Today in Supreme Court History: July 1, 1985

7/1/1985: Cleburne v. Cleburne Living Center, Inc. is decided.

Comments

[Dan Schiavetta]

Cleburne v. Cleburne Living Center, 473 U.S. 432 (decided July 1, 1985): Equal Protection violated by refusing to grant permit to build group home for intellectually disabled (rational basis review; this holding was more or less codified by 1988 Fair Housing Act amendment that added people with mental disabilities to list of protected persons)

Brnovich v. Democratic National Committee, 594 U.S. --- (decided July 1, 2021): Voting Rights Act not violated by new laws barring ballot collection and out-of-precinct voting; neither had racially discriminatory purpose; Alito’s opinion upholds district court finding that there was no disparate impact; no evidence of any “fraud” or “intimidation” these restrictions were meant to combat and Alito assumes such a showing is unnecessary

Planned Parenthood v. Danforth, 428 U.S. 52 (decided July 1, 1976): struck down Missouri statute requiring either parental or spousal consent for abortion

Bellotti v. Baird, 428 U.S. 132 (decided July 1, 1976): certifies to Massachusetts’s highest court the question of whether Massachusetts statute requiring parental consent for abortion conflicted with state law holding that some minors are capable of giving informed consent (the state court held that it did not, and the statute was struck down in Bellotti v. Baird, 1979, not on Equal Protection grounds but because it burdened the right to an abortion)

Americans for Prosperity Foundation v. Bonta, 594 U.S. --- (decided July 1, 2021): striking down on Free Association grounds California law requiring charities to send to Attorney General IRS forms listing donor information; purpose was to prevent abuse of not-for-profit laws but in fact did not help in those efforts

Allen v. Illinois, 478 U.S. 364 (decided July 1, 1986): proceedings under which person is declared “sexually dangerous” (resulting in warnings to community etc.) are not “criminal" so there is no Fifth Amendment privilege; 5 - 4 decision (sounds wrong to me! -- one can certainly take the Fifth in a civil lawsuit)

CBS v. FCC, 453 U.S. 367 (decided July 1, 1981): any candidate for federal office who makes it onto the ballot must be given chance to buy broadcast time (suit was brought by Carter-Mondale campaign which had been denied access)

Mississippi University for Women v. Hogan, 458 U.S. 718 (decided July 1, 1982): state school (here, a nursing school) can’t have single-sex admission policy

United States v. Winstar Corp., 518 U.S. 839 (decided July 1, 1996): statute dealing with savings and loan crisis changed valuation terms for failed banks to the detriment of successor banks who had agreed to take over and therefore federal government breached its contract with them

School District of Grand Rapids v. Ball, 473 U.S. 373 (decided July 1, 1985): Establishment Clause violated by program putting public school teachers in religious schools to teach secular topics (overruled by Agostini v. Felton, 1997)

[ReaderY]

Regarding Mississippi University for Women v. Hogan, why in the world does the Constitution require marriage equality, yet prohibit education equality? Why in the world is opposition to same-sex marriage considered irrational animosity, but opposition to same-sex education not only somehow isn’t, but is somehow considered part of the Constitution itself?

Is it just a simple matter that the Constitution always hates the Supreme Court’s political enemies of the moment but loves its current political friends? Is it just as simple as, if we put a broccoli farmer on the Supreme Court, we can expect that not only will the promotion of broccoli start being seen as part of the very purpose of the Constitution, but the Constitution itself will start prohibiting competitor vegetables as evil weeds that it will become part of the duty of civilized government to eradicate and any tolerance of which will be subjected to strict scrutiny?

[David Nieporent]

why in the world does the Constitution require marriage equality, yet prohibit education equality? Why in the world is opposition to same-sex marriage considered irrational animosity, but opposition to same-sex education not only somehow isn’t, but is somehow considered part of the Constitution itself

Sometimes you seem more autistic than even Brett.

What on earth does "prohibit education equality" even mean here? The Constitution doesn't "prohibit" education equality; it requires it.

[ReaderY]

Mississippi University for Women v. Hogan held that the Constitution prohibits states from even accommodating people who prefer or need same-sex education. Only heterosexual education is permissable. This obviously makes same-sex education totally unequal to heterosexual education.

If marriage equality means the state must accommodate and support people who want or need same-sex marriage, it seems pretty obvious that education equality has to mean that the state must accommodate and support people who want or need same-sex education. What else could it mean?

[F.D. Wolf]

I have a male friend with a graduate degree in psychology from Texas Women's University. Though officially co-ed since 1972, the school is still 90% women. I never asked him what the dating scene was like. He's a family therapist now. I wonder if he hangs his degree in his office, and if anyone finds it curious, especially in this era of gender uncertainties.

[Dan Schiavetta]

When I was with the baseball team in college (1976) we played against a college which had only begun to admit male students two years before. Probably half of them were on the team. And we lost! As our coach put it, "We lost to a bunch of drama majors!!"

[JoeFromtheBronx]

I have read accounts of Cleburne & it is one of those cases with a lot of complexities, including how the Court ultimately decided the question. It is also one of a collection of cases where animus provides a specific reason to strike down a law or policy.

Grand Rapids was one of a collection of school cases where the Court went into the weeds of line drawing. If someone wants to have their eyes glaze over, you can try to plow through them.

Danforth handled a collection of abortion regulations. It is one case that shows that Roe did not mean the end of all abortion regulations. Baird (the same Baird in the contraceptives case) was a 4-4-1 case. The issue of minors and abortions is a troubled one.

See, e.g., Girls on the Stand: How Courts Fail Pregnant Minors by Helen Silverstein.

[Dan Schiavetta]

Thanks -- as always, your comments are welcome, lapidary, incisive.

[SMP0328]

Planned Parenthood v. Danforth, 428 U.S. 52 (decided July 1, 1976): struck down Missouri statute requiring either parental or spousal consent for abortion

Is this still good law following Dobbs, especially the part about spousal consent?

[Dan Schiavetta]

From the decision in Danforth: "the State cannot delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy." Id. at 69.

Now that the state can prohibit abortions, even during the first trimester, one needs some other argument to prevent the state from requiring spousal consent.

[SMP0328]

Effectively, this is a hollow decision. The holding is still binding on lower courts, but the reasoning has been repudiated by SCOTUS.

[JoeFromtheBronx]

Spousal consent might be problematic on other grounds.

[ReaderY]

Why? The state today requires spousal consent to initiate a pregnancy, despite the fact that it was never required as part of our nation’s history and tradition. Many states didn’t require spousal consent to initiate a pregnancy until well into the 2nd half of the 20th century. What, after Dobbs, with its focus on history and tradition, makes terminating a pregnancy different?

[JoeFromtheBronx]

Rahimi shows the Supreme Court is not inclined to go all the way with "history and tradition." Or, will find an out.

I doubt it will find that immunity from spousal rape prosecution is protected. There are likely practical limits even if consistency would require it.