Schultz D. Encyclopedia of the United States Constitution

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For more information: Stiehm, Judith Hicks.

Arms and the Enlisted Woman. Philadelphia:

Temple University Press, 1989.

—Susan Gluck Mezey

Roth v. United States 354 U.S. 476 (1957)

In Roth v. United States, the U.S. Supreme Court

ruled for the ﬁ rst time that speech legally deﬁ ned

as obscene is not protected by the guarantee of

freedom of speech in the First Amendment.

The ruling started the Court on a 15-year

struggle, not to alter the basic principle of Roth,

b u t t o ﬁ n d a w o r k a b l e d e ﬁ n i t i o n o f obscenity.

In numerous subsequent cases, the Court found it

difﬁ cult to decide whether material fell within the

deﬁ nition of obscenity, and the justices tinkered

repeatedly with the deﬁ nition.

In Roth, Justice William J. Brennan, Jr.,

wrote for the majority that material is obscene if

it deals with sex in a manner that appeals to the

“prurient” interest, meaning in a way that fosters

lascivious or lustful thoughts. In the 6-3 ruling,

Brennan stressed that many depictions of sex in

art, science, and literature would not fall within

the obscenity deﬁ nition.

Brennan contrasted the deﬁ nition he adopted

to an historic approach much more restrictive of

freedom of speech. The older standard, from Eng-

lish common law, determined whether something

was obscene based on the effect a particularly

provocative passage might have on an individual

who was susceptible to be affected by it. Brennan

said many U.S. courts had correctly repudiated

this approach from the British ruling in Regina v.

Hicklin, (1868) L.R. 3 Q.B. 360. In its place, Bren-

nan said the correct approach is “whether to the

average person, applying contemporary commu-

nity standards, the dominant theme of the material

taken as a whole appeals to prurient interest.” This

substituted standard focuses on the entire work,

not on an explicit passage, making overall context

relevant. This standard also focuses on an average

person’s reaction using community standards, not

on the actions of a susceptible individual.

The decision upheld two criminal convictions.

Samuel Roth had been convicted of violating fed-

eral law for running a New York business that

mailed obscene circulars and advertising to pro-

mote the sale of books, photographs, and maga-

zines. His conviction was upheld by the U.S. Court

of Appeals for the 2nd Circuit. David Alberts had

been convicted under state law in California for

having obscene material for sale and for creating

an obscene advertisement. His conviction was

afﬁ rmed by a state appeals court. The Supreme

Court decided the two cases together.

The ruling produced three other separate

opinions. Chief Justice Earl Warren agreed with

the convictions but expressed concern that the

principles announced by the Court would cause

problems. Warren wrote, “The line dividing the

salacious or pornographic from literature or sci-

ence is not straight and unwavering.”

Justice John Marshall Harlan agreed with

the conviction of Alberts under California law, but

he said the interests of Congress in a nationwide,

uniform obscenity law were too “attenuated” to

justify the broad scope of federal law used to con-

vict Roth.

Justice William O. Douglas dissented, joined

by Justice Hugo L. Black. Douglas warned that

the Court’s new standard was not workable. He

wrote, “. . . the test that suppresses a cheap tract

today can suppress a literary gem tomorrow.”

For more information: De Grazia, Edward.

Girls Lean Back Everywhere: The Law of

Obscenity and the Assault on Genius. New York:

Random House, 1992; Hixson, Richard F. Pornog-

raphy and the Justices: The Supreme Court and

the Intractable Obscenity Problem. Carbondale:

Southern Illinois University Press, 1996.

—Stephen Wermiel

Rummel v. Estelle 445 U.S. 263 (1980)

In Rummel v. Estelle, a divided Supreme Court

held that the Eighth and Fourteenth Amend-

ments are not violated when a state imposes a

mandatory life sentence for someone convicted of

three nonviolent felonies.

In separate prosecutions over 15 years, Rum-

mel had been convicted of the fraudulent use of a

632 Roth v. United States

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credit card, forging a check, and obtaining money

under false pretenses. The total monetary value of

these crimes was less than $230.00. Under Texas

law, Rummel was considered a habitual offender

and he was sentenced to life in prison. The lower

courts rejected Rummel’s claim that his sentence

was so disproportionate to the crimes that his

punishment was cruel and unusual.

Justice William Hubbs Rehnquist, joined

by Chief Justice Warren Burger and Justices

Stewart, White, and Blackmun, voted to afﬁ rm.

