Constitutional Law-- 2003 Final Exam Professor Balkin

1. This examination consists of two essay questions. Each has equal weight in determining your grade. Your answers to the two questions combined should total no more than 6,000 words.

2. Please read each question carefully and pay attention to what you are being asked to do.

3. If anything about a question is ambiguous, decide what you think is meant, tell me what you think is meant, and answer the question accordingly. No reasonable resolution of an ambiguity will be penalized. If you need to assume additional facts in order to answer a question, state what those facts are and how they affect your answer.

4. You may either type your exam (which I prefer) or use blue books. If the latter, please use a separate blue book for each question. Mark the number of the question on the front of the blue book. If you need more than one blue book for a question, that is fine, but indicate on each blue book which question it answers and in what order it is to be read. Write on only one side of the page. Skip every other line. The easier your answer is to read, the more appeal it will have when it is viewed at 2:00 in the morning.

5. Think before you write. Organize your answer. You get extra points for clarity and succinctness. You get penalized for an answer which is disorganized and confusing.

6. This exam is open book. Because other students will be taking this exam at different times, please do not speak to any other students about the contents of the exam until the examination period is over.

Following heated debate, Congressional leaders have produced a compromise bill to assuage both sides in the continuing struggle over gay rights. The Bill, entitled the Federal Act to Reconcile Rights of Conjugality and Employment (FARRCE) has three sections:

Section 1 of the bill amends Title VII of the 1964 Civil Rights Act to include sexual orientation, along with race, color, sex, and national origin, as a forbidden ground of employment discrimination. The current draft of the Judiciary Committee's report to the bill notes that it is Congress's intent that the existing law of employment discrimination-- including the Griggs doctrine, which allows for disparate impact liability-- will apply to lawsuits for sexual orientation discrimination. In addition, state and local governments will also be liable for violations of sexual orientation discrimination under the 1972 Amendments to Title VII.

Section 2 of the bill makes it a federal crime to commit "crimes of violence" which are "motivated by discriminatory animus based on race, color, sex, national origin, or sexual orientation." The bill defines "crimes of violence"– which include murder, assault, arson, kidnaping, sexual assault, and destruction of real and personal property-- in terms of federal laws that currently apply to acts committed in federal prisons, on the high seas, or in federal territories where the federal government has sole jurisdiction. Under the new bill, if these "crimes of violence" are committed with the requisite animus, they would be federal crimes whether or not committed in the "prison, maritime or territorial jurisdiction of the United States."

Section 3 contains a prohibition on same sex-marriage, civil unions, and similar arrangements. It reads: "Prohibition on same-sex marriage. Congress declares that marriage is the solemn union of one woman and one man. No state shall extend a marriage license, or any other legal arrangement which is substantially similar in its benefits and incidents to marriage, to any couple other than one consisting of one man and one woman. All existing marriage licenses, and substantially similar arrangements created by state law, which are contrary to this section, are hereby declared void and of no legal effect."

You are an attorney working for the Senate Judiciary Committee. Give your advice on the constitutional issues that the bill raises, and whether the bill can survive a constitutional challenge in its current form. What steps should Congress take to increase the chances that the bill would survive such a challenge?

Consider this passage from Justice Marshall's dissent in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 98-99, 109-110 (1973):

I must once more voice my disagreement with the Court's rigidified approach to equal protection analysis. The Court apparently seeks to establish today that equal protection cases fall into one of two neat categories which dictate the appropriate standard of review - strict scrutiny or mere rationality. But this Court's decisions in the field of equal protection defy such easy categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the Equal Protection Clause. This spectrum clearly comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending, I believe, on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn. I find in fact that many of the Court's recent decisions embody the very sort of reasoned approach to equal protection analysis for which I previously argued - that is, an approach in which "concentration [is] placed upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification." Dandridge v. Williams, supra, at 520-521 (dissenting opinion).

I therefore cannot accept the majority's labored efforts to demonstrate that fundamental interests, which call for strict scrutiny of the challenged classification, encompass only established rights which we are somehow bound to recognize from the text of the Constitution itself. ... [I]t will not do to suggest that the "answer" to whether an interest is fundamental for purposes of equal protection analysis is always determined by whether that interest "is a right . . . explicitly or implicitly guaranteed by the Constitution," . . .

