Tuesday, December 13, 2022

Constitutional Law Exam 2022: Even the Federalism Question Invokes the Culture War

 by Michael C. Dorf

A couple of weeks ago I described the challenge I faced writing a constitutional law exam in light of the recent (claimed) turn to history by the SCOTUS. I don't know whether I rose to the challenge, but I did write an exam. And while I grade my students' answers, you, dear reader, can try your hand at it.

Note: Q1 is based on a case currently in the New York courts. Assume Myrontana is a state of the U.S.

Question 1 (35 percent)

Since 1866, the state of Myrontana has forbidden the carrying of firearms in houses of worship. As relevant here, the current version of the prohibition states:

(A) Subject to the exceptions provided in part (B), whoever knowingly enters a sensitive place while carrying a firearm shall be guilty of a felony punishable by a fine of up to $5,000 and imprisonment for up to five years. The following locations are sensitive places within the meaning of this law: (1) a government building; (2) a courthouse; (3) a jail or prison; (4) a place of worship, unless the governing body or authority of the place of worship permits the carrying of firearms by persons who are licensed firearms carriers; (5) a state mental health facility that admits individuals on an involuntary basis for treatment of mental illness, developmental disability, or addictive disease; (6) a nuclear power facility; (7) a daycare center, kindergarten, elementary school, middle school, or high school; and (8) a 150-foot radius of any polling place when elections are being conducted and such polling place is being used as a polling place.

(B) The prohibition of provision (A) shall not apply to federal, state, or local law enforcement officers while on active assignment or in response to a call for aid.

Myrontana is a “shall issue” jurisdiction in which law-abiding adult citizens may freely obtain a license to carry a concealed firearm outside of sensitive places. Further, decisions of the Myrontana Supreme Court establish that retail businesses that are generally open to the public may not exclude licensed firearms carriers on the ground that they are armed.

Lauren Nixon is a 28-year-old resident of Hughes City in Myrontana and a recent convert to the Quaker faith. She was the victim of a near-deadly attack when she was a teenager. Nixon is currently studying jiujitsu with the intention of going about unarmed when she receives her black belt, but in the meantime she feels safest when carrying a handgun in her purse. She has a license to carry it lawfully and wishes to carry it when she attends worship services at the Friends Meeting House in Hughes City. Nixon understands that most Quakers deem the carrying of firearms inconsistent with their commitment to peace, but she reads scripture to permit the use of deadly force when strictly necessary in self-defense or justified defense of others. Consistent with general Quaker practice, the congregation has no formal pastor, but it does have a Ministry & Oversight committee. Nixon asked the committee to permit the carrying of firearms, but her proposal was voted down.

Following recent shootings in a mosque and a synagogue, the Hughes City District Attorney announced a “zero tolerance policy for violent religious bigotry. Anyone who brings a firearm to a house of worship will be prosecuted to the full extent of the law.”

You are a junior associate at the Hughes City law firm of Baker, Bridgers, and Dakus, where Nixon is a new client. After meeting with Nixon, the partner supervising your work asks for a memorandum evaluating the likelihood of success if Nixon sues the District Attorney in federal district court seeking injunctive and/or declaratory relief enabling her to attend services at the Friends Meeting House in Hughes City while carrying her licensed handgun in her purse. The partner asks you to evaluate the case based on the assumption that Nixon raises claims under the Religion Clauses of the First Amendment and the Second Amendment, as incorporated via the Fourteenth Amendment.

Write the analysis and conclusion portions of a memo to the partner. In so doing, it may be helpful for you to know that no states forbade firearms in houses of worship in 1791 but that between 1870 and 1890 four states (Georgia, Missouri, Texas, and Virginia) enacted restrictions on firearms in places of worship, and similar laws were on the books in the then-territories of Arizona and Oklahoma.

Question 2 (30 percent)

Eighteen-year-old Tanya McIntyre was assigned female at birth and identifies as a woman. She is in her first year as a student at Myrontana State University (MSU), the state’s flagship campus. In high school, McIntyre set the girls division state record for throwing the shot put. She has begun training with the MSU track and field team but was recently informed by her coach that, pursuant to a new policy, she will not be permitted to compete in intercollegiate athletics unless she takes drugs to lower her testosterone levels below 5 nmol/L, which is very high for a cisgender woman but just below the threshold where testosterone is generally regarded as conferring a substantial competitive advantage. McIntyre has hyperandrogenism, which causes her naturally occurring levels of testosterone to be substantially higher than in the vast majority of cisgender women. Although hyperandrogenism sometimes causes symptoms, McIntyre has no medical reason to take testosterone-lowering drugs and does not wish to do so. She does wish to compete in intercollegiate track and field.

