Schultz D. Encyclopedia of the United States Constitution

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against states. Congress’s power to abrogate,

that is, revoke, a state’s Eleventh Amendment

immunity is derived from its authority to enact

legislation under Section 5 of the Fourteenth

Amendment. For over a decade, the Supreme

Court has construed it to declare states immune

from money damages in lawsuits brought against

them for violating laws related to unfair labor

practices, employment discrimination, patent

protection, and unfair trade practices.

The ADEA, enacted in 1967 under Congress’s

authority to regulate interstate commerce,

prohibits discrimination in employment on the

basis of age. Initially limited to private employees,

it was amended in 1974 to include state employ-

ees. However, although it is likely that in amend-

ing the statute, Congress intended to allow suits

against states for money damages in federal court,

the law did not specify that Congress abrogated

the state’s Eleventh Amendment immunity. In

1994, on behalf of a group of faculty members and

librarians, plaintiffs J. Daniel Kimel and Roderick

MacPherson ﬁ led suit against the state university

systems of Florida and Alabama for age discrimi-

nation, claiming they were denied pay increases

and promotions. Wellington Dickson, a prison

guard, sued the Florida Department of Correc-

tions, alleging discrimination on the basis of age

and disability. The states sought to dismiss the

monetary claims, citing their immunity under

the Eleventh Amendment. The lower courts were

divided, and on appeal, the Eleventh Circuit ruled

in favor of the states.

When the case reached the Supreme Court,

the outcome of the case depended on two factors:

ﬁ rst, whether Congress intended to allow age dis-

crimination suits against states for money dam-

ages; and second, whether its authority to do so,

derived from its power to enforce the equal rights

provisions of the Fourteenth Amendment, was

sufﬁ cient. Writing for a majority seven justices,

Justice Sandra Day O’Connor determined that

Congress clearly intended to allow individuals to

sue states for money damages. In addressing the

second issue, O’Connor now spoke for ﬁ ve justices.

She conceded that Congress had broad authority

to legislate under Section 5 of the Fourteenth

Amendment, but such legislation must not exceed

the bounds of the Fourteenth Amendment’s guar-

antee of equality. She concluded that although

the Fourteenth Amendment allows states to pass

laws related to age as long as they are rational,

the ADEA punishes states even when they act

rationally. Moreover, because there was insufﬁ -

cient evidence to show that states were guilty of

age discrimination in employment, the ADEA

was a disproportionate remedy and exceeded the

bounds of Congress’s authority under the Four-

teenth Amendment.

With its broad interpretation of the protec-

tion offered states by the Eleventh Amendment,

Kimel reinforced state sovereignty at the expense

of Congress’s authority to guarantee equal rights

under the Fourteenth Amendment.

For more information: Brown, Charles. “Con-

gressional Abrogation of Eleventh Amendment

Immunity by Passing the ADEA and the ADA.”

Baylor Law Review 51 (1999): 340–372; Durham,

Lisa M. “Protection from Age Discrimination for

State Employees: Abrogation of Eleventh Amend-

ment Sovereign Immunity in the Age Discrimina-

tion in Employment Act.” Georgia Law Review 33

(1999): 541–601.

—Susan Gluck Mezey

Korematsu v. United States 323 U.S. 214

(1944)

In Korematsu v. United States, the Supreme

Court upheld the relocation of over 120,000 Japa-

nese Americans to camps during World War II.

This case questioned the extent of the powers of

the executive and the legislative branches.

After the surprise attack on Pearl Harbor on

December 7, 1941, and the entrance of the United

States into World War II with a declaration of war,

the president and Congress took action to prevent

espionage and enhance national security. These

actions forced many Americans, about 120,000,

to leave their homes and move to an internment

camp for the remainder of the war.

President Franklin D. Roosevelt issued Execu-

tive Order 9066, and Congress created statutes

412 Korematsu v. United States

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that allowed the military to exclude Japanese-

American citizens from areas deemed critical

to national defense during World War II. Japa-

nese-American citizens were forced to leave their

homes on the West Coast and move to relocation

camps. Fred Korematsu refused to leave his home

in San Leandro, California, and was arrested and

convicted for violating Civilian Exclusion Order

No. 34. He appealed his conviction to the circuit

court of appeals, who conﬁ rmed his conviction.

