SPRING 1998 CONSTITUTIONAL LAW LIBERTIES (KIRWIN)
BEST EXAM ANSWERS
BEST ANSWER TO QUESTION #1
The first issue to discuss is the potential conflict with one's constitutional right to freedom of religion. The first amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The first phrase is referred to as the "Establishment Clause;" the latter is the "Free Exercise Clause."
The protection that the Establishment Clause affords is the protection from a governmental establishment of religion. If this Establishment Clause is breached, then the law, or the issue, is unconstitutional. In order for a government action to survive an Establishment Clause, the law has to pass either the Lemon test or the Marsh v. Chambers "established tradition" test. In addition, the law cannot flunk the endorsement test.
The Lemon test provides that (1) the government action has to have a secular purpose; (2) its primary effect does not advance or inhibit religion; and (3) it does not foster an excessive entanglement with religion. For (1), the government action does not have to have only a secular purpose--only one of the purposes has to be secular. For (2), "primary" appears in most cases to be considered a direct and immediate effect. For the third element, it involves a concern with government getting too involved with religion and religion getting too involved with government. This third issue is not addressed as much in later cases, so there is a chance that it is not as necessary as the other two elements.
In the situation at hand, it appears that government's restriction does have a secular purpose (the welfare of the children). The welfare also seems to be its primary effect; however, it appears as though there is an "excessive entanglement." This is demonstrated by the court saying what things Henry can and cannot do with the children when it comes to religion.
The "established tradition" test states that if the action is something that the framers of the Constitution did not intend to invalidate, then it would pass that test. It's difficult to believe that the framers would have had this sort of issue in mind, since there were very few inter-faith marriages at that time. It appears that the action would not pass this test either.
Finally, the endorsement test states that the action would flunk the test if it either has the purpose or effect of endorsing religion by appearing to the reasonable informed observer to take a position on a question of religious belief. In this case, it appears that the court is taking the position of endorsing Judaism since the decree mainly discussed what Henry cannot do, rather than discussing at length what each of them cannot do. With this in mind, it appears that the decree would not pass the requirements of the Establishment Clause.
The decree would also pass the Free Exercise Clause however. The Free Exercise Clause allows the people to practice their religion as they please. It is not an absolute right, however, but it is a fundamental right. This means that the government is required to show that the regulation on religiously-controlled conduct is necessary to serve a compelling governmental interest. This has to be shown if the attacker of the regulation can show any of the following four things: (1) the regulation is not neutral; (2) the regulation is not of general applicability; (3) the conduct is protected by a fundamental right in addition to free exercise; or (4) the regulation denies unemployment compensation because of non-criminal conduct. It appears that (2) could be shown since Henry is being limited more than Wilma. Also, (3) may be applicable as the right of privacy is called into question. Either way it seems as though the state could show that it has a compelling government interest, so it would be deemed constitutional. This interest would be the welfare of the children. The welfare of the children appears to be at stake since the boy is "emotionally distressed" and there has been a decline in his motivation and school work. The sisters are similarly affected. Therefore, for the free exercise rights of Henry, the regulation seems constitutional.
Outside of a religion, there is also an equal protection issue for Henry. The Fourteenth Amendment guarantees that a state shall not deny any person the equal protection of the law. Fairness of the laws is also afforded by the Due Process Clause of the 14th and 5th Amendments. There is a guarantee that the laws will not be arbitrary and will be reasonable. In this case, it is not a law, but the clauses have been interpreted to include regulations as well. Also, this is a state action, while the 5th Amendment is a federal issue. Due to the 14th Amendment, this has been broadened to include state action.
With equal protection issues there are four standards that are applied. The first one is the normal substantive due process standard. It states that the attacker has to show that there is harmful government action and that the action is not rationally related to a legitimate purpose. With the suspect classification standard, strict scrutiny is used: the attacker has to show that it's a suspect classification or a classification substantially burdening a fundamental right. The government then has to show that it's necessary to serve a compelling interest. If it was an issue of gender or illegitimacy, then an intermediate standard would be used: the burden is on the government to show that the regulation is substantially related to government's important purpose. If it was an alienage classification, the attack would first try to satisfy the strict scrutiny standard, and then go to the alienage alternate standard where the government must show that it's rationally related to a constitutional prerogative.
