Illinois Constitutional Law & Civil Rights

Guide to
Illinois Law

Illinois Constitutional Law & Civil Rights

Constitutional Law & Civil Rights

Constitutional Law & Civil Rights

The Role of Constitutions

Constitutions are important documents in this country's system of government. The United States Constitution establishes the three branches of the federal government: Congress (the legislative branch), the courts including the Supreme Court (the judicial branch), and the President (the executive branch). It also defines the powers that each of these branches have and the limitations placed on those powers.

The Illinois Constitution plays a similar role in state government. The federal Constitution is the supreme law of the land, and the Illinois Constitution must provide at least as much protection for civil rights as the federal Constitution. Accordingly, this chapter focuses primarily on the law of the federal Constitution.

Constitutional law is very broad and very complex. It includes the actual text of the federal or state constitution, including amendments, and a huge number of cases which attempt to interpret the words of the constitution. In constitutional law, more than in any other area of law, there has been a great deal of interpretation of the original documents. Often, reading the constitution itself is only the very beginning of understanding the law of the constitution on a particular subject. In constitutional law, it is essential to become acquainted with the way courts interpret the documents' provisions. Because constitutions are such important documents, and because the courts play such a key role in understanding what the documents say, the nomination of justices to sit on the federal and states' supreme courts is an important issue. People care about constitutions and who interprets them because they know that constitutions matter.

Despite the importance of constitutional law in our legal system, many of the thorniest issues in constitutional law are of limited interest to the average consumer. Some areas of law that are affected by constitutional analysis are discussed in separate chapters in this Guide:the Employment Law , Elder Law , Criminal Law , and Arts, Entertainment, & Media Law Chapters. Of great interest to everyone, however, is the constitutional law of civil rights. Thus, this chapter focuses primarily on the civil rights guaranteed by the federal Constitution, and the limitations that government can place on those rights.

Civil Rights

Civil rights include, but are not limited to, the right to practice a religion freely, the right to be free from discrimination, the right to privacy, the right to travel freely, the right to free speech, the right to assemble peacefully, and the right to express opinions against the government. Most of the civil rights United States citizens enjoy today first were granted more than 200 years ago when the original 13 states ratified the Constitution's first ten amendments, known as the Bill of Rights. Consequently, much of what we call civil rights law is constitutional law. In a some areas, civil rights are based on statutes rather than the Constitution.

One of the most important concepts in constitutional law is that the rights granted in the Constitution are not absolute. Many rights have limits placed upon them. The rights granted in the Constitution must be exercised responsibly or else they conflict with other rights. Most constitutional law is about defining the limits of powers granted in the Constitution or balancing the rights of individuals whose rights are in conflict.

Equal Protections

The Fourteenth Amendment to the United States Constitution says that no state government can deny any person within its jurisdiction the equal protection of the law. There is no identical provision applicable to the federal government. However, the Fifth Amendment guarantees that the federal government shall not deprive a person of life, liberty, or property without due process of law. Courts have understood the Fifth Amendment to require the federal government to give equal protection. Equal protection, in its simplest definition, means that laws are supposed to protect people equally. For obvious reasons, however, laws cannot always treat people equally. Government programs to benefit the poor, for example, obviously treat the poor differently from the wealthy, just as programs to benefit children treat children differently than adults, or they have no effect. The government often needs to classify people in order for laws to be effective.

Standards of Scrutiny

Equal protection analysis by courts focuses on whether the classifications the government makes are so unfair as to violate the Constitution. In reviewing a classification, a court applies one of three different standards to a law or governmental action. Each of these standards asks what the goal of a law is and how well the government has chosen a method to reach that goal.

Rational Basis

Rational basis scrutiny is the lowest level of scrutiny the court can apply. Applying this test, the courts decide a government classification is acceptable so long as it is rationally related to a legitimate government interest. The government interest need not be a particularly good one, so long as it is a goal that the government may legitimately pursue. The classification chosen need not be an especially effective way of reaching that goal, so long as there is a rational connection between the classification and its goal. Laws that classify people on the basis of economics typically are scrutinized by courts using rational basis. For example, if a state offers public assistance to people whose income is below the poverty line, but not to people with higher incomes, the law will be subject to this analysis. Because this standard is so low, courts applying this standard almost never overturn the government's classification.

