Schultz D. Encyclopedia of the United States Constitution

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president. Originally, the Constitution permitted

state legislatures to select U.S. senators, and mem-

bers of the Supreme Court were to be appointed

by the president, subject to conﬁ rmation by the

Senate. The only public ofﬁ cials whom the peo-

ple could select were the members of the House

of Representatives, rendering rather thin any

notion that the citizens had broad franchise rights

in the selection of the national government.

Initially the Constitution appears to have left

that right up to the states, which generally limited

the franchise to white male property owners, who

were citizens of a certain age and occasionally of

a speciﬁ c religious faith. For example, in MINOR

V. HAPPERSETT, 88 U.S. 162 (1875), the United

States Supreme Court rejected a claim by a Mis-

souri woman that, as a citizen, the Constitution

gave her a right to vote. The Court dismissed her

claim, indicating that citizenship did not necessar-

ily include the right to vote; states could decide

who had that right.

Commencing after the Civil War, a series of

constitutional amendments were adopted that

addressed the right to vote. The Fifteenth

Amendment prohibited states from denying the

right to vote on account of “race, color, or previ-

ous condition of servitude.” The Seventeenth

Amendment permitted the direct election

of United States senators. The Nineteenth

Amendment enfranchised women. The Twenty-

fourth banned poll taxes. The Twenty-sixth

directed states to allow qualiﬁ ed citizens who were

age 18 or older to vote. Yet none of these amend-

ments afﬁ rmatively granted the right to vote.

It was not until the 1940s that the Supreme

Court afﬁ rmatively addressed the constitutional

right to vote. In U

NITED STATES V. CLASSIC, 313 U.S.

299 (1941), in a case arising out of vote fraud in a

Louisiana federal election primary, the Court was

faced with the issue of whether one has a right

to vote as a primary question, and then whether

depriving a person of that right came within the

meaning of a federal criminal law that made it ille-

gal to “injure a citizen in the exercise ‘of any right

or privilege secured to him by the Constitution or

laws of the United States.’ ” The Court stated:

We come then to the question whether that right

is one secured by the Constitution. Section 2

of Article I commands that Congressmen shall

be chosen by the people of the several states by

electors, the qualiﬁ cations of which it prescribes.

The right of the people to choose, whatever its

appropriate constitutional limitations, where in

other respects it is deﬁ ned, and the mode of its

exercise is prescribed by state action in confor-

mity to the Constitution, is a right established

and guaranteed by the Constitution and hence

is one secured by it to those citizens and inhabit-

ants of the state entitled to exercise the right.

In addition, in REYNOLDS V. SIMS, 377 U.S. 533

(1964), the Court embraced the principle of equal

representation for equal numbers of people—one

person, one vote for the purposes of reap-

A cover of Harper’s Weekly depicting blacks voting

for the ﬁ rst time, 1867

(Library of Congress)

622 right to vote

vi+904_EofUSConsti-v2.indd 622 3/20/09 2:18:27 PM

portionment. More importantly, in Reynolds the

Supreme Court again reafﬁ rmed that the Consti-

tution protects the right to vote in federal elections.

Furthermore, in Reynolds the Court drew a par-

allel between the right to vote and right to procre-

ate in S

KINNER V. OKLAHOMA, 316 U.S. 535 (1942),

declaring the right to vote as fundamental.

Locating a constitutional text to support the

right to vote in state elections is more problem-

atic. In Harper v. Virginia State Board of Elec-

tions, 383 U.S. 663 (1966), in striking down the

imposition of a poll tax in state elections, the

Supreme Court ruled that the right to vote in

state elections was located in the First Amend-

ment by way of the Fourteenth Amend-

ment’s due process and equal protection

clauses. Although the tax met traditional constitu-

tional standards, it was neither racially discrimi-

natory nor indefensible as rational policy, but the

Court found that it unconstitutionally singled out

the poor. More importantly, the Court yet again

afﬁ rmed the importance of voting, stating that

voting is a “fundamental political right, because

preservative of all rights.” The legacy of Classic,

Reynolds, and Harper is that these three cases

stand for the proposition that voting is a fun-

damental right that must be subject to strict

scrutiny. Collectively, these cases would seem

to suggest that interference with, or regulation

of, the fundamental right to vote must be subject

to strict scrutiny, and that only if compelling

governmental interests are asserted, may it

be limited.

Enfranchisement of African Americans

The battle by African Americans to obtain the

right to vote was long and arduous. Originally,

the Constitution was silent on the right of Afri-

can Americans to vote; instead, Article I, sec-

tion 2 referred to them only as “other persons” and

counted them as only three-ﬁ fths of a free person.

After the Civil War and during Reconstruction,

African Americans were permitted to vote, and

they elected several members of Congress in the

South. In 1870 the Fifteenth Amendment made

it unconstitutional to deny the right to vote on

account of race.