Rehnquist’s majority opinion acknowledged that

proportionality analysis applies to the death pen-

alty because of the unique nature of the punish-

ment, and he recognized that previous decisions

held that the cruel and unusual punishment

clause of the Eighth Amendment “prohibits impo-

sition of a sentence that is grossly disproportionate

to the severity of the crime.” Rehnquist argued,

however, that the length of punishments for recid-

ivists are “matters largely within the discretion of

the punishing jurisdiction,” and that Texas had a

signiﬁ cant interest in dealing “in a harsher man-

ner with those who by repeated criminal acts have

shown that they are simply incapable of conform-

ing to the norms of society.” The Court also noted

that, with good time credits and parole, there was

a possibility that Rummel would not be impris-

oned for the rest of his life.

Justice Lewis Powell’s dissenting opinion,

joined by Justices William J. Brennan, Jr.,

Marshall, and John Paul Stevens, criticized

the majority for suggesting that the proportional-

ity principle may be less applicable to noncapital

sentences, and he argued that such a “limitation

ﬁ nds no support in the history of Eighth Amend-

ment jurisprudence.” He stated that a few basic

principles emerge from that history. Barbarous

forms of punishment are cruel and unusual, and

a sentence may be excessive if it serves no accept-

able social purpose or is grossly disproportionate

to the seriousness of the crime.

Powell identiﬁ ed several objective factors that

courts should consider when assessing the pro-

portionality of a sentence: (1) the nature of the

offense; (2) the sentence imposed for the same

crime in other jurisdictions; and (3) the sentence

imposed upon other criminals in the same juris-

diction. Applying these factors, Powell concluded

that Rummel’s punishment was cruel and unusual.

Rummel was guilty of nonviolent property crimes,

and his sentence was harsher than those given

ﬁ rst-time or second-time offenders convicted of

more serious crimes. Finally, the Texas criminal

justice system assumed that all three-time offend-

ers deserve the same punishment, regardless of

whether they committed three murders or cashed

three fraudulent checks.

The majority opinion in Rummel weakened

the proportionality principle under the Eighth

Amendment by enhancing state authority to

determine punishments for recidivists. The Rum-

mel precedent was used by the Court in E

WING V.

CALIFORNIA, 538 U.S. 11 (2003), to uphold Califor-

nia’s “Three-Strikes” law.

For more information: Fliter, John. Prisoners’

Rights: The Supreme Court and Evolving Stan-

dards of Decency. Westport, Conn.: Greenwood

Press, 2000.

—John Fliter

Rumsfeld v. Padilla 542 U.S. 426 (2004)

In Rumsfeld v. Padilla the Supreme Court refused

to hear a suspected al-Qaeda terrorist’s habeas

corpus petition because it was ﬁ led improperly in

the U.S. District Court for the Southern District

of New York. The petition should have been ﬁ led

in the U.S. District Court for the District of South

Carolina, where the prisoner was being physi-

cally detained. Furthermore, the petition should

have named Padilla’s immediate custodian, Com-

mander Melanie Marr, not Secretary of Defense

Donald Rumsfeld, as the respondent.

Jose Padilla was accused of approaching Abu

Zubaydah, the operational coordinator for al-

Qaeda in Afghanistan, to propose a plan to steal

radioactive material in order to construct and det-

onate a dirty bomb in the United States. Padilla

was arrested at O’Hare International Airport in

Chicago in May 2002. Originally held as a mate-

rial witness, on June 9 President Bush directed the

secretary of defense, Donald Rumsfeld, to detain

Rumsfeld v. Padilla 633

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Padilla as an enemy combatant for conspiracy to

commit warlike acts, including international ter-

rorism. Padilla was placed in military custody at

the U.S. Navy brig in Charleston, South Carolina.

His lawyer ﬁ led a habeas corpus petition two days

later in the U.S. District Court for the Southern

District of New York.

The Supreme Court did not rule on the mer-

its of the case but decided the case by a 5-4 split

on jurisdictional grounds. Chief Justice William

Hubbs Rehnquist, joined by Justices Sandra

Day O’Connor, Antonin Gregory Scalia,

Anthony M. Kennedy, and Clarence Thomas,

stated that the habeas corpus petition was ﬁ led in

the wrong court and that the proper respondent

was not the secretary of defense but rather the indi-

vidual who had direct custody of Padilla. The Court

stated that Congress, in 1867, added the provision

to the habeas statute that petitions could be ﬁ led

only by the person with custody in their respec-

tive jurisdiction. This would avoid the problem of

judges hearing habeas claims from petitioners in

other jurisdictions. As such, Padilla’s lawyers would

have to ﬁ le the petition for habeas corpus again,

naming Marr as respondent in the case.