Then, he appealed to the Supreme Court, ques-

tioning whether the president and Congress went

too far in restricting the rights of American citi-

zens of Japanese descent.

By the time of Fred Korematsu’s appeal, the

Supreme Court had heard many cases relating

to the internment camps and the power of the

government to detain citizens in a time of war.

Yasui v. United States, 30 U.S. 115 (1943), and

Hirabayashi v. United States, 320 United States

81 (1943), held that it was constitutional to impose

curfews based on a person’s ancestry.

The Supreme Court upheld Korematsu’s con-

viction and sided with the government in a 6-3

decision. The opinion of the court was written by

Justice Hugo Black and joined by Chief Justice

Harlan Fiske Stone, Justice Stanley Reed, Justice

William O. Douglas, Justice Wiley Rutledge,

This 1942 photograph shows the Mochida family awaiting the evacuation bus to an internment camp.

(National Archives)

Korematsu v. United States 413

xviii+446_EofUSConsti-v1.indd 413 3/12/09 3:05:49 PM

and Justice Felix Frankfurter. The Court found

that the need to protect the national security of the

country during a time of war and protect against

espionage outweighed the individual rights and

liberties of Korematsu and American citizens of

Japanese descent, though the Court did acknowl-

edge the hardships and racial discrimination asso-

ciated with moving Japanese-American citizens

to internment camps. In this case, pressing public

needs justiﬁ ed racial discrimination since there

was a military purpose. The fact that the country

was engaged in a war played a major role in this

decision. Justice Owen Roberts and Justice Frank

Murphy dissented.

The decision in Korematsu v. United States has

been very controversial, although it has not been

overturned. Petitioner Fred Korematsu later had

his conviction overturned in 1983 before his death

in 2006. At the end of World War II, the Japanese-

American citizens could return to their homes,

even though many had lost their property, which

the federal government compensated them for in

1948. The U.S. government ofﬁ cially apologized

for the internment, issued by President Ronald

Reagan in 1988, and beginning in 1990 compen-

sation was paid to surviving detainees.

In addition to upholding the relocation, Kore-

matsu is also important for another reason. In

that case, the Court for the ﬁ rst time established

the concept of suspect classiﬁ cation. Justice Black

contended that the use of race as a form of clas-

siﬁ cation was suspect and that it would be sub-

ject to increased or heightened scrutiny. Hence,

even though the Court declared race suspect in

this case, it found a compelling governmen-

tal interest to impose internment based on

race and afﬁ rmed its use. In subsequent cases the

Court would eventually ﬁ nd other classiﬁ cations

either to be suspect or semi-suspect.

For more information: Alonso, Karen. Kore-

matsu v. United States: Japanese-American

Internment Camps. Springfield, N.J.: Enslow

Press, 1998; Tushnet, Mark, ed. The Constitu-

tion in Wartime. Durham, N.C.: Duke University

Press, 2005.

—Carol Walker

Kovacs v. Cooper 336 U.S. 77 (1949)

In Kovacs v. Cooper, the U.S. Supreme Court

voted 5-4 to deny the First Amendment claim of

Kovacs that the City of Trenton, New Jersey’s ordi-

nance to ban the use of any sound system emitting

“loud and raucous” noises on its public streets vio-

lated the First and Fourteenth Amendments

including the violation of his due process. The

conviction in the City of Trenton was upheld by

the New Jersey Supreme Court. The U.S. Supreme

Court upheld the lower courts’ decision.

The City of Trenton’s ordinance No. 430 made

it unlawful to “play, use or operate . . . on or upon

the public streets, alleys and or thoroughfares . . . ,

any device known as a soundtruck, loud speaker or

sound ampliﬁ er, or any vehicle operated or stand-

ing upon said streets or public places.” In ques-

tion was the City of Trenton’s ordinance. Was it

a violation of a person’s right of expression and

participation?