When Reconstruction ended, so did effective

franchise rights for African Americans. Many

Southern states enacted a variety of restrictions

on African-American voting rights. Some states

instituted poll taxes that required African Ameri-

cans to pay a fee to vote. Others imposed literacy

tests upon African Americans that asked them to

answer often arcane and trivial questions in order

to vote. Still other states enacted laws that declared

that individuals could vote only if their grandfa-

ther had that right, or used white primaries as a

means to exclude African Americans from partici-

pating in elections. Through these laws, as well as

by outright intimidation by the Ku Klux Klan and

other groups, African Americans effectively were

without franchise rights until the 1960s.

The Supreme Court initially upheld literacy

tests and poll taxes as constitutionally permis-

sible means by which to maintain a responsible

and informed electorate, but in the 1920s Demo-

cratic Party primaries in which participation was

restricted to whites began to crumble under judi-

cial attack in cases such as Smith v. Allwright, 321

U.S. 649 (1944).

It was not until the 1960s that the Supreme

Court and the federal government began to take

serious steps to protect the right to vote for African

Americans. The Twenty-fourth Amendment

in 1964 made the poll tax illegal; reapportionment

cases declared malapportionment on account of

race to be unconstitutional, and these cases also

established a constitutional right to vote at the

state and federal levels.

However, it was the 1965 Voting Rights Act

that had the biggest impact on African-Ameri-

can franchise rights. The Voting Rights Act was

enacted in 1965 and amended or reauthorized in

1970, 1975, 1982, and 2006. Section four of the

act outlawed some practices such as literacy tests,

section two precluded states from diluting voting

on account of race, and other parts of the act pro-

vided for new legal remedies and powers of the

federal government to intervene to protect the

African-American franchise in the states.

In addition to African Americans, other groups

have had their voting rights addressed by the

courts, Congress, or the Constitution. In 1924,

right to vote 623

vi+904_EofUSConsti-v2.indd 623 3/20/09 2:18:27 PM

Congress gave Indians the right to vote. In 1920

the Nineteenth Amendment enfranchised women,

and in 1971 the Twenty-sixth Amendment directed

states to allow qualiﬁ ed citizens who were age 18

or older to vote.

However, two groups still do not have con-

stitutionally secure voting rights. Aliens may be

denied the right to vote, and in Richardson v.

Ramirez, 418 U.S. 24 (1974), the Supreme Court

upheld a state law denying ex-felons franchise. As

the Richardson case pointed out, many states deny

ex-felons the right to vote, often for life, thereby

affecting their rights to participate in elections

and the political process. Estimates are that up to

six million ex-felons, many of them people of color,

are denied their right to vote.

Finally, while franchise is nearly universal in

the United States, many individuals choose not to

vote, often with a turnout of less than half the eli-

gible voters for an election.

For more information: Grofman, Bernard, Lisa

Handley, and Richard Niemi. Minority Represen-

tation and the Quest for Voting Equality. New

York: Cambridge University Press, 1992; Keys-

sar, Alexander. The Right to Vote: The Contested

History of Democracy in the United States. New

York: Basic Books, 2001.

—David Schultz

Ring v. Arizona 536 U.S. 584 (2002)

In Ring v. Arizona, the U.S. Supreme Court

ruled that the imposition of capital punish-

ment by a judge, rather than a jury, violates the

Sixth and Fourteenth Amendments of the

Constitution. This case immediately impacted the

sentences of at least 168 death row inmates in ﬁ ve

states—Arizona, Colorado, Idaho, Montana, and

Nebraska.

Timothy Stuart Ring and two other former

law enforcement ofﬁ cers planned and executed

the robbery of a Wells Fargo armored truck at a

shopping mall in Glendale, Arizona, on Novem-

ber 28, 1994. During the robbery, Ring killed

the security guard, John Magoch, with a single

shot to the head at close range using a silencer.

The three accomplices stole an estimated

$833,798. Approximately one month later, police

received a tip from one of the accomplice’s ex-

girlfriends, suggesting that Ring and the others

were involved in the heist. The FBI and Glen-

dale police secured a warrant to tap the men’s

phones, which in turn yielded incriminating

evidence. Police also observed that the three

men went on wild spending sprees following the

robbery, purchasing high-ticket items with cash.

With a warrant, police searched Ring’s home and

found the murder weapon, a silencer, stolen cash,

and incriminating notes. Ring was subsequently

charged with ﬁ rst-degree murder, conspiracy to

commit murder, armed criminal action, and bur-

glary. The jury found Ring guilty on all counts,

but under Arizona law the judge—not the jury—

imposed the sentence. The judge ordered Ring to

be executed by lethal injection.