Justice Kennedy, in a concurrence joined by

Justice O’Connor, noted that while there are

exceptions to the two rules requiring the habeas

corpus action to be brought against the person

who was the immediate custodian of the prisoner

and also in the district court that had territorial

jurisdiction over the custodian, none of the excep-

tions were met in this case.

Justice John Paul Stevens, joined by Justices

Stephen G. Breyer, David H. Souter, and

Ginsburg, dissented, arguing that, special circum-

stances existed that justiﬁ ed the exception of the

immediate-custodian rule and that the Supreme

Court therefore had the jurisdiction to decide the

case because it raised important national ques-

tions. Furthermore, the dissent suggests that the

petition was ﬁ led properly in the Southern Dis-

trict of New York against the secretary of defense

because he was given direct control over Padilla.

Finally, the dissent also notes that at the very least

Padilla should have received a hearing about the

executive’s justiﬁ cation for his detention.

The case was reheard by the district court and

a decision in favor of Padilla was delivered. At the

circuit court level, on September 9, 2005, the 4th

U.S. Circuit Court of Appeals reversed the district

court decision holding that the Bush administra-

tion had the authority to detain Padilla without

pressing charges, as Congress necessarily autho-

rized such detentions with the authorization for

use of military force (AUMF). On November 25,

2005, however, Padilla was charged with three

counts of conspiracy to murder U.S. nationals,

conspiracy to provide material support to terror-

ists, and providing material support to terrorists.

The charges did not include conspiracy to conduct

terrorist acts in the United States. Padilla was

tried in a civilian court in Miami, Florida, after he

pled not guilty to all charges, and in August 2007

was convicted of all charges in a jury trial.

For more information: Leone, Richard, and

Greg Anrig, Jr. War on Our Freedoms: Civil Lib-

erties in an Age of Terrorism. New York: Century

Foundation, 2003; Moeckli, Daniel. “The U.S.

Supreme Court’s ‘Enemy Combatant’ Decisions:

A Major Victory for the Rule of Law.” Journal

of Conflict and Security Law 10, no. 1 (2005):

75–99.

—Amanda DiPaolo

Rust v. Sullivan 500 U.S. 173 (1991)

In Rust v. Sullivan, the U.S. Supreme Court

upheld the federal government’s authority to con-

dition receipt of its funds to private organizations

on those organizations refraining from espous-

ing certain viewpoints. In this case, the Court

upheld a regulation enacted during the Reagan

administration that placed a “gag order” on family

planning organizations, threatening to withdraw

funding from any program that provided abortion-

related services to its clients.

The lawsuit stemmed from Title X of the Pub-

lic Health Service Act, which Congress originally

passed in 1970 to prohibit federal funds from going

to any program that used abortion as a means of

family planning. In 1988, Health and Human Ser-

vices secretary Otis R. Bowen extended this ban

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to any organization that counseled, referred, or

otherwise promoted abortion as a means of family

planning.

Dr. Irving Rust, representing a group of doc-

tors and patients, sued, seeking an injunction

to block these new regulations before they took

effect. Dr. Louis Sullivan, then-secretary under

President George H. W. Bush, was named as the

defendant.

The HHS regulation was challenged under the

First, Fourth and Fifth Amendments and on

the grounds that the secretary had overstepped his

discretion under the statute. However, the main

signiﬁ cance of this case was whether it violated

the free speech rights of health practitioners.

Ordinarily, government is not allowed to sup-

press the viewpoint of private individuals in pub-

lic forums such as parks or streets. Even when

government opens up a “limited” forum for a

stated purpose, it cannot engage in viewpoint dis-

crimination. For example, a town meeting that is

convened to discuss the building of a highway can

restrict the discussion of the meeting to that sub-

ject matter, but it cannot censor speakers because

they either support or oppose the building of the

new highway.

In a 5-4 opinion for the Court, Chief Justice

William Hubbs Rehnquist held that when gov-

ernment subsidizes speech the issue of viewpoint

discrimination does not arise. Government may

not only express its own views, but also promote

those views by granting funds to those organiza-

tions that agree with its perspective, to the exclu-

sion of those who don’t. For example, just because

government promotes democracy and funds those

organizations that espouse that view does not mean

it is required to subsidize those organizations that

promote other political systems. Similarly, govern-

ment is free to promote childbirth as a form of fam-

ily planning and not subsidize those who espouse

abortion. Censorship is not at issue, the Court said,

because family planning organizations are still free

to advise their patients about abortion. They just

have to forgo federal funding if they do.

In dissent, Justice Harry Blackmun claimed

that this was the ﬁ rst time the Court had allowed

government to condition funds upon recipients

having to relinquish a constitutional right. He

stated that the Court’s ruling not only condoned

viewpoint suppression, but also it compelled med-

ical practitioners to espouse antiabortion views

against their will.