The appellant was found guilty by police judge

Cooper of the City of Trenton of violating Ordi-

nance No. 430 of the City of Trenton, New Jersey.

At the trial in the Trenton Police Court, a patrol-

man testified that he heard loud music coming

from a broadcasting truck. Once the truck was

located on a public street near a public building,

the patrolman no longer heard music. He heard

a man’s voice, which was later identified as the

appellant’s, being broadcast from the truck. The

appellant even admitted that he was the individ-

ual that was broadcasting the music and speak-

ing into the ampliﬁ er. Although there was no real

known reason for the broadcast cited in the police

court, the Supreme Court’s opinion was that the

appellant was broadcasting his views about a labor

dispute that was going on in the City of Trenton

at the time.

The majority opinion and judgment of the

court was announced by Justice Stanley Reed, and

joined by Chief Justice Fred Vinson, and Justice

Harold Burton.

The Supreme Court decided that it was not a

violation of the Fourteenth Amendment regarding

his freedom of speech, assemblage, or freedom to

communicate. And the Court found that it was a

far cry to claim that the ordinance violated his due

414 Kovacs v. Cooper

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process because its language was too obscure and

vague to be able to interpret its true meaning of

the words “loud and raucous.” The Court felt that

a regular person would be able to determine that

“loud and raucous” noises would be found unac-

ceptable in a public place.

In upholding the city’s ordinance, it was pointed

out that it speciﬁ cally applied to only vehicles that

were being operated on the city’s streets with

sound ampliﬁ ers or some type of device that could

“emit loud and raucous noises.” The ordinance

speciﬁ cally targeted the use of sound trucks and

other sound ampliﬁ cation devices. The Supreme

Court stated that the city of Trenton should have

the right to bar or ban sound trucks that broadcast

a loud noise on behalf of its public’s interest. Such

a vehicle can blare such a loud noise as to “rise

above other street noises,” which can intrude or

interfere with the daily business or any activity on

or near the public streets.

The ban itself does not infringe on the right

of free speech, and the Court feels that the ordi-

nance is justiﬁ ed. The city barred sound trucks,

but there is no other restriction on communica-

tions such as “the human voice, by newspapers,

by pamphlets,” etc. to elicit a “willing audience.”

It was also mentioned that a public street is an

accepted place for some form of speech and com-

munication but not without some limitation refer-

ring to “loud and raucous” noises.

The concurring opinion was held by Justice

Felix Frankfurter and Justice Robert H. Jackson.

Justice Frankfurter concluded that nothing in

the Constitution prevents the state of New Jersey

from approving the city of Trenton to pass laws

that they feel appropriate to deal with certain

matters such as sound trucks.

A concern Justice Frankfurter addressed was

the “preferred position of freedom of speech.”

In other words, the power of state should refrain

from passing laws limiting freedom of speech, as a

matter of the “exception not the rule.”

He also stated that the Constitution protects free-

dom of speech, which includes the right to commu-

nicate by whatever means necessary. Sound trucks

are a form of communication and should be pro-

tected just like any other form of communication.

In Justice Jackson’s opinion, he agreed that the

Trenton ordinance was legal. He said that such a

device does disrupt the “quiet enjoyment of home

and park and with safe and legitimate use of street

and market place.” Freedom of speech should not

include such use of a device as to “drown out the

natural speech of others.” Therefore, it should be

under the regulation of the local authorities to

maintain order in the interest of the community.

He also stated that it was not a violation of

Kovacs’s due process, because the ordinance was

not “censoring” his broadcast. But Justice Jack-

son also agreed with Justice Hugo Black when

it came to the definition of “loud and raucous”

noises.

The dissenting opinion was held by Justices

Frank Murphy, Black, William O. Douglas,

and Wiley B. Rutledge. Justice Black’s main con-

tention was that the appellant was not charged or

convicted for operating a sound truck that emits

“loud and raucous” noises, but was charged with

playing, operating, and using a device known as

a sound truck, which violated the city ordinance.

There was no proof offered that the truck even

emitted noise considered “loud and raucous.”

