POL 336 American Constitutional Law II (Spring 2020)

Welcome to the course! POL 336 is a course for Politics majors, for students minoring in law, and for any other student interest in civil liberties and the legal process. Your weekly class assignments will be listed here, as well as any other information and readings that are relevant to the course. Check here every day a definitive statement of the assignment(s) for class.

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Wednesday, 4/22, update:

As per the email I sent yesterday, we will have a ZOOM meeting today, April 22d, at 3:30pm, to sketch out the rest of the semester.

Wednesday, 4/15, update:

I posted an updated version of the syllabus to reflect what we have been actually able to do since the switch to an online format. The “Grading Policy” and “Class Schedule” sections contain the changes. Check them out. In brief, I have eliminated the final exam and instead will base your grade entirely on the class and individual assignments (briefing cases, writing briefs, re-writing and editng your briefs). This will enable me to grade each of you as an individual regardless of how developed your legal skills are rather than apply a single standard of skill to all of you. It also places great weight, of course, on completing and submitting your assignments on time, and that includes the individualized email assignments that have constituted the bulk of the course since we went online. The failure of many of you to submit rewrites and briefs in a timely manner has made the moot court type back-and-forth rhythm of the litigation process impossible.

Some of you have submitted acceptable points-and-authorities briefs (even if rewritten multiple times—that’s a good thing!) and some are not yet at that stage. As long as you keep working hard and doing what I assign, you are in good shape.

For those of you who are ready to go on from the West Central Dixie case in these last three weeks of the semester, I am working on assigning a few cases from the casebook in a new area of constitutional law and coming up with a hypothetical for you to work with—perhaps only a points-and-authorities brief; perhaps a reply brief as well. In any event, the last assignment will be due on the last day of class—May 6th, normally the day that we would have a final.

So please check this assignment page later today (Wednesday) or tomorrow.

Thanks for your patience. I just hope that you are all learning something of value in this course.

Church of the Lukumi Babalu Aye, Inc. v. Hialeah,  508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993).

Burwell v. Hobby Lobby Stores, 573 US 682 (2014).

Wednesday, 4/8, update:

No Zoom meeting today. Each of you, I believe, owes me a draft or draft rewrite sometime over the next week with a due date indicated in my individual email to you. In several cases, other students are waiting for your draft, so please have all your amended drafts in to me by Friday, the 10th. The reply briefs that you may be working on are due next Tuesday, April 14th.

Have a good short break!

Wednesday-Thursday . 4/1-4/2, update:

Here is the link that I used for the screen share segment of our Zoom class on Wednesday:

Points and Authorities Brief Format

You may use anything on the linked page except my statement of the “Inferred Rule.” You must frame your own statements of the rule in the case that you choose.

Send me something by noon Thursday so I have something to critique for you or to exchange with another student-counsel.

Monday, 3/30, update:

I think we need a Zoom meeting on Wednesday to get the class back on track. Let’s meet at regular class time (3:30pm Wednesday) for forty-five minutes or so. We will go over the Grutter, Gratz, Fisher I, & Fisher II cases and the rules of those cases, in particular.

Have your Rossum and Tarr casebook with you for the Grutter and Gratz cases. For the Fisher cases, it would be a good idea to print out Sections II and III of Kennedy’s opinion in Fisher I and Section II of his opinion in Fisher II. These are the sections of the opinion that discuss the rules that you all should be using.

I will now email you the Zoom address. See you Wednesday!

Fisher v. University of Texas at Austin (Fisher I), 570 U.S. 297 (2013)

Fisher v. University of Texas at Austin (Fisher II), 579 U.S. --- (2016)


Saturday, 3/28, update:

I am reviewing the briefs today. Several of you had revised briefs due yesterday. Some of you submitted them.

I will also try to clarify what is next expected from you. Some of you must revise your original brief AND submit a reply brief to you opponent. I will give you separate due dates early next week (March 30th or 31st). I am trying to individualize your assignments to help each of you at your particular level of skill at this point; it is getting complicated. Watch for emails.

We should probably have a video Zoom meeting sometime next week. I will schedule one.

There still seems to be some confusion about the form of the briefs. This is the general outline with short explanations in parentheses. Organize your brief into this three-part format.

Points and Authorities Brief Format

1. Controlling Case: (The case you primarily rely upon; this is the case you cite as “controlling”);

2. Rule: (The rule in that case (1) that is most favorable to your client and (2) that you want the Supreme Court to apply in your case. State it specifically and precisely.);

3. Argument: (Demonstrations that the specific, detailed facts in our hypothetical satisfy each of the elements of the rule that you have selected by stating “Here . . . . Here . . . . “ and so on.)

For the “Controlling Case,” write “West Central Dixie State University—or The Sons of the Confederacy—or The Asian Society [WHICHEVER PARTY YOU ARE REPRESENTING!] argues that [name and citation of a case] is the controlling precedent in this litigation.”

For “Rule,” spell out (do not simply quote) the complete, precise rule of your controlling case. Be exact. (Note how Justice Kennedy cited the three part rule from Fisher I in Part II of his opinion in Fisher II.)