In summary, it seems to me inescapably clear that this Court has consistently adjusted the care with which it will review state discrimination in light of the constitutional significance of the interests affected and the invidiousness of the particular classification. In the context of economic interests, we find that discriminatory state action is almost always sustained, for such interests are generally far removed from constitutional guarantees. Moreover, "[t]he extremes to which the Court has gone in dreaming up rational bases for state regulation in that area may in many instances be ascribed to a healthy revulsion from the Court's earlier excesses in using the Constitution to protect interests that have more than enough power to protect themselves in the legislative halls." But the situation differs markedly when discrimination against important individual interests with constitutional implications and against particularly disadvantaged or powerless classes is involved. The majority suggests, however, that a variable standard of review would give this Court the appearance of a "superlegislature." I cannot agree. Such an approach seems to me a part of the guarantees of our Constitution and of the historic experiences with oppression of and discrimination against discrete, powerless minorities which underlie that document. In truth, the Court itself will be open to the criticism raised by the majority so long as it continues on its present course of effectively selecting in private which cases will be afforded special consideration without acknowledging the true basis of its action. [The Court's] [o]pinions . . . seem drawn more as efforts to shield rather than to reveal the true basis of the Court's decisions. Such obfuscated action may be appropriate to a political body such as a legislature, but it is not appropriate to this Court. Open debate of the bases for the Court's action is essential to the rationality and consistency of our decisionmaking process. Only in this way can we avoid the label of legislature and ensure the integrity of the judicial process.

Consider these remarks in light of recent constitutional law decisions that you have studied in this course. Does Marshall accurately describe the Court's evolving practices in reviewing legislation under the equal protection and due process clauses, and, in particular, its evolving use of various tiers of scrutiny? Do you agree with Marshall that this is how the Court should interpret these clauses? Marshall argues that because his approach is more honest it makes it easier to reconcile judicial review with democratic self-government. He bases his account on a particular understanding of the roles of courts and legislatures. Do you find his arguments convincing?

YALE LAW SCHOOL

Fall Term 2003 Examination

Constitutional Law

January, 2004

(Self-Scheduled-- Twenty Four Hours)

