrete and insular minority and have suffered some discrimination (but not necessarily by the government). In Romer though, the Court may have had the opportunity to declare homosexuals as a suspect class and the Court chose not to. Perhaps it didn't address the issue since it stated the regulation of issue didn't even pass rational basis review. I think the Court, though, would have stated it was a suspect class if it wanted it to be subject to strict scrutiny in future cases.

The government action at issue here will most likely be reviewed under the rational basis approach, perhaps with bite. So, as long as the state is trying to burden an unpopular group, the regulations will stand. I think the courts will allow the states to deal with the issue of homosexual marriages as they please. At least for a while. Justice Scalia's view that the states are the place for experimentation and should be used as "laboratories" just might be sound. If Hawaii and Minnesota want to have different approaches, let them.

The other equal protection issue here is the fundamental right to travel. States may not deny basic necessities of life by requiring residency requirements. The state really isn't doing this; it is simply not recognizing something another state did. Plus, if divorce is a non-necessity, maybe marriage is too.

Helen also has a farfetched attempt at gender discrimination--the Minnesota statute burdens all homosexuals because if one member was of the other sex, they wouldn't be burdened. This isn't a very good argument. But it would fall under intermediate scrutiny. The attacker has the burden of showing that there is a classification on the basis of gender. Then the government has the burden of proving that it is substantially related to an important purpose. U.S. v. Virginia heightened scrutiny even more for gender. The government must demonstrate on exceedingly persuasive justification for the class, the justification must be genuine, not hypothesized or incidental after the fact and it must not rely on over-broad generalization. Helen, however, would have a very hard time proving there was a class based on gender.

All of Helen's attacks would most likely fail. Her best ones though stem from the perhaps heightened scrutiny for homosexuals following the Romer decision. Even if the Court was using bite, it still used rational basis review, which most likely would leave Helen without a valid claim to Wanda's estate.

GANG-RELATED APPAREL--SUMMER 1998 QUESTION II

AND BEST ANSWER

QUESTION II (suggested time: ninety minutes)

During early 1998, David Dickens and Ralph Riley each began wearing white plastic rosaries on the outside of their shirts as a means of displaying their Roman Catholic religious faith. (A rosary is a string of beads used in counting prayers; the Roman Catholic rosary has a crucifix attached. Rosaries are generally carried or held in one or both hands by Roman Catholics; it is unusual for a Catholic to wear a rosary.) Dickens and Riley wore rosaries for several weeks at Mitchell Public High School without comment from school administrators. Dickens and Riley are not members of any criminal gang, and during the period they wore the rosaries, they were never approached by gang members because of the rosaries. Nor did their display of their rosaries cause any disruptions or altercations at the school.

On or about March 6, 1998, police officer Carol Cagney approached Dickens and Riley at school and advised them that they could not continue wearing their rosaries outside their clothing, but that they could wear them inside their shirts where they could not be seen by others. Cagney told Dickens and Riley that the school had identified rosaries as "gang-related apparel," and, therefore, their display at school had been prohibited. Cagney did not accuse Dickens and Riley of being gang members or wearing rosaries to identify themselves as gang members. Rather, Cagney told Dickens and Riley that by prohibiting them from displaying their rosaries, she was acting out of concern for their safety.

The school district's dress code prohibits the wearing of "gang-related apparel . . . in school or at any school-related function." The dress code is outlined in a Student Handbook. To inform students of the parameters of the prohibition on gang-related apparel, the Handbook states:

A sample list of specific items that law enforcement agencies consider gang-related is as follows:

1. Oversized apparel, including baggy pants that are worn low on the waist; overalls with one strap unfastened; pants that are cut off below the knees and worn with knee socks. (Pants should fit at the waist and have properly sewn hems.)

2. Any attire that identifies students as a group (gang-related) may not be worn to school or school-related activities.

3. Baseball caps, hair nets, bandanas, sweatbands.

Any student may bring an item in a brown paper bag to the principal's office for a determination whether it is gang-related apparel.