For “Argument,” use the specific facts mentioned in the hypothetical and show how they satisfy the requirements of the different elements of your rule. (Most of your briefs made very general assertions rather than specific, factual assertions in this section. Here is where you make specific reference to—and quote as needed—statements in the hypothetical that show, for example, West Central’s stated purpose for positive segregation. The fact that there are separate dorms, separate funding, separate deans, and so on may be supportive to your case: specifically mention them and tie them to the element of the rule that seems to refer to them.)



Sunday, 3/22, update: After reviewing the first briefs, I want to move back the deadline for your next reply brief until at least Friday, 3/27. About half of you seem to be getting along just fine, but half are having trouble.

I sent each of you the opposing brief (according to my list of opposing counsel/parties) as soon as I received them on Wednesday or Thursday morning. I did not review them before I sent them. After I reviewed them yesterday, I see that I must work with some of you who wrote briefs and some of you who received briefs in order to make clear what you should do next. I will definitely post some material here in the website in a couple of days, but I will also email some of you directly over the next few days.

I have found that this only regimen requires me to schedule my time rather strictly. Today (Sunday) is Zoom day; tomorrow is the day to correct the POL 211 assignments. I will try to get to your briefs on Tuesday, but if I cannot, I will get to them definitely on Wednesday.

Thank you for your patience. Stay tuned!



Saturday, 3/21, update: I am reviewing each of the briefs today and sending you (and your opposing party, if necessary) feedback in the order in which I received them and a grade. Grading will be based on a three (or four) point scale:

·         “0” if you hand nothing in

·         “1” (55%) if your submission is not acceptable

·         “2” (75%) if your submission is acceptable

·         “3” (95%) if your submission is good

·         I will reduce your grade by 1 point (not 1% but 1 out of the possible three points) if your submission is late. In these assignments where it is crucial to get your assignment in on time so that I can timely send it to another student, lateness simply cannot be tolerated.

For the “Class” of Wednesday, March 25th:

I received all seven briefs as of late last night and forwarded them to the appropriate opposing parties.

The next step for all of you is to respond to the legal argument in the opposing brief that you just received. Let’s review some basics:

1. Each of the briefs that you submitted named a case that you want the Court to accept as “controlling”; that is, you selected a case that you want to the Court to use as the main precedent in deciding the present appeal because the rule in the case that you chose favors your client in the litigation.

 Those of you who represented and argued for West Central Dixie (the “university”) selected or should have selected a controlling case that stands for a rule that establishes a lower standard than “strict scrutiny” for testing Equal Protection (“EP”) violations. Why? Because only the state university policies can possibly violate EP standards; the student groups are not subject to EP (there is no state action). Thus the university wants the most discretion it can get in forming policies with racial implications: it wants the lowest possible standard because it can then more easily meet it and justify its policies. If its policies must meet the high standard of strict scrutiny—a compelling governmental interest, no reasonable less-restrictive alternatives—the university will be more limited in what it can do. Its policies might be challenged (as they were in this case) and it might lose that challenge (as it did to the Asian Society’s challenge). So the university opposes the application of strict scrutiny in this case, as practically every government or state entity opposes the application of strict scrutiny in its policies. (See the Adarand and the City of Richmond cases in addition to the university cases assigned.) The student groups in these cases and anyone who feels harmed by the racial policies of a state entity and who challenges those policies in litigation will argue that the appropriate standard in all cases involving racial bias is the high “strict scrutiny” standard, which is harder for the state entity to satisfy. Remember, in litigation, winning is the name of the game.

2. Your task now is to “distinguish,” if you can, the case that your opponent wants the Court to accept as controlling. You can do this by, first, pointing out in your brief how the factual situation and hence the legal issues of your opponents preferred case differ from the facts in the present case and by persuasively arguing that those differences are significant.

3. Second, you should also look closely at the opposing brief’s application of its rule to the facts. If the reasoning that this or that fact satisfies this or that element of the opponent’s proposed rule seems questionable to you, that weakness should be suggested to the Court. This is the “but even if” argument that every lawyer must use in a case where the parties are arguing for different rules. “But even if” you (the court) accept the rule proposed by the other party, the other party still loses because the facts alleged by the other party do not satisfy that rule.

4. Finally, of course, you should argue that the rule that you proposed in your initial brief is better on general policy or constitutional grounds than the one that your opponent is proposing. Here is where you get to the battle of rules that was discussed in the previously assigned pages in the R&T textbook and in the various opinions—dissenting, concurring, and majority opinions—of the assigned cases.

I hope this is helpful. The artificiality of this college exercise is in part the fact that every student/lawyer/client—whatever you are or whatever you consider yourself—was asked to submit a first brief simultaneously. In real litigation, one party usually goes first and the other party then responds. Here, we had to get this exercise off the ground more quickly.

I will supplement this material with more comments after I have read the briefs that you have already submitted.