If he was convicted of “operating a machine

that emitted loud and raucous noises” then “he

was convicted on a charge for which he was never

tried.” His due process was violated. The New Jer-

sey Supreme Court conﬁ rmed only the version of

the city of Trenton’s ordinance that he was origi-

nally found guilty of.

Justice Black also made reference to the Saia v.

New York, 334 U.S. 558 (1948), case inasmuch as it

pertained to “censorship.” In that case, the Court

struck down a city ordinance which required any-

one who wanted to use a sound truck within the

city limits to obtain permission from the chief of

police. In short, the Court’s decision was not based

on the all-out ban of amplifying devices but the

fact that one had to obtain permission from the

chief of police to use such a device. That left the

discretion solely up to the chief of police which

could lead to a form of censorship. The chief of

police had “arbitrary power” over who could and

could not have use of such a device in or upon

public property.

Kovacs v. Cooper 415

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When deciding that case, Justice Black said

loud speakers were put on “the same constitutional

level as freedom to speak on streets without such

devices, freedom to speak over radio, and free-

dom to distribute literature.” He also stated that

all forms of communication, present and future,

should be protected by the First Amendment and

free from censorship.

Justice Black concluded by saying that some

forms of communication can be abused and be

“an intolerable nuisance.” But a city could provide

alternatives, such as certain hours of the day where

one could use such a device, which would be better

than completely banning said devices altogether.

Justice Rutledge’s dissent was based more on

the fact that a majority upheld a conviction where

what actually constituted the crime was still

unclear. There were too many differing views. He

conceded that “state power” is capable of balanc-

ing the right to free speech and “freedom from

public nuisances,” but to forbid it altogether is

unacceptable.

For more information: Kelly, Alfred H., Win-

fred A. Harbison, and Herman Belz. The Ameri-

can Constitution: Its Origins and Development.

New York: W.W. Norton & Company, 1991.

—Thomas Caiazzo

Kyllo v. United States 533 U.S. 27 (2001)

In Kyllo v. United States, the U.S. Supreme

Court held that the use of a thermal-imaging

device aimed at the outside of a private home to

detect relative amounts of heat inside the home

was a search within the meaning of the Fourth

Amendment to the U.S. Constitution.

Federal agents suspected that Kyllo was grow-

ing marijuana inside his house. Knowing that

the grow lights necessary for indoor cultiva-

tion produce significant amounts of heat, the

agents scanned the outside of the house with a

thermo-imaging device for the purpose of detect-

ing amounts of heat that would be indicative of

such lamps. The scan showed that portions of the

exterior of Kyllo’s house were warmer than other

portions and substantially warmer than adjacent

homes. With this imaging information, along with

tips from informants and utility bills, the agents

obtained a search warrant from a federal magis-

trate. In the search, the agents found a growing

operation with more than 100 plants. After Kyllo

attempted unsuccessfully to have the seized evi-

dence excluded from the case, the case was even-

tually appealed to the U.S. Supreme Court.

The central issue for the Court was whether

scanning Kyllo’s home with this device constituted

a search. If it did, then the absence of a warrant

authorizing its use would make the search illegal,

and the information it provided could not be used

to obtain a search warrant or otherwise be used

against Kyllo. Although Anglo-American law has

traditionally given heightened protection to the

privacy associated with a home, the visual sur-

veillance of a home has never been considered to

be a search. Over the course of the last century,

the Court has had to consider the constitutionality

of law enforcement ofﬁ cers’ using various kinds of

technology in surveillance activities. In 1986, the

Court held that low-flying aerial surveillance of

private homes and surrounding areas does not con-

stitute a search. In that same year, the Court also

held that enhanced aerial photography of an indus-

trial complex was a search, but made it clear that

the case did not involve a home. The Court saw

Kyllo’s case as an opportunity to determine what

limits, if any, should be put on the use of sense-

enhancing technology not in general use to search

a home. The Court held that the use of such tech-

nology to obtain information regarding the interior

of a home (that could not have been obtained with-

out physical intrusion into the home) constitutes a

search. The Court argued that to hold otherwise

would erode an important area of privacy, one that

was protected from government intrusion under

the original intent of the Fourth Amendment.