In a 7-2 decision, the U.S. Supreme Court

reversed and declared the Arizona law uncon-

stitutional. Writing for the majority, Ruth Bader

Ginsburg drew upon the Court’s decision in

Apprendi v. New Jersey (2000). In Apprendi, the

Supreme Court struck down a state sentencing

law that allowed trial judges to lengthen a penalty

by two years if it was determined the crime was

motivated by hate. According to Ginsburg, “The

right to trial by jury guaranteed by the

Sixth Amendment would be senselessly dimin-

ished if it encompassed the factﬁ nding necessary

to increase a defendant’s sentences by two years,

but not the factﬁ nding necessary to put him to

death.” Joining Ginsburg were David H. Souter,

John Paul Stevens, Anthony M. Kennedy,

Antonin Gregory Scalia, and Clarence

Thomas. Justice Stephen G. Breyer delivered

a concurring opinion. The two dissenters were

Arizonans Sandra Day O’Connor and Chief

Justice William Hubbs Rehnquist. Justice

O’Connor believed that the decision would have

a destabilizing effect on the criminal justice sys-

tem by opening the doors to scores of challenges

in other states.

The full impact of Ring has yet to be deter-

mined. Some death row inmates in the affected

states could be retried, resentenced, or have their

624 Ring v. Arizona

vi+904_EofUSConsti-v2.indd 624 3/20/09 2:18:27 PM

death penalties commuted to life in prison. The

Ring decision appears to be one in a line of recent

cases where the Supreme Court has restricted the

death penalty. See A

TKINS V. VIRGINIA (2002)—the

Court struck down the death penalty for the men-

tally retarded—and Roper v. Simmons (2005),

where the Court invalidated the death sentence

of a 17-year-old. The Atkins and Roper decisions

were based on the cruel and unusual proscription

in the Eighth Amendment.

For more information: Banner, Stuart. The

Death Penalty: An American History. Boston:

Harvard University Press, 2002; N.A. “The Death

Penalty and International Law,” William and

Mary Bill of Rights Journal 13 (2005): 305 (intro-

duction to symposium issue).

—Richard J. Hardy

ripeness

The doctrine of ripeness has been derived from a

particular understanding of the limited constitu-

tional authority of the judiciary.

Under Article III, Section 2 of the United

States Constitution the judicial power extends to

certain “cases” and “controversies.” The Supreme

Court has construed this “case” and “controversy”

language in Article III of the U.S. Constitu-

tion as limiting the judicial power to adjudication

of those lawsuits that raise live disputes in which

the parties have a present interest.

The doctrine of ripeness precludes adjudica-

tion by the federal courts of abstract controversies

in the absence of present and concrete hardship.

If the harm that a plaintiff claims he or she will

suffer remains contingent on future events that

are far from certain to occur, or the government

has not yet rendered a ﬁ nal decision on the matter

at issue, the case is not yet ripe for judicial consid-

eration. In Abbott Laboratories v. Gardner, 387

U.S. 136 (1967), the Supreme Court explained

that the basic rationale of the ripeness doctrine is

to prevent the courts, through avoidance of pre-

mature adjudication, from entangling themselves

in abstract disagreements over administrative pol-

icies, and also to protect the agencies from judicial

interference until an administrative decision has

been formalized and its effects felt in a concrete

way by the challenging parties.

The Supreme Court has set out a two-part test

for determining ripeness, requiring evaluation

of both (1) “the fitness of the issues for judicial

decision” at this time and (2) “the hardship to the

parties of withholding court consideration” (Ohio

Forestry Ass’n, 523 U.S. at 733; Abbott Laborato-

ries, 387 U.S. at 149).

First, in terms of the fitness of the issue for

adjudication, the courts look to whether the issue

is fully developed in the context of a concrete and

present dispute. The Court is reluctant to hear a

facial challenge to a regulation or rule that has not

yet been applied, because “judicial appraisal . . . is

likely to stand on a much surer footing in the con-

text of a speciﬁ c application of [the] regulation”

(Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 164

[1967]). However, preenforcement relief is not

always barred, if the party challenging the gov-

ernment rule can make a compelling showing on

the second prong of the test, for example, that the

party will endure high costs in complying with the

rule or risks substantial civil or criminal penalties

if the rule is violated (see, e.g., Abbott Laborato-

ries, supra).

Second, with respect to the showing of hard-

ship by delaying adjudication, the courts consider

“the degree and nature of the [government rule’s]

present effect on those seeking relief.” Thus, “[a]

case may lack ripeness . . . even when it involves a

ﬁ nal agency action presenting a purely legal ques-

tion,” where the action has no “sufﬁ ciently direct

and immediate” impact on the parties (Alascom,

Inc. v. Federal Communications Comm’n, 727

F.2d 1212, 1217 (D.C. Cir. [1984]).

For more information: Aman, Alfred C., Jr., and

William T. Mayton. Administrative Law. 2d ed.

St. Paul, Minn.: West Group, 2001; Nichol, Gene

R., Jr. “Ripeness and the Constitution,” University

of Chicago Law Review 54, no. 153 (1987): 156–

160; Pierce, Richard J., Jr., Sidney A. Shapiro, and

Paul R. Verkuil. Administrative Law and Process.