Assignment for March 18th: Working individually, not as teams, using the assigned reverse discrimination cases and those discussed in the assigned pages of the textbook, and also using the format below, write (type only) a one-page points-and-authorities brief presenting the strongest argument for your client to the Supreme Court. For full credit, you must email your brief to me by 4:00pm on Wednesday, March 18th .


Points and Authorities Brief Format

1. The case you primarily rely upon (the case you cite as “controlling”);

2. The rule in that case (1) that is most favorable to your client and (2) that you want the Supreme Court to apply in your case;

3. Demonstrations that the facts in our hypothetical satisfy each of the elements of the rule that you have selected by stating “Here . . . . Here . . . . “ and so on, as we did for the John Doe v. United States case back on February 12th. (See this same brief format that is listed under the John Doe hypothetical that was assigned for February 12th. You have done this before.)


Each of you has been alphabetically assigned a client (party) to represent in the West Central Dixie litigation before the supreme Court. As the hypothetical makes clear, this “case” before the Supreme Court is actually two cases combined by the Court because they present similar issues arising out of the same basic factual situation. You must, however, be acutely aware of your client’s status before the Supreme Court:

·         Queenly and John represent petitioner West Central Dixie in its case against the Asian Society. In this case below, the Asian Society won; the university (your client) appealed (or petitioned) asking the Supreme Court to review the lower court decision (summarized in the hypo) and reverse the lower court decision. You must argue that the lower court applied the wrong Equal Protection standard and must present the correct (=your preferred) standard to the court and show how the facts fit that standard.


·         Naomi and Frances represent respondent Asian Society in this case against West Central Dixie. In the case below your client won, so in response to the university’s argument, you must argue that the lower court applied the correct standard and that the lower court decision should be affirmed. Argue for the lower court’s rule and show haw the facts fit it. Your more difficult task is next week when you will have to argue against the rule and the university counsel (Queenly and John) argue for.


·         Kristie and Kaliah represent petitioner Sons of the Confederacy in their case against West Central Dixie. Like the university in the other case (Queenly and John’s client), your client lost in the lower court, you appealed (or petitioned), and now you are asking the Supreme Court to review the lower court decision (summarized in the hypo) and reverse the lower court decision. You must argue that the lower court applied the wrong Equal Protection standard and must present the correct (=your preferred) standard to the court and show how the facts fit that standard.


·         Kanwall represents respondent West Central Dixie in this case against The Sons of the Confederacy. In the court below, your client won. In response to the Sons’ argument, you must argue that the lower court applied the correct standard and that the lower court decision should be affirmed. Argue for the lower court’s rule and show haw the facts fit it. Your more difficult task is next week when you will have to argue against the rule that the counsel for the Sons of the Confederacy (Kristie and Kaliah) argue for.


You must carefully read the hypothetical in order to understand the legal position that you are in and what argument you must devise. The previously assigned pages in the casebook (pp.607-623) and the previously assigned cases (Gratz, Grutter, Fisher I and also Fisher II) present thorough discussions of this “which standard or which rule should apply in reverse or ameliorative discrimination cases” argument. Study those pages and cases.

Following the cases and the commentary in the R&T text, you should know that these arguments revolve around the tule or test for Equal Protection violations that the Supreme Court has used in reverse or ameliorative discrimination cases (the “strict scrutiny” rule/standard or some other rule. You should select the case that most favors your client’s position; that is, you should that the rule that the Court applied in the most favorable case should be the rule that it follows in the present case. You must then show (argue) that the facts in the West Central Dixie case support the elements of the rule that you select.

As I said above, I spent most of the class (1 ½ hour plus) explaining this to those who attended; I am not going to repeat it. Ask one of your classmates who was in class for help if you have questions.

Disappointing turnout on Wednesday; three were absent. And even more disappointing was the fact that only two of you had read the hypothetical (five copies of this out-of-print document were left in  my office wall rack at class time). Still two in the rack on the wall outside my office door. Hope you pick one up over Spring Break.

The problem is that Wednesday’s class was the introduction to the first moot court argument and the first graded assignments in the course, and I am not going to repeat in print what I told those in attendance in an hour-and-a-half in class. So if you were not in class, please get in touch with someone who was to find out what to do. AND pick up your copy of the hypothetical West Central Dixie State University v. The Asian Society and The Sons of the Confederacy!


For the Class of Wednesday, March 4th:

I put copies of the hypothetical for each of you in the rack outside my office door: West Central Dixie State University v. The Asian Society and the Sons of the Confederacy. It is long and detailed (five pages) and will give us something to chew on for a few weeks. The issue is what is known as “reverse discrimination” and is still the subject of litigation. In the R&T case book, the subject is discussed under the heading of “Suspect Classifications: Ameliorative Racial Preference,” pages 572 to 579. There are a lot of higher education cases cited in the text, and two of them—Gratz v. Bollinger and Gratz v. Bollinger—are excerpted in the cases section of the chapter, pages 607-623. Please read them and Fisher I, below, after you read pages 572-579. We’ll save Fisher II for next time. Many of the cases cited in Fisher I & II are in our R&Tcase book.