Two other dissenting opinions claimed that

the secretary’s regulation did not comport with

Title X, which was enacted to prohibit funding of

abortion procedures themselves, not speech about

abortion. Rehnquist conceded that, though the

statute did not explicitly call for a “gag-order,” it

was within the scope of the statute.

The Court also held that the regulation did not

violate the Fifth Amendment right to abortion.

Failing to subsidize a right, such as abortion, does

not represent a denial of that right.

One of the lawyers arguing for the government

was future chief justice, John G. Roberts, Jr.

For more information: Craig, Barbara Hinkson,

and David O’Brien. Abortion and American Poli-

tics. Chatham, N.J.: Chatham House, 1993; Guit-

tan, Stephanie, and Peter Irons, eds. May It Please

the Court. New York: New Press, 1995.

—Tim Gordinier

Rust v. Sullivan 635

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636

ﱶﱷﱸ

Saenz v. Roe 526 U.S. 489 (1999)

Saenz v. Roe marked only the second time that the

Supreme Court struck down a law as a violation of

the privileges and immunities clause of the

Fourteenth Amendment, enacted in 1868.

The federal welfare reform bill of 1996 autho-

rized states to make lower welfare payments to

first-year residents of the state by paying them

only the lower monthly amount they would have

received in their previous state of residence. Cali-

fornia and about 15 other states instituted such

two-tier systems. The ACLU challenged the Cali-

fornia practice on behalf of two welfare recipi-

ents who had recently moved to California and

received the lower beneﬁ ts.

Writing for a majority of seven, Justice John

Paul Stevens struck down the two-tier sys-

tem, holding that the privileges and immunities

clause of the Fourteenth Amendment protects the

right of citizens to move from state to state and

to achieve equal citizenship, and equal eligibil-

ity for welfare beneﬁ ts, in their new states. Chief

Justice William Hubbs Rehnquist and Justice

Clarence Thomas dissented, viewing the one-

year residency requirement for full beneﬁ ts as an

ordinary, bona fide residency requirement, and

claiming that the majority had misinterpreted the

intent and meaning of the privileges and immuni-

ties clause.

Both liberal and conservative constitutional

theorists welcomed the Supreme Court’s appar-

ent revival of the long-dormant clause, which the

Court had almost read out of the Constitution in

the Slaughterhouse Cases of 1873. Conservatives

had hoped the Court would view the clause as the

source of “natural” economic rights such as free-

dom of contract and property ownership. Liber-

als had hoped the Court would see the clause as

protecting fundamental personal liberties such as

privacy and autonomy. But the Court has made

no further subsequent use of the privileges and

immunities clause as of this writing.

For more information: Pilon, Roger, and Kim-

berly C. Shankman. “Reviving the Privileges or

Immunities Clause to Redress the Balance among

States, Individuals, and the Federal Government.”

Texas Review of Law & Politics 3 (Fall 1998):

1–48; Tribe, Laurence H. “Comment: Saenz sans

Prophecy: Does the Privileges or Immunities

Revival Portend the Future or Reveal the Struc-

ture of the Present?” Harvard Law Review 113

(November 1999): 110–198.

—Michael Comiskey

same-sex marriage

Same-sex marriage refers to a marriage between

two persons who are of the same gender—two

men or two women—who are both presumed to

be homosexual, though modern technology that

effects a change in sex assignment has enlarged

the possibilities regarding who is encompassed in

any marriage. While the highly contentious politi-

cal debate over whether to recognize same-sex

marriage in the law is relatively recent, the phe-

nomenon of two persons, both or one of whom are

not heterosexual, antedates the issue, as it was not

uncommon for a gay man and a lesbian to marry

each other so as to pass as “normal” for family,

work, or other social purposes, especially during

the McCarthy era of the 1950s, when homosexual

persons were sought out and dismissed from gov-

ernment service.

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That legal marriage, then, has been possible for

opposite-sex couples, regardless of the sexual ori-

entation of either person, may indicate the prior-

ity of the form of marriage (requires one man and

one woman) over its substance (expectation of love

and commitment between two lifelong partners,

for example). Hence, the term “same-sex mar-

riage” rather than “gay marriage” is the better one

to refer to what’s at issue today. Discussions over

same-sex marriage have taken place in the nation’s

courts and legislatures, and have involved a vari-

ety of legal terms and concepts, but especially the

equal protection doctrine.