4th ed. St. Paul, Minn.: West Group, 2004.

—Gregory C. Sisk

ripeness 625

vi+904_EofUSConsti-v2.indd 625 3/20/09 2:18:28 PM

Roberts, John G., Jr. (1955– ) Supreme

Court justice

John G. Roberts, Jr., is the 17th chief justice of

the Supreme Court of the United States. After

nomination by President George W. Bush and

conﬁ rmation by the U.S. Senate, he was sworn

in on September 29, 2005, at the age of 50, as the

youngest chief justice in the last 200 years.

Roberts was born in Buffalo, New York, and

grew up a Roman Catholic in Indiana. He lives in

Bethesda, Maryland, and is married to Jane Marie

Sullivan. They have two children. He received a

bachelor’s degree summa cum laude in 1976 after

only three years at Harvard, entered Harvard

Law School, and became managing editor of the

Harvard Law Review. He graduated magna cum

laude from law school in 1979.

During the 1980 term, he served as a law clerk

for the then-associate Supreme Court justice (later

chief justice and Roberts’s predecessor) Wil-

liam Hubbs Rehnquist. From 1981 to 1982 he

was special assistant to the U.S. attorney general,

William French Smith. From 1982 until 1986 he

served as associate counsel to President Ronald

Reagan in the White House. From 1989 to 1993 he

was principal deputy solicitor general of the U.S.

Department of Justice. He argued 39 cases before

United States Supreme Court and won 25, placing

him among the most experienced litigators.

From 1986 to 1989 and from 1993 to 2003,

Roberts entered private practice as an associate at

the law ﬁ rm of Hogan & Hartson in Washington,

D.C., where he developed a civil litigation practice

and ran the appellate division. As an attorney and

member of the D.C. Bar, he was widely involved

in bar activities. Roberts’s arguments within the

Supreme Court’s jurisdiction extend over a wide

range of issues, including antitrust, arbitration,

admiralty, administration, free speech, Indian

affairs, taxation, labor, civil rights, and criminal

law. He represented at different times a number of

states, defending diverse state, health, and welfare

policies before the United State Supreme Court.

He also represented 18 states pursuing antitrust

claims in the United States v. Microsoft case.

In 2003, when the U.S. Senate confirmed

his nomination by unanimous consent, he was

appointed to the United States Court of Appeals

for the District of Columbia Circuit, widely

considered as the country’s most important inter-

mediate appellate court. At that time Roberts

wrote 49 opinions; only two were not unanimous.

He dissented only three times.

During Senate Judiciary Committee hearings

on his nomination, Roberts testified about his

views on jurisprudence. Roberts was thought to

be conservative by temperament but not essen-

tially by ideology. He supports limited govern-

ment and believes in a narrow interpretation of

the U.S. Constitution. In October 2005, when the

Court began its 2005–06 session, he presided over

his ﬁ rst oral arguments, and in January 2006, the

Roberts Court decided the first case argued

before it.

For more information: McElroy, Lisa Tucker.

John G. Roberts, Jr.: Chief Justice. Minneapolis,

Minn.: Lerner Publications, 2007.

—Jurij Toplak

Roberts Court (2005– )

The Roberts Court began on September 29, 2005,

when John Glover Roberts, Jr., became chief

justice of the United States Supreme Court. Origi-

nally, President George W. Bush had nominated

him to the position held by retiring associate jus-

tice Sandra Day O’Connor (July 19, 2005);

however, following the death of Chief Justice Wil-

liam Hubbs Rehnquist (September 3, 2005),

President Bush withdrew the nomination and

resubmitted it for the chief justice seat (September

6, 2005), asking Congress to conﬁ rm the nomina-

tion in time for the beginning of the fall term in

October. Despite opposition from liberal Demo-

crats, the Senate Judicial Committee approved his

nomination. The full Senate approved the nomi-

nation on September 29, 2005. He was sworn in

a short time later by Associate Justice John Paul

Stevens in the East Room of the White House.

The members of the Roberts Court at the begin-

ning, in order of their accession to the Court, were

John Paul Stevens (appointed by President Gerald

Ford, 1975), Sandra Day O’Connor (appointed by

626 Roberts, John G., Jr.

vi+904_EofUSConsti-v2.indd 626 3/20/09 2:18:28 PM

President Ronald Reagan, 1981), Antonin Greg-

ory Scalia (appointed by President Reagan,

1986), Anthony McLeod Kennedy (appointed

by President Reagan, 1988), David Hackett

Souter (appointed by President George H. W.

Bush, 1990), Clarence Thomas (appointed

by President G. H. W. Bush, 1991), Ruth Bader

Ginsburg (appointed by President William Jef-

ferson Clinton, 1993), and Stephen G. Breyer

(appointed by President Clinton, 1994). On Febru-

ary 1, 2006, Samuel Alito, Jr., joined the court

to replace the retiring O’Connor.