Inasmuch as the agents had not obtained a

warrant prior to searching Kyllo’s house with the

thermo-imaging device, it followed that the infor-

mation obtained from it could not be used against

him. After reaching this conclusion, the Court

sent the case back to the trial court to determine

if the other evidence presented to the magistrate

who issued the search warrant was sufficient

416 Kyllo v. United States

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to constitute probable cause. Without probable

cause, the warrant would have been invalid and

the marijuana plants that were discovered during

the search would have been inadmissible under

the exclusionary rule.

For more information: LaFave, Wayne R., Jer-

old H. Israel, and Nancy J. King. Criminal Pro-

cedure. 4th ed. St. Paul, Minn.: Thomson/West,

2004; McKenzie, Daniel. “What Were They Smok-

ing?: The Supreme Court’s Latest Step in a Long

Strange Trip Through the Fourth Amendment:

Kyllo v. United States, 533 U.S. 27 (2001).” Jour-

nal of Criminal Law & Criminology 93 (2002):

153–194.

—Steven B. Dow

Kyllo v. United States 417

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418

ﱶﱷﱸ

labor unions

The Constitution inﬂ uences labor regulation both

in the private sector and in the public sector. The

Supreme Court has often limited the reach of pri-

vate-sector labor laws so as to avoid confronting

constitutional issues.

The National Labor Relations Act (NLRA) is

the primary federal law governing labor relations

in the private sector. The NLRA is administered

by the National Labor Relations Board (NLRB). In

NLRB

V. JONES & LAUGHLIN STEEL CORP., 301 U.S.

1 (1937), the Supreme Court upheld the NLRA

as a valid exercise of Congress’s power under the

commerce clause of the Constitution.

The NLRA limits the expression of both

employers and unions. Under Section 8(a)(1) of the

NLRA, it is a prohibited unfair labor practice for

an employer to “interfere with, restrain, or coerce

employees” in the exercise of their organizational

rights, including their right to be represented by

a union. One way in which an employer can vio-

late the organizational rights of its employees is by

communicating with its employees. However, Sec-

tion 8(c) of the NLRA provides that the “express-

ing of any views, argument, or opinion . . . shall

not constitute or be evidence of an unfair labor

practice . . . if such expression contains no threat

of reprisal or force or promise of benefit.” The

Supreme Court has stated that section 8(c) “merely

implements the First Amendment” (NLRB v.

Gissel Packing Co., 395 U.S. 575, 617 [1969]).

In Gissel, an employer facing an organizational

campaign predicted that the election of a union

would result in a strike, which in turn “could lead

to the closing of the plant” (Gissel, 395 U.S at 588).

The NLRB determined that this and similar state-

ments were threats of reprisal and constituted an

unfair labor practice. The Court in Gissel upheld

the determination of the NLRB and further held

that the employer’s statements were not protected

by the First Amendment. The Court observed that

“an employer’s rights cannot outweigh the equal

rights of the employees to associate freely. . . .

And any balancing of those rights must take into

account the economic dependence of the employ-

ees on their employers, and the necessary ten-

dency of the former, because of that relationship,

to pick up intended implications of the latter that

might be more readily dismissed by a more disin-

terested ear” (Gissel, 395 U.S. at 617).

The NLRA regulates union expression as well

as employer expression. Section 8(b)(4) of the

NLRA, the secondary boycott provision, limits

the ability of unions to exert pressure on those

not directly involved in a labor dispute. Among

other things, section 8(b)(4) makes it an unfair

labor practice for a union to “threaten, coerce, or

restrain any person” to “cease doing business with

any another person.”

Several Supreme Court cases address the rela-

tionship between section 8(b)(4) of the NLRA and

the First Amendment. In NLRB v. Fruit Pack-

ers, 377 U.S. 58 (1964) (Tree Fruits), the union

had a dispute with fruit packing companies that

sold Washington State apples. The union picketed

supermarkets, asking patrons not to buy Wash-

ington State apples. The NLRB determined that

the union had engaged in an unlawful secondary

boycott. The Supreme Court, however, expressed

the concern that “a broad ban against peaceful

picketing might collide with the guarantees of the

First Amendment” (Tree Fruits, 377 U.S. at 63).