Fisher v. University of Texas at Austin (Fisher I), 570 U.S. 297 (2013)

Fisher v. University of Texas at Austin (Fisher II), 579 U.S. --- (2016)


For the Classes of Wednesday, February 26th:

You gave overwhelming support for the study of Equal Protection cases, so for the next four or five classes, that is what we will focus on. Let’s do this thoroughly. We will hit most of the benchmark cases, but we will take the general approach of how an attorney would use these courses in a case.

I am going to mix and match material from chapters 8 and 9 of R&T. First, please read pages 569-587 in chapter nine on the different levels of constitutional analysis. Much of it is review of what I told you in class, but it has many case examples. Second, please read and brief four famous cases from chapter eight: Plessy v. Ferguson, Brown v. Board of Education, Bolling v. Sharp, Brown v. Board (II). No hypotheticals this week. Let’s get these fundamentals down this week, and then get back to what we were doing: making plausible legal arguments.


For the Class of Wednesday, February 19th:

We will shift our focus to another part of the First Amendment this week: the religion clauses—the Establishment Clause and the Free Exercise Clause.

In the R&T text, please read pages 277 to 286 (of chapter 6) and brief the following cases in the casebook:

·         Everson v. Board of Education

·         Sherbert v. Verner

·         Employment Division (Oregon) v. Smith

As you can see from R&T’s commentary, the Court’s interpretations of the religion clauses have given rise to a fundamental dilemma in the rules relied upon by the Court in deciding many religion cases. If the court tries to accommodate a religious employee say, by excusing him from working on a Sunday at a government job when everyone else has to work, is the Court (and the government employer) implicitly endorsing his religion and therefore violating the Establishment Clause of the First Amendment? On the other hand, if the Court rejects the employee’s argument and mandates no special treatment because of the employee’s religion, is the Court (and the government employer) violating the employee’s Free Exercise right? Many of the cases in chapter six reflect that fundamental tension and the all-but-unpredictable decisions of the Court in such cases.

Read the following case and prepare an argument for Petitioner Roe, citing one of the cases—Sherbert or Smith—as controlling precedent and spelling out how the rule in the chosen case leads to Roe’s conclusion that his Free Exercise rights have been violated. Your argument must be typed and handed in. In class we will prepare a response to Roe’s argument(s). (I have been going back and forth all day trying to decide whether to assign Hypothetical #1 or Hypothetical #2, below. Decided on #1.)


Hypothetical #1.

Roe v. United States


Petitioner S. Roe contends that the Free Exercise Clause of the First Amendment to the United States Constitution permits him to wear a yarmulke while in uniform, notwithstanding an Air Force regulation mandating uniform dress for Air Force personnel. The District Court for the District of Columbia permanently enjoined the Air Force from enforcing its regulation against petitioner and from penalizing him for wearing his yarmulke. The Court of Appeals for the District of Columbia Circuit reversed on the ground that the Air Force's strong interest in discipline justified the strict enforcement of its uniform dress requirements. We granted certiorari because of the importance of the question.

Petitioner Roe is an Orthodox Jew and ordained rabbi. In 1983, he was accepted into the Armed Forces Health Professions Scholarship Program and placed on inactive reserve status in the Air Force while he studied clinical psychology at Loyola University of Chicago. During his three years in the scholarship program, he received a monthly stipend and an allowance for tuition, books, and fees. After completing his Ph.D. in psychology, petitioner entered active service in the United States Air Force as a commissioned officer, in accordance with a requirement that participants in the scholarship program serve one year of active duty for each year of subsidized education. Petitioner was stationed at Ellins Air Force Base in Riverside, California, and served as a clinical psychologist at the mental health clinic on the base.

Until 1991, petitioner was not prevented from wearing his yarmulke on the base. He avoided controversy by remaining close to his duty station in the health clinic and by wearing his service cap over the yarmulke when out of doors. But in April, 1991, after he testified as a defense witness at a court-martial wearing his yarmulke but not his service cap, opposing counsel lodged a complaint with Colonel Joseph Jones, the Hospital Commander, arguing that petitioner's practice of wearing his yarmulke was a violation of Air Force Regulation (AFR) 35-10. This regulation states in pertinent part that "[h]eadgear will not be worn . . . [w]hile indoors except by armed security police in the performance of their duties." AFR 35-10, ¶ 1-6.h(2)(f) (1980).

Colonel Jones informed petitioner that wearing a yarmulke while on duty does indeed violate AFR 35-10, and ordered him not to violate this regulation outside the hospital. Although virtually all of petitioner's time on the base was spent in the hospital, he refused. Later, after petitioner's attorney protested to the Air Force General Counsel, Colonel Jones revised his order to prohibit petitioner from wearing the yarmulke even in the hospital. Petitioner's request to report for duty in civilian clothing pending legal resolution of the issue was denied. The next day, he received a formal letter of reprimand, and was warned that failure to obey AFR 35-10 could subject him to a court-martial. Colonel Jones also withdrew a recommendation that petitioner's application to extend the term of his active service be approved, and substituted a negative recommendation.