The retirement of O’Connor and the accession

of Alito in the Court’s mid-term meant that sev-

eral decisions were subsequently decided without

the full participation of either. The cases of Gar-

cetti v. Ceballos (547 U.S. 410 [2006]), Hudson

v. Michigan (547 U.S. 586 [2006]), and Kansas v.

Marsh (547 U.S. 1,037 [2006]) were decided by

4-4 votes, allowing the ruling in the lower court

to stand.

Chief Justice Roberts presided over the ﬁ rst case

before the Roberts Court on October 3, 2005, as

the Court began the fall term of its 2005–06 ses-

sion. On November 8, 2005, the opinion of the ﬁ rst

case decided by the Roberts Court was delivered

by Associate Justice Stevens. IBP, Inc. v. Alvarez,

unanimously decided, was viewed by observers as

upholding a tradition that the ﬁ rst case in a new

chief justice’s court is decided unanimously. This

“honeymoon” period of the Roberts Court ended

with the decision in G

ONZALES V. OREGON, 546 U.S.

243 (2006). The chief justice joined the dissent of

Antonin Scalia and Clarence Thomas in opposing

physician-assisted suicide allowed by the state of

Oregon for the terminally ill.

The new chief justice’s ﬁ rst opinion came on

March 6, 2006, when Roberts wrote the unani-

mous decision in Rumsfeld v. Forum for Academic

and Institutional Rights, 547 U.S. 47 (2006). The

opinion required colleges and universities taking

federal funds to allow military recruiters on their

campuses. The decision agreed with a number of

earlier precedents.

The first written dissenting opinion of Chief

Justice Roberts came in the case of Georgia v.

Randolph (March 22, 2006). The majority opin-

ion said that the police may not search a home if

one spouse says that it is permissible and the other

spouse objects. The thrust of Roberts’s disagree-

ment was his view that the decision was not con-

sistent with prior case law.

Observers claim the Roberts Court is more

conservative; however, Roberts joined the liberals

in Jones v. Flowers, a case that seemed to protect

property rights by ensuring adequate due pro-

cess in tax-forfeiture cases. The Roberts Court

moved to allow legislative action that restricts

abortion when the Partial-Birth Abortion Ban

Act was upheld in GONZALES V. CARHART, ATTORNEY

GENERAL (127 S. Ct. 1610 [2007]). It also upheld

school authority over student claims to freedom of

speech (“bong hits for Jesus”) in MORSE V. FREDER-

ICK, 551 U.S. ___ (2007).

Observers of the Court believe there has been

a change in tone in the way oral arguments are

conducted. This may reﬂ ect the Roberts experi-

ence after arguing 39 cases before the Court.

For more information: Hutchinson, Dennis J.,

et al., eds. Supreme Court Review 2006. Chicago:

University of Chicago Press Journals, 2007; Moller,

Mark K., Timothy Lynch, and Robert A. Levy, eds.

Cato Supreme Court Review 2006–2007. Wash-

ington, D.C.: Cato Institute, 2007; Moller, Mark

K., Timothy Lynch, and Robert A. Levy, eds. Cato

Supreme Court Review 2005–2006. Washington,

D.C.: Cato Institute, 2006; Neubauer, David W.

W., and Stephen S. Meinhold. Battle Supreme:

The Conﬁ rmation of Chief Justice John Roberts

and the Future of the Supreme Court. Belmont,

Calif.: Wadsworth Publishing Company, 2005.

—Andrew J. Waskey

Roe v. Wade 410 U.S. 113 (1973)

Roe v. Wade, a landmark U.S. Supreme Court case,

gave women access to abortions based on an

implied right to privacy in the First, Fourth,

Fifth, Ninth, and Fourteenth Amendments

of the U.S. Constitution. The right to privacy

originated in GRISWOLD V. CONNECTICUT, 381 U.S.

479 (1965), and EISENSTADT V. BAIRD, 405 U.S. 438

(1972), which struck down laws making it illegal

Roe v. Wade 627

vi+904_EofUSConsti-v2.indd 627 3/20/09 2:18:28 PM

to use or distribute contraceptives and contra-

ceptive devices. Under Roe, abortion restrictions

were subjected to the strict scrutiny test,

which meant that the abortion right was accorded

the highest level of constitutional protection.

Highly controversial, Roe v. Wade speciﬁ cally

addressed the constitutionality of the 1857 Texas

statute that banned abortion except to save the

mother’s life. The U.S. Supreme Court declared

the Texas law unconstitutional. Building on the

logic in the Griswold and Eisenstadt rulings, the

Court used the privacy zone to protect a woman’s

right to terminate a pregnancy but also recognized

the state’s interest to intervene at some point in

the pregnancy to protect potential human life.