The governing body for intercollegiate athletics in the United States, the NCAA, permits transgender women to compete in women’s sports only after completing one year of testosterone suppression treatment. MSU follows that rule. Although international sports institutions impose some limits on cisgender female athletes with naturally occurring unusually high testosterone levels (as made famous by the case of South African runner Caster Semenya), the NCAA does not. Nonetheless, the MSU policy imposes its 5 nmol/L testosterone cap on all participants in women’s intercollegiate athletics. The MSU Board of Regents adopted the policy shortly after the chair of the Myrontana Senate Committee on Education threatened to cut funding to MSU “unless those wack-a-doodle pointy-heads realize there’s a difference between men and women.” The MSU Gazette—the student newspaper—editorialized at the time that by adopting the 5 nmol/L testosterone cap, the Board had “succumbed to transphobic legislative terrorism.”

McIntyre wishes to contest the application of the policy to her on the ground that it violates Title IX and denies her equal protection of the laws in violation of the Fourteenth Amendment. She has spoken with her coach and the Title IX Coordinator at MSU, who were both sympathetic but unable to alter university policy. She next comes to Baker, Bridgers, and Dakus, where you continue to work. As your next assignment, your supervisor asks you to assess the merits of McIntyre’s potential equal protection claim. (A different associate will address the Title IX claim.) Write the analysis and conclusion portions of a memo that does so.

Question 3 (35 percent)

For purposes of this question, assume it is 2025. Ron DeSantis is President. Republicans have a majority in the House of Representatives and hold 60 seats in the Senate. Congress has passed and the President has signed the Freedom From Racist Thought Act (FFRTA), which is modeled in part on Florida’s Individual Freedom Act (formerly the “Stop W.O.K.E Act”).

As relevant here, FFRTA provides:

No person 18 years or older may use any materials (including but not limited to computers, telephones, recording devices, or means of transportation) that have moved in or affect interstate or foreign commerce in order to teach, instruct, or communicate to a minor that any person, by virtue of his or her race, color, national origin, or sex bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin, or sex, except that such teaching, instruction, or communication shall be permissible if the person so teaching, instructing, or communicating receives the specific written consent of at least one parent or guardian of the minor in advance of the teaching, instructing, or communicating. Each such minor to whom a teaching, instruction, or communication in violation of this provision occurs shall constitute a separate violation, and each violation shall be punishable by a tax of $50, to be paid to the Internal Revenue Service within 30 days of the end of the quarter in which the violation occurs.

The findings section of FFRTA invokes, as authority for the law, “the Commerce power, the Taxing power, the power to enforce the Fourteenth Amendment, the Treaty power, and the Necessary and Proper Clause.” It goes on to state that the Treaty power authorizes FFRTA because it implements Article 20.2 of the International Covenant on Civil and Political Rights, which the U.S. signed in 1977 and ratified in 1992. Article 20.2 states: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

Shortly after FFRTA is enacted, Deirdre Dennis, a Cornell Law School professor, is interviewed by Steven Hazelwood, a 17-year-old high school junior writing for High School SCOTUS. A transcript of the interview appears on the High School SCOTUS website (described in its header as “Teenagers Writing About the Supreme Court”). During the course of the interview, Professor Dennis says: “I believe that the Court’s decisions a couple of years ago in the Harvard and UNC cases were wrong. The Court should have upheld race-based affirmative action as consistent with the original meaning of the Fourteenth Amendment. But I want to be clear that I was never persuaded by the diversity rationale articulated by Justice Powell in the Bakke case and adopted by a majority in the Grutter case. I think that remedying current effects of past discrimination provides a better justification.” The transcript first appears on the High School SCOTUS website on March 28, 2025.

In August 2025, Professor Dennis receives a notice of deficiency from the IRS. It states:

In the first quarter of this year, you violated FFRTA by advocating to the minors who read High School SCOTUS your view that colleges and universities should engage in illegal race-based discrimination because of past actions committed by others. That advocacy constituted at least one violation of FFRTA (the interviewer being a minor) and likely thousands more, as High School SCOTUS has thousands of followers (most of them high school students) on social media. There is no indication that you received consent from the interviewer’s parent(s), much less from the parents of the publication’s minor readers. You have not, however, paid any of the resulting tax that is due. Failure to pay the tax within 20 days of this notice may result in additional penalties and even felony tax evasion prosecution pursuant to 26 U.S.C. § 7201.

If prosecuted or otherwise subject to any tax liability, Professor Dennis intends to argue that FFRTA violates the First Amendment, but she is worried that her argument might fail if the view expressed by Justice Thomas in his dissent in Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011), is endorsed by an increasingly originalist majority of the Supreme Court. In that case, Justice Thomas voted to reject the First Amendment claim on the ground that “the practices and beliefs of the founding generation establish that ‘the freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.”

Accordingly, Professor Dennis would also like to argue that Congress lacked the affirmative power to enact FFRTA. Evaluate the strength of that argument. Be sure to discuss each of the affirmative powers FFRTA invokes. To be clear, except insofar as it may affect your analysis of Congress’s affirmative power, do not discuss whether FFRTA violates the First Amendment.

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