Hypothetical #2.   At issue in these cases are HHS regulations promulgated under the Patient Protection and Affordable Care Act of 2010 (ACA), 124 Stat. 119. ACA generally requires employers with 50 or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum essential coverage.” 26 U. S. C. §5000A(f)(2); §§4980H(a), (c)(2). Any covered employer that does not provide such coverage must pay a substantial price. Specifically, if a covered employer provides group health insurance but its plan fails to comply with ACA’s group-health-plan requirements, the employer may be required to pay $100 per day for each affected “individual.” §§4980D(a)–(b). And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the employer must pay $2,000 per year for each of its full-time employees. §§4980H(a), (c)(1).

 Unless an exception applies, ACA requires an employer’s group health plan or group-health-insurance coverage to furnish “preventive care and screenings” for women without “any cost sharing requirements.” 42 U. S. C. §300gg–13(a)(4). Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. Ibid. The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require. See 77 Fed. Reg. 8725–8726 (2012).

 In August 2011, based on the Institute’s recommendations, the HRSA promulgated the Women’s Preventive Services Guidelines. See id., at 8725–8726, and n. 1; online at http://hrsa.gov/womensguidelines (all Internet materials as visited June 26, 2014, and available in Clerk of Court’s case file). The Guidelines provide that nonexempt employers are generally required to provide “coverage, without cost sharing” for “[a]ll Food and Drug Ad- ministration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling.” 77 Fed. Reg. 8725 (internal quotation marks omitted). Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. See Brief for HHS  in No. 13–354, pp. 9–10, n. 4;6 FDA, Birth Control: Medicines to Help You.

 HHS also authorized the HRSA to establish exemptions from the contraceptive mandate for “religious employers.” 45 CFR §147.131(a). That category encompasses “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” See ibid (citing 26 U. S. C. §§6033(a)(3)(A)(i), (iii)). In its Guidelines, HRSA exempted these organizations from the requirement to cover contraceptive services.

  In addition, HHS has effectively exempted certain religious nonprofit organizations, described under HHS regulations as “eligible organizations,” from the contraceptive mandate. See 45 CFR §147.131(b); 78 Fed. Reg. 39874 (2013). An “eligible organization” means a nonprofit organization that “holds itself out as a religious organization” and “opposes providing coverage for some or all of any contraceptive services required to be covered . . . on account of religious objections.” 45 CFR §147.131(b). To qualify for this accommodation, an employer must certify that it is such an organization.  §147.131(b)(4). When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer’s plan  and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. §147.131(c). Al- though this procedure requires the issuer to bear the cost of these services, HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services. 78 Fed. Reg. 39877.

 In addition to these exemptions for religious organizations, ACA exempts a great many employers from most of its coverage requirements. Employers providing “grandfathered health plans”—those that existed prior to March 23, 2010, and that have not made specified changes after that date—need not comply with many of the Act’s requirements, including the contraceptive mandate. 42 U. S. C. §§18011(a), (e). And employers with fewer than 50 employees are not required to provide health insurance  at all. 26 U. S. C. §4980H(c)(2).

 All told, the contraceptive mandate “presently does not apply to tens of millions of people.” 723 F. 3d 1114, 1143 (CA10 2013). This is attributable, in large part, to grandfathered health plans: Over one-third of the 149 million nonelderly people in America with employer-sponsored health plans were enrolled in grandfathered plans in 2013. Brief for HHS in No. 13–354, at 53; Kaiser Family Foundation & Health Research & Educational Trust, Employer Health Benefits, 2013 Annual Survey 43, 221. The count for employees working for firms that do not have to provide insurance at all because they employ fewer than 50 employees is 34 million workers. See The Whitehouse, Health Reform for Small Businesses: The Affordable Care Act Increases Choice and Saving Money for Small Businesses 1.

 Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that “[t]he fetus in its earliest stages . . . shares humanity with those who conceived it.”

 Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this company, Conestoga Wood Specialties, has grown and now has 950 employees. Conestoga is organized under Pennsylvania law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business; they control its board of directors and hold all of its voting shares. One of the Hahn sons serves as the president and CEO.

 The Hahns believe that they are required to run their business “in accordance with their religious beliefs and moral principles.” To that end, the company’s mission, as they see it, is to “operate in a professional environment founded upon the highest ethical, moral, and Christian principles.” Ibid. The company’s “Vision and Values Statements” affirms that Conestoga endeavors to “ensur[e] a reasonable profit in [a] manner that reflects [the Hahns’] Christian heritage.”

 As explained in Conestoga’s board-adopted “Statement on the Sanctity of Human Life,” the Hahns believe that “human life begins at conception.” It is therefore “against [their] moral conviction to be involved in the termination of human life” after conception, which they believe is a “sin against God to which they are held accountable.” Ibid. The Hahns have accordingly excluded from the group-health-insurance plan they offer to their employees certain contraceptive methods that they consider to be abortifacients.

 The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA and the Free Exercise Clause of the First Amendment, seeking to enjoin application of ACA’s contraceptive mandate insofar as it requires them to provide health-insurance coverage for four FDA-approved contraceptives that may operate after the fertilization of an egg. These include two forms of emergency contraception commonly called “morning after” pills and two types of intrauterine devices.