Justice Harry Blackmun, writing for the major-

ity, devised a trimester formula that would bal-

ance the rights of women, physicians, and states

and established guidelines on whose rights would

prevail across the nine months of pregnancy. In

the ﬁ rst trimester (or ﬁ rst three months) of preg-

nancy, the abortion decision is left to the medical

judgment of the woman and her assisting physi-

cian. In the second trimester, the state may regu-

late the abortion procedure in the interest of the

mother’s health. During the third trimester, the

state may regulate or even prohibit abortions to

protect the life of a fetus, thus allowing late-term

abortions only when necessary to protect the life

or health of the mother.

One major challenge to Roe came in Planned

Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992). In Casey, a series of

Pennsylvania abortion restrictions (parental con-

sent, informed consent, a 24-hour waiting period,

and spousal notiﬁ cation prior to obtaining an abor-

tion) were challenged. Although the Court did not

overturn Roe, it abandoned the strict scrutiny

standard and the trimester formula and moved to

the undue burden standard. An “undue bur-

den” consists of placing a substantial obstacle in

the path of a woman who seeks to abort a non-

viable fetus. The Court held that state restrictions

on abortion access that carried an undue burden

would be declared unconstitutional. In Casey,

only the spousal notification requirement was

struck down as unconstitutional under the undue

burden standard. A woman’s right to an abor-

tion still remains intact, but Casey allows states

to enact laws that protect fetal rights and restrict

access to abortions as long as restrictions do not

unduly burden a woman’s abortion rights.

Jane Roe, the plaintiff in this landmark case, is

actually Norma L. McCorvey. Because the case

took three years to get to the Court, McCorvey

never actually obtained an abortion and instead

put her child up for adoption. In 2005, she peti-

tioned the Supreme Court to reopen Roe and

overturn it based on changes in law and technol-

ogy since 1973 and her personal conversion to

Christianity. The Supreme Court did not rule in

McCorvey’s favor but has signaled a willingness to

revisit some of Roe’s basic tenets.

McCorvey’s change of heart personifies the

abortion controversy in American politics. Gener-

ally, Americans believe abortion should be legal

under certain, but not all, circumstances. Presi-

dent George W. Bush and Congress, acting on the

ambivalence of public opinion toward abortion,

have endorsed and passed laws to restrict abor-

tion and protect the unborn. Despite the divisions

caused by the Roe ruling, most Americans oppose

efforts to overturn the decision and return to the

pre-Roe era. Public opinion polls taken since 1989

indicate approximately 60 percent of Americans

wish to maintain the Roe precedent.

Since the 1973 Roe ruling, all nine of the

original Roe justices have died or retired. Many

scholars question whether Roe will remain the

law of the land. Roe leaves behind many unan-

swered questions such as: When does life begin?

At what point during the pregnancy is the fetus

viable? When should the state intervene to make

sure the fetus will be given a chance to develop

and thrive? Before her appointment to the U.S.

Supreme Court, Ruth Bader Ginsburg argued that

Roe stymied the political process that already was

moving in a reformist direction and signiﬁ cantly

prolonged the abortion controversy by making

grounds for consensus less fertile.

Others argue that Roe has become irrelevant.

Congress and states have erected ﬁ nancial barri-

ers (laws barring public funding of abortions) and

legal obstacles (various state restrictions such as

628 Roe v. Wade

vi+904_EofUSConsti-v2.indd 628 3/20/09 2:18:29 PM

waiting periods, parental consent, and mandatory

counseling). In addition, abortion providers are

scarce. Eighty percent of American women live in

counties without abortion providers or must travel

across state lines to obtain an abortion because

many physicians refuse to provide abortions. If

women lack access to abortion, Roe indeed may

be moot. Whether Roe retains any relevance and

whether any of its basic tenets will survive will be

determined by battles in the political arena.

Since Roe was decided, its central holding that

women have a right to terminate their pregnancies

in the ﬁ rst trimester was upheld in Planned Par-

enthood v. Casey, 505 U.S. 833 (1992). However,

in G

ONZALES V. CARHART, 550 U.S. ___ (2007), the

Supreme Court in a 5-4 decision upheld a federal

law banning certain late-term abortions commonly

referred to as “partial birth abortions.” This deci-

sion is the only abortion procedure the Court has

upheld since it issued its Roe opinion.

For more information: Balkin, Jack M. “Roe v.

Wade: An Engine of Controversy.” In What Roe v.

Wade Should Have Said: The Nation’s Top Legal

Experts Rewrite America’s Most Controversial

Decision. New York: New York University Press,

2005; Jones, Jeffrey M. “President Bush and Roe

v. Wade: Public Favors Restrictive View of Abor-

tion Rights, but Not Roe v. Wade Reversal.” Gal-

lup News Service (November 30, 2004); Nossif,

Rosemary. Before Roe: Abortion Policy in the

States. Philadelphia: Temple University Press,

2001; Strickland, Ruth Ann. “Abortion: Pro-

Choice versus Pro-Life.” In Moral Controversies

in American Politics. 3d ed. Armonk, N.Y.: M.E.