The idea of same-sex marriage received its ﬁ rst

widespread introduction during the court pro-

ceedings surrounding Baehr v. Lewin (852 P.2d

44 [Haw. 1993]), a case within the state of Hawaii

that turned on that state’s equal rights provision

whereby denial of legal marriage to a woman who

wanted to marry her female partner was viewed

as impermissible gender discrimination, given

that, were she a man, she could legally marry her

female partner. This case was followed by Baker v.

Vermont (744 A.2d 864 [Vt. 1999]), which turned

on that state constitution’s robust equality provi-

sions in its “common beneﬁ ts clause,” ultimately

forcing that state’s legislature to craft a regime

of civil unions parallel to marriage and offer-

ing equal state beneﬁ ts. These and other actions

in the states prompted the Congress to pass the

Defense of Marriage Act (DOMA) in 1996, which

was itself followed by a host of similar acts enacted

by state legislatures, via popular referenda, or

through amendments to state constitutions. These

acts clarify that marriage is deﬁ ned as between

one man and one woman for all legal purposes.

The primary instigators of vigorous deﬁ nitions

of marriage to the exclusion of same-sex couples

have tended to be religious conservatives, whose

traditional views of marriage continue to resonate

with a lot of Americans, though not with people in

several other Western countries, or with relevant

professional organizations such as the American

Psychiatric Association, which supports same-sex

marriage on empirical grounds. The nature of the

arguments against same-sex union has been pre-

dominantly sectarian or pseudo-religious, such as

in natural law arguments that purport to prove

that same-sex marriage, like homosexuality itself,

is contrary to nature. The lack of veriﬁ able empiri-

cal bases for the ban on same-sex marriage, and

the support of it through what empirical evidence

there is related to this issue, has led some com-

mentators to suggest that the deeper issue here

really is particular religious preferences ensconced

in American law and politics.

Proponents of same-sex marriage will point to

equality and the nature of marriage as a funda-

mental right or liberty interest established in a long

line of cases, including L

OVING V. VIRGINIA (388 U.S.

1 [1967]) and Zablocki v. Redhail (434 U.S. 374

[1978]), which together state that adults have a con-

stitutional right to marry. Nonetheless, detractors

point out that even today marriage is restricted to

two adult persons, and so will argue that specify-

ing a further restriction as to the different genders

of each person is but to clarify the historical under-

standing and commonplace deﬁ nition of marriage.

Their opponents will counter that legal deﬁ nitions

change over time and are subject to constitutional

ﬁ lters, while historical understandings may reﬂ ect

prejudice, rather than principle.

Hence, the issue has become a battlefield of

various constituencies, each attempting a knock-

down argument or legislative or legal maneuver

to cement popular understanding and to foreclose

any revisiting of the issue. Such moves are always

suspect in the liberal-democratic political regime

with a republican form of government operat-

ing under a written constitution. For example,

DOMA raised the issue of the full faith and credit

clause of the federal constitution, having taken

an issue not mentioned in the U.S. Constitution,

and so historically left to the states, and providing

a rationale not to accept other states’ laws when

they diverge from one another. Ballot initiatives

at the state level, and the still-anticipated move to

amend the federal Constitution, raise the specter

of majoritarianism directed against an unpopular

minority. The religious element in the debates trig-

gers First Amendment concerns even as a few

recognized religious denominations have revised

their understanding of marriage to include same-

sex couples. In addition, the equal citizenship

same-sex marriage 637

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status of individual American citizens who happen

to be gay or lesbian is called into question given

the considerable federal- and state-level economic

and other benefits triggered by legal marriage

from which they are formally excluded.

For more information: Babst, Gordon A. Liberal

Constitutionlism, Marriage, and Sexual Orienta-

tion: A Contemporary Case for Dis-Establish-

ment. New York: Peter Lang, 2002; Gerstmann,

Evan. Same-Sex Marriage and the Constitution.

Cambridge, Mass.: Cambridge University Press,

2004.

—Gordon A. Babst

San Antonio v. Rodriguez 411 U.S. 1 (1973)

In San Antonio v. Rodriguez, the Supreme Court

ruled that there was no federal right to education

and that the classification of individuals based

upon wealth was not suspect.

In this case, a class action lawsuit was brought

on behalf of Demetrio Rodriguez and other

school-aged children throughout the state of Texas

by a Mexican-American family alleging that the

Texas system of financing public education was

unconstitutional. Initially, the federal district

court found the Texas manner of financing and

the scheme used to determine ﬁ nancing allocation

in violation of the equal protection clause cf

the U.S. Constitution. The United States Supreme

Court disagreed.