 In opposing the requirement to provide coverage for the contraceptives to which they object, the Hahns argued that “it is immoral and sinful for [them] to intentionally participate in, pay for, facilitate, or otherwise support these drugs.” Ibid. The District Court denied a preliminary injunction, and the Third Circuit affirmed in a divided opinion, holding that “for-profit, secular corporations cannot engage in religious exercise” within the meaning of RFRA or the First Amendment. The Third Circuit also rejected the claims brought by the Hahns themselves because it concluded that the HHS “[m]andate does not impose any requirements on the Hahns” in their personal capacity.  

For the Class of Wednesday, February 12th:

Let’s brief a couple of the First Amendment cases in Chapter 5 of the textbook, and then apply them—or one of them—to a hypothetical legal dispute that I will post on Sunday.

Please read and brief McCullen v. Coakley, 573 U.S. --- (2014) at page 235 of our R&T case book, and  Minnesota Voters Alliance v. Mansky, 585 U.S. --- (2018) at page 254 of the case book. The commentary part of the case book that generally discusses such cases is found at pages 189 to 194, “The Regulation of Speech and Association.” Please read that as well.


As I indicated in class, you are responsible for getting a copy of the case book for use in the course (there is a copy on reserve at Reinsch Library). I will supply copies of court opinions that are not in the case book. McCullen and Minnesota Voters Alliance are in the case book.

The briefs—legal issue, holding, and rule—and the argument in the hypothetical below must be typed and handed in during class.

Here is the hypothetical:

Hypothetical: John Doe v. United States


     Federal law makes it a crime to reenter a "military . . . installation" after having been ordered not to do so "by any officer or person in command." 18 U. S. C. §1382. The question presented is whether a portion of an Air Force base that contains a designated protest area and an easement for a public road qualifies as part of a "military installation."

     Vandenberg Air Force Base is located in central California, near the coast, approximately 170 miles northwest of Los Angeles. The Base sits on land owned by the United States and administered by the Department of the Air Force. It is the site of sensitive missile and space launch facilities. The commander of Vandenberg has designated it a "closed base," meaning that civilians may not enter without express permission. Memorandum for the General Public Re: Closed Base, from David J. Buck, Commander (Oct. 23, 2008), App. 51; see also 32 CFR §809a.2(b) (2013) ("Each [Air Force] commander is authorized to grant or deny access to their installations, and to exclude or remove persons whose presence is unauthorized").

     Although the Base is closed, the Air Force has granted to the County of Santa Barbara "an easement for a right-of-way for a road or street" over two areas within Vandenberg. Department of the Air Force, Easement for Road or Street No. DA-04-353-ENG-8284 (Aug. 20, 1962), App. 35. Pursuant to that easement, two state roads traverse the Base. Highway 1 (the Pacific Coast Highway) runs through the eastern part of the Base and provides a route between the towns of Santa Maria and Lompoc. Highway 246 runs through the southern part of the Base and allows access to a beach and a train station on Vandenberg's western edge. The State of California maintains and polices these highways as it does other state roads, except that its jurisdiction is merely "concurrent" with that of the Federal Government. Letter from Governor Edmund G. Brown, Jr., to Joseph C. Zengerle, Assistant Secretary of the Air Force (July 21, 1981), App. 40. The easement instrument states that use of the roads "shall be subject to such rules and regulations as [the Base commander] may prescribe from time to time in order to properly protect the interests of the United States." Easement, App. 36. The United States also "reserves to itself rights-of-way for all purposes" that would not create "unnecessary interference with . . . highway purposes." Id., at 37.

     As relevant to this case, Highway 1 runs northwest several miles inside Vandenberg until it turns northeast at a 90 degree angle. There Highway 1 intersects with Lompoc Casmalia Road, which continues running northwest, and with California Boulevard, which runs southwest. In the east corner of this intersection there is a middle school. In the west corner there is a visitors' center and a public bus stop. A short way down California Boulevard is the main entrance to the operational areas of the Base where military personnel live and work. Those areas are surrounded by a fence and entered by a security checkpoint. See Appendix, infra (maps from record).

     In the south corner of the intersection is an area that has been designated by the Federal Government for peaceful protests. A painted green line on the pavement, a temporary fence, Highway 1, and Lompoc Casmalia Road mark the boundaries of the protest area. Memorandum for the General Public Re: Limited Permission for Peaceful Protest Activity Policy, from David J. Buck, Commander (Oct. 23, 2008), App. 57-58. The Base commander has enacted several restrictions to control the protest area, including reserving the authority "for any reason" to withdraw permission to protest and "retain[ing] authority and control over who may access the installation, including access to roadway easements for purposes other than traversing by vehicle through the installation." Ibid. A public advisory explains other rules for the protest area: demonstrations "must be coordinated and scheduled with [B]ase Public Affairs and [Base] Security Forces at least two (2) weeks in advance"; "[a]nyone failing to vacate installation property upon advisement from Security Forces will be cited for trespass pursuant to [18 U. S. C. §1382]"; and "[a]ctivities other than peaceful protests in this area are not permitted and are specifically prohibited." U. S. Air Force Fact Sheet, Protest Advisory, App. 52-53.