Sharpe, 2005.

—Ruth Ann Strickland

Romer v. Evans 116 S.Ct. 1620 (1996)

In Romer v. Evans, in a 6-3 decision, the Supreme

Court upheld a lower court’s ruling against Colo-

rado’s Amendment Two and found that it violated

the federal equal protection clause in clas-

sifying homosexual citizens of Colorado not to

further a legitimate legislative end, but to make

them unequal to other residents of Colorado. This

amendment struck down any law or executive

order in the state that indicated sexual orientation

as a classiﬁ cation to be protected alongside other

common antidiscrimination classiﬁ cations such as

religion and national origin.

The decision in Romer rebuffed the dissent’s

contentions that Amendment Two, a popular refer-

endum, did not reﬂ ect animus toward gay persons,

given that the advertisements used to gain sup-

port for it relied on anti-gay stereotype and bias.

Indeed, the Court found that no reason existed for

support of this law other than bias, an impermis-

sible purpose, and hence it failed the rational

basis test. Romer afﬁ rmed the very basic prin-

ciple of equal citizenship through its use of the

rational basis test, and set a minimum standard

that has to be met when contemplating legislation

against gay persons.

The opinion of the Court, given by Justice

Anthony M. Kennedy, held that the means

employed by Amendment Two—the classiﬁ cation

used—did not ﬁ t the ends, as it was both too nar-

row and too broad in its identiﬁ cation of a group of

persons by a single trait and by denying them pro-

tections across the board. Kennedy’s opinion also

addressed the hot-button issue of “special rights,”

the notion that when gay persons are added to exist-

ing nondiscrimination or other legislation they are

winning for themselves protections unavailable for

the ordinary, non-gay citizen. The rights at issue,

such as access to the public library and emergency

medical treatment, were deemed quite ordinary

and in the realm of what any American rightfully

can expect; in addition, the various provisions of

Colorado state law that protect gay persons were

all duly enacted and so can be assumed to reﬂ ect

popular and legislative will.

Romer was the first significant case for gay

and lesbian rights after the disastrous BOW-

ERS V. HARDWICK (478 U.S. 186 [1986]), and called

into question the earlier case’s holding that the

morality of a majority in a state can by itself legiti-

mate a law, a point of view defended by dissenting

Justice Antonin Gregory Scalia, who argued

that a behavior or practice that is regarded as

against good morals by a citizenry may be legally

proscribed on that basis alone. Scalia couched the

Romer v. Evans 629

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dissent in terms of a broader Kulturkampf that has

affected the nation’s legal establishment, and he

suggested that the decision in Romer would lead

to striking down as constitutionally suspect laws

against polygamy, incest, and cockﬁ ghting. Ear-

lier, the Colorado Supreme Court struck down

Amendment Two, ﬁ nding not only that it forbade

anyone from advocating on behalf of gay rights,

whether or not gay him- or herself, but also that

it required gay rights supporters to meet a higher

bar—only a constitutional amendment could over-

turn it—than needed by anyone advocating on

any other issue. It fenced a politically unpopular

minority out of the political process, but this issue

was not taken up in the Supreme Court.

For more information: Murdoch, Joyce, and

Deb Price. Courting Justice: Gay Men and Les-

bians v. the Supreme Court. New York: Basic

Books, 2001.

—Gordon A. Babst

Rosenberger v. University of Virginia 515

U.S. 819

(1995)

In Rosenberger v. University of Virginia, the

Supreme Court held that the university (UVA)

could not discriminate against a student group’s

freedom of expression in order to avoid violating

the establishment clause of the First Amend-

ment. In a case where a number of elements of

the First Amendment intersected—freedom

of speech, freedom of religion, and reli-

gious establishment—the Court sided with Wide

Awake, a student-run publication of which Rosen-

berger was a member, and its freedom of religious

expression.

Wide Awake was a Christian student publi-

cation that requested monies from the Student

Activities Fund (SAF) at UVA. The SAF exacted

a mandatory $14 fee that each student had to pay

every semester. Qualified student groups could

request monies from the SAF for eligible expendi-

tures related to these groups providing activities,

publications, or other support to the student body

at large. Wide Awake requested monies to pay a

printer for the publication of its magazine, but the

student council, which managed the SAF, denied

the request on the grounds that Wide Awake was

a religious activity; funding of religious activities

was prohibited under the SAF. After the UVA

administration denied a challenge to the Student

Council’s ruling, Wide Awake filed an appeal

in district court. Both the district and appellate

courts denied the appeal, holding in the latter that

UVA, as an agency of the state of Virginia, could

engage in viewpoint discrimination, as the estab-

lishment clause of the First Amendment prohib-

ited it from providing any assistance to a speciﬁ c

religion.