As the union asked only patrons to boycott the

struck product (apples) rather than the secondary

xviii+446_EofUSConsti-v1.indd 418 3/12/09 3:05:50 PM

business (the supermarket), the Court determined

that the union’s peaceful picketing was not prohib-

ited by the NLRA.

Tree Fruits’s protection for peaceful picket-

ing that merely “followed” the struck product

was limited in NLRB v. Retail Store Employees,

447 U.S. 607 (1980) (Safeco). The Court in Safeco

announced that picketing a struck product at a

secondary site is prohibited by the NLRA if, by

“encouraging customers to reject the struck prod-

uct, the secondary appeal is reasonably likely

to threaten the neutral party with ruin or sub-

stantial loss” (Safeco, 447 U.S. at 615 n. 11). The

Court also decided, through fractured opinions,

that such picketing was not protected by the First

Amendment.

In Edward J. DeBartolo Corp. v. Florida Gulf

Coast Building & Constr. Trades Council, 485

U.S. 568 (1988), the Court drew a sharp distinc-

tion between picketing and handbilling (leaﬂ et-

ing), announcing that handbilling receives more

First Amendment protection. In DeBartolo, the

union had a dispute with a construction company

that was building a store in a shopping mall. The

union distributed handbills at all mall entrances,

asking customers not to shop at any stores in the

mall until the mall owner (DeBartolo) promised

that all construction at the mall would be done by

“contractors who pay their employees fair wages

and fringe beneﬁ ts” (DeBartolo, 485 U.S. at 570).

There was no picketing at all.

The NLRB found that the union’s handbilling

was an illegal secondary boycott, but the Court

overturned this decision. To avoid the “serious

constitutional problems” that would otherwise

be raised (DeBartolo, 485 U.S. at 575), the Court

held that peaceful handbilling such as the union

conducted was not prohibited by the NLRA. The

Court distinguished its decision in Safeco on the

ground that picketing (as was present in Safeco) is

“qualitatively different from other modes of com-

munication” (DeBartolo, 485 U.S. at 580).

The First Amendment has also shaped the

Supreme Court’s interpretation of the NLRA in

other ways. To avoid confronting constitutional

issues involving the First Amendment’s right

to petition the government, the Supreme

Court has limited the NLRB’s authority to take

action against a party to a labor dispute that ﬁ les a

retaliatory lawsuit (BE & K Constr. Co. v. NLRB,

536 U.S. 516 [2002]; Bill Johnson’s Restaurants,

Inc. v. NLRB, 461 U.S. 731 [1983]). To avoid rais-

ing issues under the First Amendment’s religion

clauses, the Court has limited the jurisdiction of

the NLRB over religiously afﬁ liated institutions

(NLRB v. Catholic Bishop of Chicago, 440 U.S.

490 [1979]).

Because there is pervasive federal regulation

of private-sector labor relations, state and local

regulation is often found to be preempted (over-

ridden) under the supremacy clause in Article

VI of the Constitution. One often repeated rule,

drawn from San Diego Building Trades Coun-

cil v. Garmon, 359 U.S. 236 (1959), is that state

regulation of labor matters is preempted if the

regulated conduct is either arguably protected or

arguably prohibited by the NLRA. Another often

repeated rule, drawn from Machinists v. Wiscon-

sin Employment Relations Comm’n, 427 U.S. 132

(1976), is that states may not regulate conduct that

Congress intended to be unregulated.