With equal protection, one needs to prove intent on the part of the government to discriminate. This can be shown in three ways: (1) facial discrimination; (2) discriminatory application; and (3) discriminatory motive. With (1), the regulation would make an explicit distinction between classes of persons. With (2), the restriction would be applied in different manner to different people. And, with (3) there would be a motive that would become apparent that would be discriminatory. In this case, the regulation appears to satisfy (2), since it is Henry who is the one who is not allowed to do much with his children in terms of religion.
After showing interest, it is then necessary to show which classification this would fall into. The classification includes racial and religious minorities (as stated in the Carolene Products footnote). Quasi-suspect would include gender or legitimacy discrimination.
Since this is a suspect classification, the attacker needs to show that it's a suspect classification or a classification substantially burdening a fundamental right. The government then needs to show that it's necessary to serve a compelling interest. Again, the government's interest would be the welfare of the children. This would be a compelling interest, but there would be a question of whether it is necessary to serve that interest. There are few restrictions put on Wilma, but it seems as though she could argue that to burden her would also infringe on the children's religious freedom rights. The facts state that the children are more aligned with Judaism than Catholicism. With this in mind, it appears that the equal protection issue would not be on Henry's side.
Henry could also argue that his freedom of speech rights are violated by this regulation. The First Amendment prohibits Congress from abridging the freedom of speech. This prohibition has been made applicable to the states through the 14th Amendment. In this argument, the first issue is whether it is speech that is being abridged. It appears that way, since Henry is not allowed to speak to his children about religion if it will harm their relationship with their mother. The next issue is whether it is protected or unprotected speech. Unprotected speech would be obscenity or fighting words. This is not either of those, so it would be protected.
The next issue is whether the space is restricted based on content or not based on content. It appears that it is based on content, since Henry is forbidden to discuss religion at lengths with his children.
Since it is a content-based restriction, one must apply the Brandenburg test. The Brandenburg test states that the attacker must show that the restriction is content-based. The government must show that it's not a protected type of speech or that it's directed to and likely to produce imminent serious lawless action. The Brandenburg standard adds intent to the "clear and present danger of a serious evil" test. With the Brandenburg test, it appears that lawless probably means that it has to be a crime, although it does not have to be a serious crime. In this case, it does not seem that Henry's speech is going to bring about a crime of any kind or any sort of lawless action. This regulation would therefore be held to violated his First Amendment rights. It could also harm his First Amendment rights because it is a prior restraint. A prior restraint is an administrative action that keeps expressions from occurring. It stops expression before the fact. Any action that is a system of prior restraint of expression comes to the court bearing a heavy presumption that its unconstitutional (from Pentagon Papers). In order for the government to justify a prior restraint, the government needs to show that the expression will surely result in direct, immediate, and irreparable damage to the nation or its people. This is clearly not the case, because there is no indication that here would be immediate harm, or even any harm at all. The regulation would therefore violate the prior restraint doctrine.
The regulation is also subject to being vague. A regulation is subject to invalidity if persons of common intelligence must guess at statute's meaning. The idea behind vagueness is that if the person does not know what the regulation means exactly, then there may be a "chilling effect" on expression because the person will be fearful of violating it. This regulation is potentially vague because one does not know exactly what may promote alienation from either parent or rejection of either parent. Because of this, the parents may not engage in expression with their children as much as they would like.
Henry also has a couple arguments concerning the right of privacy. The right of privacy is considered a fundament right and includes marriage, abortion and contraceptives. It is based on the idea that something is fundamental when it is implicit in the concept of ordered liberty. It is considered in light of acceptance (both historical and current) and function (nondisclosure of personal matters and issues relating to important decisions). Burdens on fundament rights are judged with strict scrutiny. The attacker must show that here is a substantial burden on a fundamental right. The government then has to show that it was necessary to serve a compelling interest. Henry could argue that in the case of Pierce v. Society of Sisters, the Court included in the right of privacy the right to educate one's children. Henry could argue that he is attempting to educate his children about his religion. If he was successful, then it would be an issue of whether the government could show that it has a compelling interest in the children's welfare.
Henry could also argue that this is a family issue which is arguably a fundamental right. Since marriage and traditionally related families being able to live together (Moore v. East Cleveland), his family interests are also a fundamental right. He would, however, have difficulty arguing against the court's holding in Michael H. v. Gerald D., where the father's rights were not considered to be fundamental.
