Fall 2003 Constitutional Law Exam
YALE LAW SCHOOLFall Term 2003 ExaminationConstitutional LawJanuary, 2004(Self-Scheduled– Twenty Four Hours)Professor BalkinInstructions1. 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):
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
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