The decision in the case at the U.S. Supreme

Court level in 1973 ended the attempts by the

public to use the federal court system to equal-

ize the public education system, thereby forcing

the plaintiffs to utilize other social pressures and

more political vehicles to motivate and create

equality within the schools. The basis of the suit

was that the minorities in Texas were in urban

schools funded mostly from local property taxes

and were at a disadvantage due to the demise

of urban community property values. The alle-

gations made in the court proceedings evolved

into a comparative analysis of taxation amounts

in the poorer and more urban areas such as the

Edgewood District, relationally speaking, against

those taxed in the wealthier Alamo Heights Dis-

trict. Thus the facts showed that there was a dis-

parity in the two districts comparatively and that

the amount of ﬁ nancing available to the better

areas was higher. In simpler terms, it was argued

that the lack of a strong economy in these areas

would generate less income to be taxed, and thus

less money would be available for schools, and the

effects of lower pay for teachers would be lesser

quality instructors, fewer resources for children,

and fewer activities to keep the children positively

engaged—also challenging the maintenance of

the schools themselves and potentially creating

dangerous and inadequately maintained environ-

ments for children to learn.

San Antonio v. Rodriguez was the ﬁ rst federal

case to challenge the manner in which schools

were funded and the ﬁ nancing that goes into run-

ning a school. Another issue put to rest in this case

was that the wealth of the denizens of an area was

not to be considered a suspect classiﬁ cation, albeit

relevant; that the Texas school ﬁ nancing laws were

not and should not be considered a racial classi-

ﬁ cation; and that the education available to the

students of the areas was a “fundamental right,”

but that this right had not been violated. So the

rational basis for the ﬁ nancing laws stood and the

funding of schools continues in similar fashion to

this day, although recent attempts at reclassifying

the way in which funds are distributed is under

review in several sections of the country.

Overall, as a result of this decision, litigation of

state educational claims was moved to state courts

to be litigated under state laws and constitutions.

For more information: Kozol, Jonathan. Savage

Inequalities: Children in America’s Schools. New

York: HarperPerennial, 1992.

—Ernest Gomez

Santa Clara County v. Southern Paciﬁ c

Railroad

118 U.S. 394 (1886)

The Supreme Court in Santa Clara County v.

Southern Paciﬁ c Railroad ruled that corporations

have the same rights as individual people do under

the U.S. Constitution.

638 San Antonio v. Rodriguez

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The ruling extended the Fourteenth Amend-

ment’s equal protection clause to corpora-

tions. That clause says that no state shall “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.” The

Fourteenth Amendment was passed to ensure

equal rights for former slaves after the Civil War.

Corporations have successfully used the Santa

Clara case to claim many further rights, includ-

ing freedom of speech in the campaign finance

arena, freedom of privacy in battling corporate

disclosure, and other equal protection claims.

The case itself dealt with the fairly mundane

topic of the proper taxation of fence posts on land

held by the Southern Paciﬁ c Railroad. The Court

upheld a lower court’s ruling that the state had

incorrectly included the value of the fence posts

in its property tax assessment of land owned by

the railroad.

The opinion never actually stated that corpora-

tions deserved the same constitutional protections

as people do. In fact, the opinion explicitly says

that the lower court should have ruled on the tax

issues without reaching the question of corporate

personhood:

[the] court below might have given judgment in

each case for the defendant upon the ground that

the assessment, which was the foundation of the

action, included property of material value which

the state board was without jurisdiction to assess,

and the tax levied upon which cannot, from the

record, be separated from that imposed upon

other property embraced in the same assess-

ment. As the judgment can be sustained upon

this ground, it is not necessary to consider any

other questions raised by the pleadings and the

facts found by the court.

However, prior to oral arguments (or, by some

accounts, prior to the reading of the opinion),

Chief Justice Waithe is reported to have said,

“The Court does not wish to hear argument on

the question whether the provision of the Four-

teenth Amendment to the Constitution, which

forbids a State to deny any person in its jurisdic-

tion the equal protection of the law, applies to cor-

porations. We are all of the opinion that it does”

(Hartmann, p. 104).

The clerk who wrote the headnotes, J. C. Ban-

croft Davis, wrote Waithe prior to publishing

the opinion to confirm if this quote accurately

captured what Waithe said. Waithe replied that

“I think your mem. in the California Rail Road

tax cases expresses with sufﬁ cient accuracy what

was said before the arguments began. I leave it

with you to determine whether anything need be

said about it in the report inasmuch as we avoided

meeting the Constitutional question in the deci-

sion” (Hartmann, p. 112).