The right of privacy issues would not be Henry's strongest, however; he would be more successful with the religion and equal protection claims.
BEST ANSWER TO QUESTION II
Mitch. Stat. § 540.2385 may violate Marie's and other pregnant women's substantive due process rights. Beginning within the last 50 or 60 years, the Supreme Court has interpreted the Federal Constitution's 14th Amendment Due Process Clause as giving heightened protection to certain non-economic rights of individuals against invasion by the government, even though no such rights are specifically mentioned in the Bill of Rights or body of the Constitution. These rights so protected have typically been those involving individual privacy or personal autonomy.
Several theories have been advanced by the Court as to the source of protection for these rights. One theory is that the Bill of Rights Amendments overlay and emanate a "penumbra" or zone of privacy. Another theory is that the 9th Amendment language referring to non-enumerated rights being reserved to the people creates a category of "reserved" rights. However, the theory that offers perhaps the best understanding of the source of protection is that the Due Process Clause stands on its own and is intended to protect those non-enumerated values such as are "implicit in the concept of ordered liberty."
To determine whether an additional right should be granted substantive due process protection under the "ordered liberty" approach, it is necessary to evaluate the interest in light of its acceptance, both historical and current, and its function, which should be aimed at non-disclosure of intimate personal matters or autonomy in important life decisions.
Through its cases, the Court has over the years, defined a category of rights which are deemed implicit in a scheme of ordered liberty and as a result are given heightened protection. This category is referred to as "fundamental rights." The rights given such protection have so far been primarily those concerning individual privacy or personal autonomy such as the right to marry, decline unwanted medical treatment, bear and raise children, and for married couples to have intimate sexual relations in private.
The protection given fundamental rights is in the form of a heightened standard of review when an individual challenges a restrictive regulation in this area. Normally in the case of a non-fundamental right, the attacker must show that a right has been infringed and that the regulation is not "rationally related to a legitimate government purpose," in order for the regulation to be found unconstitutional. This is a very difficult standard for an attacker to meet.
However, if an attacker can show that a fundamental right has been violated, the government must show that the restriction it has imposed is "necessary to serve a compelling government interest," or the regulation is unconstitutional. This is a very difficult standard for the government to meet.
The first problem in a substantive due process analysis is to define the interest that the attacked regulation is infringing. Depending on how broadly or narrowly the issue is defined, the classification of the interest can be greatly affected. Here, the interest might be defined as broadly as the right to bear children and as narrowly as the right to abuse substances during pregnancy. This may determine whether the right is fundamental or not.
Although the precise situation presented here has never been specifically categorized by the Court as being "fundamental" or not, it seems likely that the Court would view this situation as involving significant issues of personal autonomy, and would be likely to view this situation as an infringement of a fundamental right.
First, an analogy can be drawn between this situation and one the Court has specifically addressed, abortion.
This is perhaps the only reasonable way of determining the proper classification in this situation. As with the abortion cases, the "ordered liberty" approach with its heavy reliance on historical and current acceptance may not yield an accurate prediction of results.
On the other hand, the abortion cases did appear to rely heavily on the function branch of the "ordered liberty" approach, particularly the branch relating to autonomy in important life decisions.
In Roe v. Wade the Court recognized the right of a woman to decide whether or not to bear children as a fundamental right. While the scope of Roe has been somewhat scaled back by the recent decision in Planned Parenthood v. Casey, it is still true that a regulation that unduly burdens a woman's interest in having a baby infringes a fundamental right.
Applying strict scrutiny analysis in the cases above, the Court balanced the woman's interest in making an important decision affecting her life to a great extent, against the state's interest in protecting the life of the fetus. The state's interest must be compelling in order to overcome strict scrutiny analysis, and in those cases the Court found that the state's interest became compelling when the fetus was capable of life outside the womb (approximately 7 months). The practical affect of this is that states may not tightly regulate as to abortions before this viability time.
While not exactly the same type of activity, it seems reasonable to compare the abortion cases to the situation here. If a woman may terminate her pregnancy up until the time of viability without undue burden from the state, it is reasonable to conclude that other harmful actions taken by the mother up until that time may also not be closely regulated.
Here, the statute does not distinguish between activities post-viability and pre-viability. Also, in the case of controlled substance use (¶ D.), the burden on the woman's rights must be considered substantial since it amounts to involuntary confinement.