In both the private sector and the public sector,

unions are held to have a duty to represent their

members fairly. The development of the duty of

fair representation in the private sector was inﬂ u-

enced by constitutional considerations. The Court

first imposed a duty of fair representation on

unions in Steele v. Louisville & Nashville R. Co.,

323 U.S. 192 (1944), a case involving alleged racial

discrimination by a railway union. The Court in

Steele stated that “constitutional questions arise”

if a union is authorized by statute to be the exclu-

sive representative of employees “without any

commensurate statutory duty toward its members”

(Steele, 323 U.S. at 198). In Teamsters Local 391

v. Terry, 494 U.S. 558 (1990), the Court held that

the Seventh Amendment guarantees the right

of jury trial in an action for breach of the duty of

fair representation.

For more information: Higgins, John E. The

Developing Labor Law. Washington, D.C: BNA

Books, 2006.

—Mark S. Stein

or unions 419

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Laird v. Tatum 408 U.S. 1 (1972)

Laird v. Tatum is a case that called to question

the constitutionality of military intelligence units’

collecting data on civilians and civilian social and

political organizations.

In this case, Arlo Tatum, executive secretary of

the Central Committee for Conscientious Objec-

tors, sued Melvin Laird, the secretary of defense

and other individuals. Ultimately, the Supreme

Court ruled that the individuals who brought suit

lacked standing to do so, because there was no

evidence that they had been negatively affected by

the gathering of intelligence data gathered about

their actions.

This case began with the public revelation, in

an article by Christopher H. Pyle in the Washing-

ton Monthly, that military intelligence units had

been gathering information on civilians and civil-

ian organizations through newspaper clippings,

but also by active surveillance and by breaching

the membership of these organizations. Several of

the individuals and organizations that had been

surveilled, with the assistance of the American

Civil Liberties Union, filed a class action

challenging the constitutionality of the military’s

actions. The case was dismissed in federal dis-

trict court. District of Columbia Court of

Appeals heard the case, and remanded the case

to trial court for an evidentiary hearing.

The Supreme Court then agreed to hear the

case, upon the defendant’s petition, to decide the

issues of justiciablity and standing. The govern-

ment argued that the plaintiffs failed to describe

a genuine injury to their rights and also that the

case was moot because, according to the military,

the programs had ceased. The plaintiffs asked the

Supreme Court to afﬁ rm the ruling of the appel-

lant court, allowing for an evidentiary hearing.

Before oral arguments began, the Court received

an amicus brief from 29 former military intelli-

gence ofﬁ cers and enlisted personnel who stated

that the data collection efforts of the military

went beyond merely clipping newspaper articles,

but also included clandestine operations such as:

agents posing as news reporters during protests

to gather information from willing, though unsus-

pecting civilian participants; personnel who pene-

trated peace organizations; and staking out Martin

Luther King’s grave to discover who visited the

site.

Despite the supporting amicus brief, the

Supreme Court, in a 5-4 decision written by Chief

Justice Warren Burger, reversed the appellate

court’s decision, affirming the dismissal of the

case. The Supreme Court supported the govern-

ment’s view that the data collection was of public

actions that had potential to lead to civil unrest.

The Court also found the case to be nonjusticiable

because there was no injury due to the military’s

actions. Without injury, the case amounted to a

political question.

It is also worth noting that Justice William

Hubbs Rehnquist arguably should have recused

himself from this decision. As the assistant attor-

ney general, Ofﬁ ce of Legal Counsel, Rehnquist

appeared before a congressional subcommittee

to defend the military’s program. Had Rehnquist

recused himself, the decision would have been a

4-4 afﬁ rmation of the Court of Appeals decision,

allowing for an evidentiary trial.

For more information: N.A. “Laird v. Tatum: The

Supreme Court and a First Amendment Challenge

to Military Surveillance of Lawful Civilian Politi-

cal Activity.” Hofstra Law Review 1 (1973): 244–

275; Shaffer, Karen A. “Tatum v. Laird: Military

Encroachment on First Amendment Rights.” Amer-

ican University Law Review 21 (1971): 262–280.