Professor Balkin

Instructions



		Back to Syllabi Online YALE LAW SCHOOL Fall Term 2003 Examination Constitutional Law January, 2004 (Self-Scheduled-- Twenty Four Hours) Professor Balkin Instructions 1. This examination consists of two essay questions. Each has equal weight in determining your grade. Your answers to the two questions combined should total no more than 6,000 words. 2. Please read each question carefully and pay attention to what you are being asked to do. 3. If anything about a question is ambiguous, decide what you think is meant, tell me what you think is meant, and answer the question accordingly. No reasonable resolution of an ambiguity will be penalized. If you need to assume additional facts in order to answer a question, state what those facts are and how they affect your answer. 4. You may either type your exam (which I prefer) or use blue books. If the latter, please use a separate blue book for each question. Mark the number of the question on the front of the blue book. If you need more than one blue book for a question, that is fine, but indicate on each blue book which question it answers and in what order it is to be read. Write on only one side of the page. Skip every other line. The easier your answer is to read, the more appeal it will have when it is viewed at 2:00 in the morning. 5. Think before you write. Organize your answer. You get extra points for clarity and succinctness. You get penalized for an answer which is disorganized and confusing. 6. This exam is open book. Because other students will be taking this exam at different times, please do not speak to any other students about the contents of the exam until the examination period is over. 7. Good luck. Question One (One Half) Following heated debate, Congressional leaders have produced a compromise bill to assuage both sides in the continuing struggle over gay rights. The Bill, entitled the Federal Act to Reconcile Rights of Conjugality and Employment (FARRCE) has three sections: Section 1 of the bill amends Title VII of the 1964 Civil Rights Act to include sexual orientation, along with race, color, sex, and national origin, as a forbidden ground of employment discrimination. The current draft of the Judiciary Committee's report to the bill notes that it is Congress's intent that the existing law of employment discrimination-- including the Griggs doctrine, which allows for disparate impact liability-- will apply to lawsuits for sexual orientation discrimination. In addition, state and local governments will also be liable for violations of sexual orientation discrimination under the 1972 Amendments to Title VII. Section 2 of the bill makes it a federal crime to commit "crimes of violence" which are "motivated by discriminatory animus based on race, color, sex, national origin, or sexual orientation." The bill defines "crimes of violence"– which include murder, assault, arson, kidnaping, sexual assault, and destruction of real and personal property-- in terms of federal laws that currently apply to acts committed in federal prisons, on the high seas, or in federal territories where the federal government has sole jurisdiction. Under the new bill, if these "crimes of violence" are committed with the requisite animus, they would be federal crimes whether or not committed in the "prison, maritime or territorial jurisdiction of the United States." Section 3 contains a prohibition on same sex-marriage, civil unions, and similar arrangements. It reads: "Prohibition on same-sex marriage. Congress declares that marriage is the solemn union of one woman and one man. No state shall extend a marriage license, or any other legal arrangement which is substantially similar in its benefits and incidents to marriage, to any couple other than one consisting of one man and one woman. All existing marriage licenses, and substantially similar arrangements created by state law, which are contrary to this section, are hereby declared void and of no legal effect." You are an attorney working for the Senate Judiciary Committee. Give your advice on the constitutional issues that the bill raises, and whether the bill can survive a constitutional challenge in its current form. What steps should Congress take to increase the chances that the bill would survive such a challenge? Question Two (One Half) Consider this passage from Justice Marshall's dissent in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 98-99, 109-110 (1973): I must once more voice my disagreement with the Court's rigidified approach to equal protection analysis. The Court apparently seeks to establish today that equal protection cases fall into one of two neat categories which dictate the appropriate standard of review - strict scrutiny or mere rationality. But this Court's decisions in the field of equal protection defy such easy categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the Equal Protection Clause. This spectrum clearly comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending, I believe, on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn. I find in fact that many of the Court's recent decisions embody the very sort of reasoned approach to equal protection analysis for which I previously argued - that is, an approach in which "concentration [is] placed upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification." Dandridge v. Williams, supra, at 520-521 (dissenting opinion). I therefore cannot accept the majority's labored efforts to demonstrate that fundamental interests, which call for strict scrutiny of the challenged classification, encompass only established rights which we are somehow bound to recognize from the text of the Constitution itself. ... [I]t will not do to suggest that the "answer" to whether an interest is fundamental for purposes of equal protection analysis is always determined by whether that interest "is a right . . . explicitly or implicitly guaranteed by the Constitution," . . . In summary, it seems to me inescapably clear that this Court has consistently adjusted the care with which it will review state discrimination in light of the constitutional significance of the interests affected and the invidiousness of the particular classification. In the context of economic interests, we find that discriminatory state action is almost always sustained, for such interests are generally far removed from constitutional guarantees. Moreover, "[t]he extremes to which the Court has gone in dreaming up rational bases for state regulation in that area may in many instances be ascribed to a healthy revulsion from the Court's earlier excesses in using the Constitution to protect interests that have more than enough power to protect themselves in the legislative halls." But the situation differs markedly when discrimination against important individual interests with constitutional implications and against particularly disadvantaged or powerless classes is involved. The majority suggests, however, that a variable standard of review would give this Court the appearance of a "superlegislature." I cannot agree. Such an approach seems to me a part of the guarantees of our Constitution and of the historic experiences with oppression of and discrimination against discrete, powerless minorities which underlie that document. In truth, the Court itself will be open to the criticism raised by the majority so long as it continues on its present course of effectively selecting in private which cases will be afforded special consideration without acknowledging the true basis of its action. [The Court's] [o]pinions . . . seem drawn more as efforts to shield rather than to reveal the true basis of the Court's decisions. Such obfuscated action may be appropriate to a political body such as a legislature, but it is not appropriate to this Court. Open debate of the bases for the Court's action is essential to the rationality and consistency of our decisionmaking process. Only in this way can we avoid the label of legislature and ensure the integrity of the judicial process. Consider these remarks in light of recent constitutional law decisions that you have studied in this course. Does Marshall accurately describe the Court's evolving practices in reviewing legislation under the equal protection and due process clauses, and, in particular, its evolving use of various tiers of scrutiny? Do you agree with Marshall that this is how the Court should interpret these clauses? Marshall argues that because his approach is more honest it makes it easier to reconcile judicial review with democratic self-government. He bases his account on a particular understanding of the roles of courts and legislatures. Do you find his arguments convincing? END OF EXAMINATION Back to Syllabi Online