     The advisory states, consistent with federal regulations, that anyone who fails to adhere to these policies may "receive an official letter barring you from entering Vandenberg." Id., at 55; see also 32 CFR §809a.5 ("Under the authority of 50 U. S. C. [§]797, installation commanders may deny access to the installation through the use of a barment order"). And for any person who is "currently barred from Vandenberg AFB, there is no exception to the barment permitting you to attend peaceful protest activity on Vandenberg AFB property. If you are barred and attend a protest or are otherwise found on base, you will be cited and detained for a trespass violation due to the non-adherence of the barment order." Protest Advisory, App. 54.

     John Doe is an antiwar activist who demonstrates at Vandenberg. In March 2003, Doe trespassed beyond the designated protest area and threw blood on a sign for the Base. He was convicted for these actions, was sentenced to two months' imprisonment, and was barred from the Base for three years. In May 2007, Doe returned to Vandenberg to protest. When he trespassed again and was convicted, he received another order barring him from Vandenberg, this time permanently, unless he followed specified procedures "to modify or revoke" the order. Memorandum for John Doe Re: Barment Order (Oct. 22, 2007), App. 63-65. The only exception to the barment was limited permission from the Base commander for Doe to " 'traverse', meaning to travel . . . on [Highway] 1 and . . . on [Highway] 246 . . . . You are not authorized to deviate from these paved roadways onto [Vandenberg] property." Id., at 64. The order informed Doe that if he reentered Vandenberg in violation of the order, he would "be subject to detention by Security Forces personnel and prosecution by civilian authorities for a violation of [18 U. S. C. §1382]." Ibid.

     Doe ignored the commander's order and reentered Vandenberg several times during 2008 and 2009. That led the Base commander to serve Doe with an updated order, which informed him:

"You continue to refuse to adhere to the rules and guidelines that have been put in place by me to protect and preserve order and to safeguard the persons and property under my jurisdiction by failing to remain in the area approved by me for peaceful demonstrations pursuant to [50] U. S. C. § 797 and 32 C. F. R. § 809a.0-[809]a.11. You cannot be expected or trusted to abide by the protest guidance rules based upon this behavior. I consider your presence on this installation to be a risk and detrimental to my responsibility to protect and preserve order and to safeguard the persons and property under my jurisdiction. You are again ordered not to enter onto [Vandenberg] property, as provided in the October 22, 2007 order. The content and basis of that order is hereby incorporated by reference herein, EXCEPT that your barment will be for a period of three (3) years from the date of this supplemental letter." Memorandum for John Doe Re: Barment Order Dated Oct. 22, 2007 (served Jan. 31, 2010), App. 59-62.

     Doe ignored this barment order too, and on three occasions in 2010 he reentered Vandenberg to protest in the designated area. Each time Vandenberg security personnel reminded him of the barment order and instructed him to leave. Each time Doe refused. He was cited for violating 18 U.S.C. §1382 and escorted off Base property.


      You have been retained by Mr. Doe to represent him in his trial for violating §1382. You decide to attack the constitutionality of §1382. Citing either the McCullen v. Coakley case or the Minnesota Voters Alliance v. Mansky case, what is the best argument that you can make? Type it out in the following order (fill-in-the-blanks) and hand it in Wednesday.

1. General Legal Issue Presented: _______________________________

2. Relevant case: ______________________________________

3. Relevant rule from the case: _______________________________

4. Factual argument supporting your argument that the case (and rule) you cited is the “controlling” case (and rule); that is, that the case and rule you cite should be the precedent that the court should follow in deciding the case.

______________________________________ (Usually, the supporting arguments begin with the word “Here,” as in

“Here, the area that was restricted was a traditional public forum. )





For the Class of Wednesday, February 5th:

One final class before we get into the First Amendment cases in Chapter 5 of the Rossum and Tarr case book (“R&T”). Please read and brief in the usual fashion the following cases:

 Palko v. Connecticut

Adamson v. California

McDonald v. Illinois

For each case, “brief” (Issue-Holding-Rule) only the majority/court opinion, but note the main point that any justice makes in a dissenting or concurring opinion. These separate opinions are valuable to indicate possible alternative legal arguments, such as the arguments that we will be working on in coming weeks.

These edited opinions are taken directly from the casebook; they are the last opinions that I will copy for you. You must get copies, or access to copies, of the casebook this week.


For the Class of Wednesday, January 29th:

The class discussion was good on Wednesday. We will continue to read and brief cases, but we will now focus almost exclusively on Supreme Court opinions regarding civil liberties issues. To establish the foundation for these opinions, we will start with some textbook commentary on the Bill of Rights and the “Incorporation Doctrine” in the Rossum and Tarr casebook, American Constitutional Law, vol II (henceforth abbreviated here as “R&T”). A copy of the casebook is in Reinsch library on “library reserve.”