Davis then published the headnotes to say,

“The defendant Corporations are persons within

the intent of the clause in section 1 of the Four-

teenth Amendment to the Constitution of the

United States, which forbids a State to deny to any

person within its jurisdiction the equal protection

of the laws” (Hartmann, p. 105).

The Santa Clara ruling capped a decades-long

effort by corporate America to win such protec-

tion. Corporations were not mentioned in the

Constitution and were originally not considered to

be persons. Rather, they were thought of as arti-

ﬁ cial persons—creations of the government and

subject to strict charters outlining their authori-

ties and to strict regulation in ways that individu-

als were not.

Four similar cases where corporations had

asserted Fourteenth Amendment rights (94 U.S.

155, 94 U.S. 164, 94 U.S. 179, and 94 U.S. 180

[1877]) had previously been rebuffed by the

Supreme Court. In these cases, the Court ruled

without ever reaching the question of whether the

corporation was a person.

It was highly unusual for the Court to issue a

ruling with such monumental implications with-

out any explanation for the ruling in the written

opinion. If, indeed, the Court did mean to declare

that corporations did have the rights of persons,

why would Chief Justice Waithe leave it up to the

discretion of a clerk to decide whether or not to

include this in the headnotes?

These odd circumstances have led some

to speculate that railroad interests used long-

Santa Clara County v. Southern Paciﬁ c Railroad 639

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cultivated connections to spin this decision to

their desired effect. J. C. Bancroft Davis, the clerk

who wrote the headnotes, had been president of

the Newburgh and New York Railroad. It is pos-

sible that he was inﬂ uenced in how he wrote the

headnotes by Justice Field, a longtime supporter

of the railroads who wrote a concurring opinion

that the Court should have reached the Four-

teenth Amendment arguments.

For more information: Hartmann, Thom.

Unequal Protection: The Rise of Corporate Domi-

nance and the Theft of Human Rights. Emmaus,

Pa.: Rodale Press, 2002.

—Derek Cressman

Sante Fe Independent School District v. Doe

530 U.S. 290 (2000)

In Sante Fe Independent School District v. Doe,

the Supreme Court decided 6-3 that a school dis-

trict policy allowing student-led prayer at public

high school football games violated the estab-

lishment clause of the First Amendment.

The Supreme Court let stand the ruling of the

U.S. Court of Appeals for the Fifth Circuit. The

case generated a strong dissent from Chief Justice

William Hubbs Rehnquist.

The Sante Fe Independent School District in

Texas had been allowing student-initiated and

student-led prayer before public high school

football games for many years. An elected stu-

dent chaplain was designated to provide the

prayer. However, two students objected to the

prayers and, through their mothers, ﬁ led suit in

federal court to have the practice abandoned by

the school district. The school district refined

its procedures for allowing the prayer while the

litigation moved forward by holding two separate

student elections related to the issue. The ﬁ rst

election allowed the students to choose whether

or not to pray before a football game. When the

results of this election showed that the majority

of students wanted there to be prayer, a second

election was held to pick a student representative

to deliver the prayer. This prompted the district

court to use the U.S. Court of Appeals for the

Fifth Circuit precedent in Jones v. Clear Creek

Independent School District (1992) and issue an

order stating that the prayers were constitutional

as long as they were nonsectarian and nonpros-

elytizing. Both sides to the case appealed to the

U.S. Court of Appeals for the Fifth Circuit. In

its ruling, the court upheld its decision in Jones,

but did so by ruling that its decision applied spe-

ciﬁ cally to graduation ceremonies in Jones and

not high school football games. Therefore, the

decision disallowed prayer at high school football

games as instituted by the Santa Fe Independent

School District.

The Supreme Court took the case on appeal.

Writing for the majority, Associate Justice John

Paul Stevens said, “The delivery of such a mes-

sage—over the school’s public address system, by

a speaker representing the student body, under

the supervision of school faculty, and pursuant

to a school policy that explicitly and implicitly

encourages public prayer—is not properly char-

acterized as ‘private’ speech.” The majority was

unconvinced that the student speech was private

in nature, given the school district’s control over

the process and the content of the speech being

delivered by the student. Stevens also pointed out

toward the end of the decision that “nothing in

the Constitution as interpreted by this Court pro-

hibits any public school student from voluntarily

praying at any time before, during, or after the

schoolday.”

In a stinging dissent, Chief Justice William

Hubbs Rehnquist wrote that the majority opin-

ion “bristles with hostility to all things religious

in public life.” Rehnquist continued, “Neither the

holding nor the tone of the opinion is faithful to

the meaning of the Establishment Clause, when

it is recalled that George Washington himself, at

the request of the very Congress which passed

the Bill of Rights, proclaimed a day of ‘pub-

lic thanksgiving and prayer, to be observed by

acknowledging with grateful hearts the many and

signal favors of Almighty God.’ ”

The gist of this decision is that prayer before a

public high school football game, as the school dis-

trict had set it up, was deemed to be an endorse-

ment of religion by the government.