Warren Woodman, the principal, says that the school has had problems with gang members engaging in threatening, intimidating, and violent conduct towards other students. He says that there have been gang-related fights on school grounds, and instances where students were coerced to turn over lunch tickets and money to gang members, and to step aside as they approached in a hallway or on a sidewalk. Woodman says that because gangs frequently change their identifying symbols, the list of prohibited gang-related items in the Student Handbook is only meant to be a representative list. Woodman has available for distribution to students and parents various materials prepared by the police department that contain information on gangs and gang-related apparel. However, none of these materials contain a list of specific items the school prohibits as gang-related, and none of these materials mentions rosaries.

Cagney is the local police department's "Gang Liaison Officer." In her position, she investigates gang activity in the schools and is responsible for determining what is and is not "gang-related apparel." Once Cagney determines, based on her investigation, that a particular item is "gang-related," Cagney informs Woodman who then decides whether to prohibit the item. While the evidence showed that the police department, and Cagney in particular, heavily influences the administration's determination of what should be classified as "gang-related apparel," the police department does not have the authority to enforce the school's dress code. Rather, the principal may enforce it by warning, suspending, or expelling a student who violates the dress code.

Cagney says that she classified rosaries as gang-related apparel after receiving information that members of the "Dukes," a gang operating within school district, were wearing rosaries as identifying symbols. The information upon which Cagney acted included a statement in February 1998, from an admitted member of the Dukes who told her that he was wearing rosaries as a gang symbol. Later in February 1998, Cagney stopped a vehicle that was off school grounds and contained five members of the Dukes for violating traffic laws. Two of the individuals in the car were wearing rosaries. On one occasion, Woodman observed three students known to be gang members wearing rosaries at school and asked them to stop wearing the beads outside their clothing. Based upon these incidents, Cagney, and subsequently Woodman, determined that wearing rosaries as a necklace outside the shirt should be prohibited under the school district's ban on gang-related apparel. Pursuant to that policy, Cagney and Woodman prohibited, and continue to prohibit, Dickens and Riley from wearing their rosaries outside their shirts on school premises. They have not taken action with regard to students who have been wearing gold or silver necklaces that have attached a cross, a Christian fish symbol, or a Star of David.

Please discuss in full detail all constitutional law liberties issues under the federal Constitution that are raised by this situation.

BEST ANSWER

Dickens and Riley have a strong case to continue wearing rosaries on many grounds. Dickens and Riley (Dickens) should attack the school's/police's action on the grounds of Freedom of Religion, Freedom of Expression, and Equal Protection (EP).

Under Freedom of Religion, Dickens can attack using the Establishment Clause or the Free Exercise Clause.

For the government action to survive an establishment attack, it must pass the Lemon three-factor test or the Marsh established tradition test and, due to J. O'Connor's swing vote, it must not flunk the endorsement test. The government action passes the Lemon test with relative ease. The government action has as its purpose the reduction of gang-related violence in schools, which is very secular. The action's primary effect is to limit gang apparel, and it only incidentally restricts the wearing of rosaries. And by virtue of its incidental restriction it does not foster excessive entanglement with religion. In fact the school policy makes no specific mention of religion in any manner.

The school policy may also pass the Marsh test easily. The policy seeks to limit violence on school premises and surly the framers didn't intend to invalidate a school's power to regulate violence on its premises. However, the Marsh test is narrowly construed to the actual practices of the founders and thus is not applicable.

The school policy also passes O'Connor's endorsement test. A reasonable observer would see that such a policy is meant only to curb school violence. It is an extreme stretch for the reasonable observer (unless he is an attorney perhaps) to see that bringing gang-related apparel causes the school to take a position on a question of religious beliefs. Therefore, an establishment argument will most likely fail.