—Tobias T. Gibson

Lamb’s Chapel v. Center Moriches Union

Free School District

508 U.S. 384 (1993)

In L

AMB’S CHAPEL V. CENTER MORICHES UNION FREE

SCHOOL DISTRICT, the Supreme Court held that

a school district’s decision to refuse a church’s

request to use school facilities to show religious

ﬁ lms violated the free speech clause of the First

Amendment. This principle was later upheld in

OOD NEWS CLUB V. MILFORD CENTRAL SCHOOL,

533 U.S. 98 (2001).

In accordance with New York law, a local

school district issued regulations allowing access

to school grounds for certain social, civic, and

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recreational uses, but prohibiting use of school

facilities for religious purposes. After the school

district refused the request of Lamb’s Chapel to

use school facilities for a religious ﬁ lm series about

family values and child-rearing, the church ﬁ led

suit, claiming that the school district’s actions vio-

lated its free speech rights.

The Supreme Court held that denying the

church access to school premises to exhibit the

ﬁ lm series violated the free speech clause of the

First Amendment. In his opinion for the Court,

Justice Byron White explained that the school had

created a nonpublic forum. Although access to a

nonpublic forum can be based on subject matter

or speaker identity, the distinctions drawn must be

reasonable and may not discriminate based on the

speaker’s viewpoint. Justice White explained that

the school district’s prohibition applied equally

to all religions, but it discriminated on the basis

of viewpoint by permitting school property to be

used for the presentation of all views about family

issues except those dealing with the subject from a

religious viewpoint. Therefore, the school district’s

regulations denied the request of Lamb’s Chapel

solely to suppress its point of view on an otherwise

permissible subject.

Furthermore, the Court held that permitting

the school district’s property to be used to exhibit

the religious ﬁ lm series would not have constituted

an establishment of religion. Because the film

series would not have been shown during school

hours, it would not have been sponsored by the

school, and it would have been open to the public,

there was no realistic danger that the community

would think the school district was endorsing reli-

gion in general or Christianity in particular.

For more information: Hitchcock, James. The

Supreme Court and Religion in American Life.

Vol. 1, The Odyssey of the Religion Clauses. Princ-

eton, N.J.: Princeton University Press, 2004.

—Winston E. Calvert

Lawrence v. Texas 539 U.S. 558 (2003)

In its six to three decision in Lawrence v. Texas, the

Supreme Court declared that Texas’s homosexual

sodomy law violates the due process clause that

permits adults the liberty to engage in consensual

intimate conduct in private. Justice Anthony M.

Kennedy’s majority opinion explicitly overturned

the Court’s earlier sodomy case, B

OWERS V. HARD-

WICK, 478 U.S. 186 (1986), while Justice Sandra

Day O’Connor’s concurrence focused attention

on the Texas statute’s equal protection vio-

lation because it was directed against a group,

same-sex couples, rather than an act. Lawrence is

an example of a later generation’s looking afresh

at enduring social issues and laws in the light of

constitutional principles.

The Court found that the history of sodomy

regulations presented in Bowers misrepresented

the facts and was misconstrued by the majority in

that case to ground their shrunken view of the lib-

erty and privacy interests at stake both then and

now. The Court also noted that sodomy laws, espe-

cially those directed at only homosexual conduct,

were rarely enforced except in cases of predatory

acts, their main purpose being to demean a group

of people, such as the Court found was true of the

state constitutional amendment it struck down in

OMER V. EVANS, 517 U.S. 620 (1996).

The dissent by Justice Antonin Gregory

Scalia conjectured that as many of the nation’s

laws rested on a moral basis alone as understood

by the people, they were in danger of being over-

turned, and argued that as a constitutional right to

engage in sexual intercourse outside of marriage is

not rooted in the nation’s history or traditions, it is

a misapplication of the doctrine of substantive

due process to have applied any standard other

than rational basis scrutiny. Scalia expressed fear

that in the wake of Lawrence no traditional mor-

als offense could be sustained and that this is a

dangerous decision with the potential to upset the

American social order itself given the legitimate

state interest in furthering the moral choices of

the people, including majority opinion regarding

permissible sexual behavior, which in Bowers pro-

vided the rational basis for the Georgia sodomy

statute that withstood constitutional challenge.

Justice Clarence Thomas’s individual dissent

labeled the Texas law, and all others similar to

it, “uncommonly silly” and stated that were he a

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