The Supreme Court, in a divided (5-4) deci-

sion, ruled in favor of Wide Awake. In his major-

ity opinion, Justice Anthony M. Kennedy

distinguished between content discrimination

(government discrimination of speech based on

the subject of the speech) versus viewpoint dis-

crimination (government discrimination based on

the views or thoughts of the speaker). The Court

has historically allowed content discrimination

to afford government the opportunity to pre-

serve the purposes of the forum it has created.

However, as seen in the Court’s ruling in LAMB’S

CHAPEL V. CENTER MORICHES UNION FREE SCHOOL

DISTRICT, 508 U.S. 384 (1993), the Court has

been quite skeptical about government exclud-

ing speech based on its message. Applied to the

Rosenberger case facts, Kennedy wrote that UVA

was engaged in viewpoint discrimination, as it

was the Christian nature of Wide Awake’s mes-

sage that led the student group to seek money

from the SAF.

Justice Kennedy was, much like Justice San-

dra Day O’Connor in her concurrence, also

dismissive of UVA’s claim that it had the con-

stitutional duty to discriminate against Wide

Awake’s Christian message because the estab-

lishment clause of the First Amendment does not

allow the government to favor one religion over

others. Here, Kennedy demonstrated how UVA

had taken steps in how it recognized and funded

student organizations to show a clear separation

between it and student groups. As such, UVA

could not be seen to be establishing religion by

funding Wide Awake.

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vi+904_EofUSConsti-v2.indd 630 3/20/09 2:18:29 PM

Justice David H. Souter, writing for the four

dissenters on the Court, did not agree with Ken-

nedy that there was a clear separation between

Wide Awake and UVA. As UVA required each stu-

dent to pay the mandatory activity fee, collected

the monies, and then distributed the monies per

rules it created, one could easily make the claim

that public monies were being spent to fund reli-

gion. For Souter, then, the Court seemed to be

approving for the ﬁ rst time “direct funding of core

religious activities” in violation of the establish-

ment clause of the First Amendment.

In a case context that blurred the lines between

various parts of the First Amendment, the Court

had to weigh which part of the amendment was

more important in Rosenberger. Though empa-

thetic toward the government’s desire to avoid

being seen as violating the establishment clause,

the Court made clear that this desire could not

result in viewpoint discrimination in a forum the

government created.

For more information: O’Brien, David M. Con-

stitutional Law and Politics: Civil Rights and Lib-

erties. 5th ed. New York: W.W. Norton, 2003.

—John M. Aughenbaugh

Rostker v. Goldberg 453 U.S. 57 (1981)

In Rostker v. Goldberg, the United States

Supreme Court rejected a challenge to the law

that required males to register for the military.

The case arose when President Jimmy Carter

reactivated a military draft registration follow-

ing the Russian invasion of Afghanistan in 1979.

Although Carter recommended that Congress

amend the Military Selective Service Act to allow

women to register, Congress authorized funds to

the new registration policy, brought suit against

Bernard Rostker, director of the Selective Ser-

vice System.

The lower court held that the law violated the

due process clause of the Fifth Amendment

and ordered the registration stopped. The court

made it clear that it was expressing no opinion on

the role of women in combat, but was limiting its

ruling to the registration only. The circuit court

stayed the order and the registration proceeded.

In a 6-3 vote, the Supreme Court reversed the

lower court, with Chief Justice William Hubbs

Rehnquist delivering the opinion of the Court.

Noting that the Court’s customary deference to

congressional authority is heightened when con-

sidering a law governing military affairs, the Court

approved the male-only registration scheme.

Rehnquist pointed out that the purpose of the

registration was to prepare for a draft of combat

troops. Acknowledging that the government could

have required both sexes to register, he stressed

the Court’s only task was to determine if the deci-

sion to require only men to register was inconsis-

tent with the equal protection guarantee of

the due process clause of the Fifth Amendment.

He differentiated this situation from others in

which government actions simply reﬂ ect stereo-

typical views of men’s and women’s roles. In enact-

ing this law, Congress clearly indicated that the

registration process was linked to a future draft

of potential combat troops. With women ineligible

for combat by statute and policy, he said, it was

reasonable for Congress to exempt women from

the registration process. Under these circum-

stances, the sexes were not similarly situated, and

Congress could legitimately distinguish between

them. Although the Court recognized that regis-

tration could have been extended to women, since

they might fill a role in noncombat positions, it

nevertheless accepted Congress’s judgment that

noncombat roles would be filled by volunteers,

making registration unnecessary.

The dissenting justices argued that the Court

had not been asked to decide whether women

should be drafted into the military nor what role

they should play in the service. They criticized the

majority for concluding that women need not reg-

ister because they would not be needed in a draft.

They pointed out that if there were a mobilization,

the military would require the service of thousands

of people in noncombat positions, far beyond the

numbers that could be satisﬁ ed by volunteers. Since

women could serve in those roles, it would be sen-

sible to require them to register so that they could

be drafted into those positions as needed.

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