Dickens' free exercise claim is much stronger and should succeed even though the school policy does not overtly regulate or compel affirmation of a religion. Nevertheless, the policy does regulate religious expression and must pass strict scrutiny if it is (1) not a neutral regulation, (2) the regulation is not generally applicable, (3) the conduct is also protected by a fundamental right, or (4) the regulation denies a government benefit because of non-criminal conduct. On these facts only 4 does not apply since it is currently limited to unemployment compensation. The policy is not neutral since it restricts religious conduct, i.e. wearing a rosary, even if it is not the normal religious conduct. The policy also is not generally applicable since it bans only rosaries and not other religious ornaments, such as a cross necklace and the like. And the conduct also is covered by the fundamental rights to free expression (more later). If the school policy does not fall in one of the four above categories then the rational-basis standard applies and most likely Dickens' claim will fail.

Dickens' next claim is under freedom of expression. This First Amendment right applies because Dickens' conduct, i.e. wearing rosaries, may qualify as speech. Dickens clearly intended to communicate their Catholicism by wearing rosaries, just as Jews intend to communicate their adherence to Judaism by wearing the Star of David. And Dickens may be reasonably understood to communicate their Catholicism by wearing rosaries. This point is strained by the unconventional method of displaying the rosaries, but anyone reasonable person who knows about rosaries would recognize them or Dickens and understand, although the school does have wiggle room on this point.

If the conduct is speech, it is protected speech since it is religious speech. However, the school policy does not make a content-based restriction. Dickens may wear their rosaries just not outside their clothing as long as they are in school, which is merely a time, place, and manner restriction. Therefore, the school's policy is only a non-content based restriction.

A non-content based restriction must pass the modified O'Brien test of being (1) narrowly tailored, (2) to serve a significant interest, (3) which leaves adequate alternatives. The policy may in fact be narrowly tailored since it only bans gang-related apparel; the restriction on the rosaries is incidental. And the policy serves to limit violence on school premises, which any parent would agree is a significant interest. The policy even allows Dickens to continue wearing the rosaries under their clothing and perhaps even holding the rosaries in their hands. So the policy seemingly leaves adequate alternatives and thus is not an invalid non-content based restriction.

However, the policy may be a prior restraint on Dickens' expression. Dickens must bring the rosaries in a paper bag to the principal to be sure they can wear the rosaries. So the school policy acts as a prior restraint, and the facts show that Dickens wore the rosaries for several weeks without incident. However, if rosaries are indeed gang apparel then the school may be right in thinking they will surely result in direct, immediate, and irreparable harm to the students. This standard is very high and did not even work for the federal government for in the Pentagon Papers case so the school will be in a bind fighting the prior restraint argument.

Also schools are public property and as such must allow free expression. At best for Dickens the school is a designated public forum, yet that type of forum only reaches the modified O'Brien test for non-content based restrictions and as noted above the school has an excellent chance to pass that test. At worst the school is other public property, in which case the policy must pass the rational-basis standard which is nearly impossible due to its great deference to government action.

The saving argument for Dickens may be that the school policy is overbroad. As long as wearing rosaries is speech, it is protected expression. And the school policy applies to any attire that identifies students as a group. However, the policy does state specifically gang-related, so perhaps a better argument is vagueness. Dickens has no way of guessing that the policy applies to rosaries. And clearly Dickens, since he is not a gang member, does not fall within the hard core of the policy.

The school policy may also violate Dickens' equal protection rights. Because Dickens is the member of a religious group, especially one that has historically been discriminated against in this country, they fall under a suspect classification. Dickens wearing rosaries make them a physically "discrete and insular minority" (Caroline Products fn. 4). Therefore, the school must pass strict scrutiny.

First, Dickens can show a prima facie de facie case of discrimination. The circumstantial evidence regarding Cagney enforcing the policy on Dickens shows such a case. The records states that Cagney has no authority to enforce the policy only the principal does which is a serious departure from the norm. After the prima facie case is made, the school will assert that the classification is gang-related apparel not religious apparel. The school will also assert that it would make the same decision regardless of the religion aspect, as it did in banning other apparel. At this point, the school must pass strict scrutiny.

This may be an instance where the government fails strict scrutiny. With the evidence that Dickens wore rosaries for several weeks without incident, it will be difficult for the school to show that banning wearing rosaries outside clothing is necessary to serve the admittedly compelling interest of preventing violence on school premises.