As a result, it seems likely that a court would conclude that the statute violates pregnant women's substantive due process rights. The remedy chosen by the court may be to entirely strike down the statute or give it a "saving construction" such as that it only applies to post-viability pregnancies.
The statute may also violate Marie's and other women's equal protection rights. The Equal Protection (EP) Clause of the 14th Amendment provides that "[n]o State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws." Although it was initially adopted after the Civil War mainly to give protection to newly freed slaves, nearly from the time of its adoption the Supreme Court has interpreted it as a general restraint on how government in the use of regulatory classifications. In practice, it means not only that all persons similarly situated must be given the equal protection of existing laws, but that all persons so situated are also entitled to the protection of equal laws when new classifications are made.
The protection of the EP Clause takes shape through different standards of review that courts apply to challenges to government action that allegedly violates an attacker's EP rights. The first of these is rational basis review, and is used where the government's classification does not involve the use of a "suspect" or "near suspect" classification. (More on these later.) Under this standard of review, the attacker must show that the government has made a harmful classification and that it is "not rationally related to a legitimate purpose" for the classification to be declared unconstitutional. This standard is very deferential to the government.
In contrast, the highest form of protection is termed "strict scrutiny" review. it is used for so-called "suspect classifications." A suspect classification is one where the group being treated differently has historically been the victim of discrimination. Put another way, and paraphrasing the famous Carolene Products footnote 4, strict scrutiny is applied where the group being injured by the classification is a "discrete and insular minority" either in a political or physical sense or both. Racial classifications are the classic example of a suspect classification.
There is also a third middle level of review that is used for classifications that are based on "near suspect" classifications. The rationale for this heightened standard is much the same as for strict scrutiny, the difference being mainly one of degree as to the historic level of discrimination or the harm suffered. A classic example of mid-level scrutiny is one based on gender. Under mid-level review, the attacker must show a classification based on a near-suspect class. The burden then shifts to the government to show that the classification is "substantially related to an important purpose" to avoid having the classification declared unconstitutional. In addition in the case of gender classifications, because of U.S. v. Virginia, the government must show an "exceedingly persuasive" justification that is genuine and does not rely on over-broad gender rationalizations.
In this situation, there are two readily apparent possible classifications that the government has made. First, since only women can be pregnant, is one based on gender. Secondly, the statute treats alcohol users differently from controlled substance users.
The first based on gender is probably not likely to succeed.
However, it is not a facial classification that the government has made here with respect to women. it is actually a regulation that has a disparate impact on women. Thus, mid-level scrutiny will not automatically be applied. Marie would first have to show a prima facie case that gender discrimination was a (not the only) motivating factor. This showing can be made through disparate impact coupled with other evidence (circumstantial or direct) that would tend to show that this gender discrimination was purposeful. There do not seem to be any such facts present here.
Even if Marie could show some sort of evidence, however, the state could then argue that the classification was based solely on a desire to protect the fetus. Marie would then have to successfully show that this explanation was pretextual.
If she could make such a showing, the state could next attempt to show that the decision would have been the same without a purpose to discriminate against women. Only if the state were unsuccessful in this would the mid-level scrutiny be given to the classification.
Since there is no hint of a discriminatory purpose toward women here, it is likely that such a challenge would fail.
The second challenge based on illegal drug users vs. alcohol users is probably also not likely to succeed.
This is a facial classification, but no suspect or near-suspect classification is involved. Marie would thus have to show that the classification is not rationally related to a legitimate purpose. She could argue that the classification imposes a harsher penalty on marijuana users as opposed to alcohol users even though the harm to the fetus which is the alleged government purpose is less. Thus, the regulation is not rationally related to its articulated purpose.
The state however would argue that a distinction can be made because marijuana use is illegal vs. legal alcohol use. One of the purposes of the statute might be to discourage illegal drug use. These sort of post-hoc rationalizations are permitted when using the rational basis standard. Thus, the harsher penalty for illegal drug use is rationally related to discouraging illegal drug use and the statute should be upheld.
The government probably has the advantage because of the extremely deferential standard of review and would probably prevail.
Marie could also perhaps challenge the statute on the basis that it is vague. A vague statute is one where a person of ordinary intelligence must guess at its meaning. Here it is possibly unclear as to what "abusing" alcohol means. However, Marie may lack standing to make such a challenge because she falls within the statute's "hard core." (Its application is clear with regard to her.)