640 Sante Fe Independent School District v. Doe

vi+904_EofUSConsti-v2.indd 640 3/20/09 2:18:33 PM

For more information: Choper, Jesse H., Rich-

ard H. Fallon, Jr., Yale Kamisar, and Steven H.

Shiffrin. Constitutional Law: Cases & Comments.

10th ed. St. Paul, Minn.: West Group, 2006; Han-

kins, Barry. “Is the Supreme Court Hostile to

Religion?: Good News Club et al. v. Milford Cen-

tral School (2001) and Santa Fe v. Doe (2000).”

Journal of Church and State 43, no. 4 (Autumn

2001): 681–687.

—Jane Rainey and William Lester

Scales v. United States 367 U.S. 203 (1961)

In a 5-4 decision, Justice John Harlan upheld

against four dissents (Hugo Black, William J.

Brennan, Jr., William O. Douglas, and Earl

Warren) the conviction of Junius Irving Scales

for his membership in the North Carolina Com-

munist Party under the membership section of

the Smith Act.

Between 1951 and 1957 there were 145 indict-

ments leading to 108 convictions as a result of

Dennis v. U.S., 391 U.S. 494 (1951), which upheld

arrests for membership in the Communist Party.

The Supreme Court contrasted its Dennis deci-

sion in Yates v. U.S., 354 U.S. 298 (1957), result-

ing in numerous communists being released from

jail or never being tried. However, for those in

jail already (like Scales), the case did not mean

freedom. Scales’s 1955 decision was dismissed on

appeal in 1957, but then he was again recharged

and found guilty in a 1958 trial, which was upheld

again by the court of appeals. The case reached

the Supreme Court in 1961.

Justice Harlan reasoned that Section 4f of the

Internal Security Act did not repeal the member-

ship section of the Smith Act (18 U.S.C. §2385) if

the person actively participated in the organiza-

tion. Scales was not denied his Fifth Amendment

due process rights because he belonged to an

organization that was engaged in criminal advo-

cacy. Nor were his First Amendment rights

of political expression violated, since witnesses

showed he had made statements favoring criminal

advocacy. According to the Supreme Court: “We

can discern no reason why membership, when it

constitutes a purposeful form of complicity in a

group engaging in this same forbidden advocacy,

should receive any greater degree of protection

from the guarantees of that Amendment” (p. 229).

Reviewing the evidence standard found in the

Yates case, Harlan found that there was sufﬁ cient

evidence to show through two witnesses’ accounts

that Scales had gone beyond mere membership

and had advocated criminal actions.

In the dissents, Justice Black claimed that

the First Amendment forbade trying anyone for

belonging to a political organization or association:

“He has therefore been deprived of his right to be

tried under a clearly deﬁ ned, pre-existing ‘law of

the land’ as guaranteed by the Due Process Clause

and I think his conviction should be reversed on

that ground” (p. 260–261). Douglas strongly

objected to imprisonment of Scales because of

guilt by association only and with no speciﬁ c crimi-

nal acts charged against him. Brennan, with War-

ren and Douglas joining, found Section 4f of the

Internal Security Act legislated immunity from the

membership clause of the Smith Act.

In conclusion, the Scales case was offset by Jus-

tice Harlan’s opinion in Noto v. U.S., 392 U.S. 290

(1961), on the same day, which reversed the lower

court on the basis that evidence did not reflect

membership and set down guidelines for future

membership cases that could not be sustained.

These cases marked the end of Smith Act prosecu-

tions in the courts. On December 25, 1962, Presi-

dent Kennedy commuted Scales’s imprisonment.

For more information: Caute, David. The Great

Fear: The Anti-Communist Purge under Truman

and Eisenhower. New York: Simon & Schuster,

1978; Belknap, Michael R. Cold War Political

Justice: The Smith Act, the Communist Party,

and American Civil Liberties. Westport, Conn.:

Greenwood Press, 1977; Frickey, Philip. “Getting

from Joe to Gene (McCarthy): The Avoidance

Canon, Legal Process Theory, and Narrowing Stat-

utory Interpretation in the Early Warren Court.”

California Law Review 93 (2005): 397–464; Rohr,

Marc. “Communists and the First Amendment:

The Shaping of Freedom of Advocacy in the Cold

War.” San Diego Law Review 28 (1991): 1–106.

—Joel Fishman and Dan Krejci

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