Please read chapter 3 of R&T, up to page 52, and the following cases, one of which is in the casebook:

·         Barron v. Baltimore

·         The Civil Rights Cases

·         Gitlow v. New York

For each of the three cases, on a separate piece of paper to be handed in, identify the legal issue presented, the holding of the court, and the rule(s) that the court relied upon for its holding.

Fourteenth Amendment to the Constitution

Section One. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Criminal Conspiracy

Brief account of Virginia law from the Medvin firm.

There are constitutional issues with Virginia’s recent ratification of the Equal Rights Amendment, just as with California’s recent Consumer Protection Act.

For the Class of Wednesday, January 22d:

I gave out a lot of information about the litigation process in class. I do not expect you to master the material after one class; we will continue to work on the basic skills throughout the semester.

As I indicated, the first skill is the ability to analyze and brief cases, or court opinions. This skill underlies everything a lawyer does and most of what a law student does in law school.

For the cases that I gave out in the packet—Hopkins, Mount Olive, Ex parte McCardle, Schenck—I want you to read these short opinions and try to figure out just what the two parties disagreed about in each case. This fundamental legal disagreement, which the court (the judge) must resolve, is the “issue” or “question” in the case. The judge’s resolution of the issue (or answer to the question) is called the “holding.” And much of the remaining opinion is dedicated to providing a rationale, or supporting reasons, for the holding. Thus, for each case type up a “brief” consisting of three sentences:

1.       the legal issue/question/disagreement that the parties have brought before the court;

2.       the holding or resolution that the court arrived at; and,

3.       the main reason or rule that the court relied upon to support its holding.

Be as specific as you can. Not every opinion states these points clearly and unambiguously (as much as lawyers would like the courts to do so). For example, the court, Judge Welles, in the Baker v. Higgins opinion that we read in class, stated pretty clearly that the legal issue/question or disagreement was whether the buyer of the bricks (Higgins, the defendant) had to pay the seller (Baker, the plaintiff, who was suing Higgins to get payment for 21,000 bricks) for each partial delivery of bricks when the deliveries were made or had to pay only when all 75,000 bricks had been delivered. Judge Welles did not state this issue as clearly as I just did, but I (and you) must often infer the issue from the whole opinion.

Judge Welles did state clearly and simply the holding—his answer or resolution to the legal issue/question that I just indicated: the buyer (Higgins) was legally obligated only to pay the contract price for the bricks only after all of the bricks were delivered.

The rule or principle that Judge Welles relied upon in this case is not clearly stated. He based his holding on the legal principle that where a contract is deemed to be “entire,” then full performance by one party, the buyer, is only required after full performance, or the present offer of full performance, by the other party. Don’t worry if you have trouble figuring out the rule in some of the cases that we will study this semester.

Thus, your “brief” for Baker v. Higgins should say something like:

Issue: whether the defendant buyer was legally obligated to pay for each partial shipment of bricks as they were delivered.

Holding: the defendant was not obligated to pay for each partial shipment of bricks.

Rule: in a sales contract deemed to be “entire,” payment for the goods is required only after full performance—complete delivery of all of the purchased goods—by the seller.


Type up similar briefs for the four remaining cases:

Hopkins v. State

Mount Olive Primitive Baptist Church v. Patrick et al.

Ex parte McCardle

Schenck v. United States

Do the best you can for each case. To pass the assignment, simply make a good faith effort for all four cases and give me your case briefs in class (make a copy for yourself, too.)

Using LEXIS or Nexis Uni to find and research cases

1.       Go to marymount.edu, click on “Quick Links.”

2.       Click on “Library and Learning Services.”

3.       Under the “Quick Links” menu on the far left, click on “Articles and Databases.” “Databases by Subject” should appear.

4.       From the lists of subjects, click on “Legal” (far right list). The “Legal Studies” list should appear.

5.       From the “Legal Studies” list, click on “Nexis Uni.”

6.       From the four headings (“All,” “News,” “Company and Financial,” “Legal”), click on “Legal.”

7.       for present purposes, click on “Cases,” then on “US Cases.”

8.       Enter citation or name (style/title) of the case you want to find, and select the appropriate “field” from the “All Fields” drop-down menu box.

For the Class of Wednesday, January 15th:

For the first class, we will go over the basic elements and skills necessary to forming persuasive legal arguments. The standard or form that we will use as a framework is litigation because in the common law system litigation is the ultimate source of legal authority and the meaning of legal norms. We will eventually prepare moot-court type legal arguments and the points-and-authorities briefs that they often require.

In the first class, we will review the following points:

·         General format of a hypothetical or fact-pattern question

·         Researching and finding cases—LEXIS searches at Marymount

·         Citing cases and statutes

·         Briefing and analyzing cases

·         Using precedents and “distinguishing” precedents

·         Constructing a simple points-and-authorities brief


I will also hand out several short cases and use one or two (time permitting) as examples for analysis and briefing

(Baker, Hopkins, Mount Olive, Ex parte McCardle, Schenck)

For the class of January 22, you will have to brief several or all of these cases and we will go over the briefs.