Intermediate Scrutiny

Intermediate scrutiny is used infrequently by courts. Courts applying this standard overturn a government classification unless it is substantially related to an important government interest. Here, the government's interest must be more than merely legitimate as required by the rational basis test, and the classification chosen must be more carefully tailored to meet that goal.

Strict Scrutiny

Strict scrutiny is the highest standard a court can apply in deciding whether a government classification violates a person's right to equal protection. To withstand strict scrutiny, a challenged classification must be necessary to a compelling government interest. Here, the means chosen must be so carefully tailored that the action is absolutely necessary and no less restrictive means exist. Also, the government's interest must be compelling, not just optional or important. Courts applying this standard rarely uphold the challenged classification.

Classifications

Given these three very different standards, the most important question in most equal protection cases is which of these standards the court applies in reviewing a classification. Plaintiffs alleging that a classification violates equal protection almost always lose if the court applies a rational basis test and they almost always win if the court applies strict scrutiny. The standard that applies is determined by the kind of classification the court reviews. Most challenged classifications receive rational basis scrutiny. The following classifications receive special treatment.

Suspect Classifications

Suspect classifications are subject to strict scrutiny. A classification is called suspect because it is likely to be based on illegal discrimination. The clearest example of a suspect classification is race. History shows that most laws that use race as a way to classify people are based on racial discrimination and have no legitimate purpose. Racial classifications are automatically suspect, so courts apply the highest level of scrutiny and almost always strike down racial classifications. There is no fixed list of which classifications are suspect, but the Supreme Court typically treats as suspect any classification of people who:

Have a trait that cannot be changed
Have a trait that is highly visible
Historically have been disadvantaged
Historically have lacked effective political representation

Racial and ethnic classifications are the two suspect classifications most often given strict scrutiny. For example, suppose the state of Illinois creates a law that says African-Americans have to pay more for drivers' licenses than non-African-Americans. The state might claim it passed the law simply to raise more money, but a court reviewing the law under strict scrutiny would strike it down because the classification is not necessary to a compelling purpose. The need for more money might be a compelling interest, but a racial classification is not necessary to raise those revenues. The state has other ways it can raise revenues, perhaps by increasing the cost of drivers' licenses for everyone.

Suppose, instead, the state passes a law that says people over age 40 have to pay more for driver's licenses than people under age 40. Age is not a suspect classification, so a court reviewing the law would not apply strict scrutiny. A court applying a lower standard would likely find the law constitutional because it is rationally related to the legitimate government interest in raising more revenues.

Classifications That Infringe Upon Fundamental Rights

When a government classification limits these so-called fundamental rights, a court will review the classification using strict scrutiny. Fundamental interests include most voting rights, marriage, and procreation. For example, suppose a state decides to reduce the amount of money spent on public education by refusing to enroll children in families with more than two children. A court reviewing this law would strike it down. Limiting public spending might be a compelling government interest but discouraging people from having children is not necessary to achieve that goal. There are other ways to limit spending that do not infringe upon the fundamental right to procreate.

Semi-Suspect Classifications

Courts apply intermediate scrutiny to a limited number of classifications. Gender classifications, classifications that distinguish between legitimate and illegitimate children, and racial classifications intended to benefit a disadvantaged racial group are examples of semi-suspect classifications. For example, suppose a state decides to create an affirmative action program for Asian-American firefighters because it had discriminated against Asian-American firefighters in the past. A court reviewing this classification likely would apply intermediate scrutiny and ask whether the program is substantially related to the important government interest in remedying its past discrimination. The court's decision would turn on how well the state tailored the program to meet this goal and whether it implemented its provisions fairly.

Due Process

The Fourteenth Amendment to the United States Constitution says that no state shall deprive a person of life, liberty, or property without due process of law. As mentioned earlier, the Fifth Amendment has similar wording, but it applies to the federal government. The right to due process is actually two separate guarantees: procedural due process and substantive due process.

Procedural Due Process

Procedural due process is the guarantee that the government will not deprive a person of life, liberty, or property without first giving the person some amount of legal process. Legal process means some kind of legal notice or opportunity for a hearing. Courts use a two-step balancing analysis to decide procedural due process claims. First, they ask whether there is a property or liberty interest at stake. The government is not required to give due process unless a person has a liberty or property interest at stake. If a court finds that there is a liberty or property interest at stake, it then asks what process the individual deserves, weighing the private interest, the public interest, and the risk of error from the method chosen by the government. The following examples can illustrate this analysis.

Example 1: A person applies for a job with the federal government and is turned down with no opportunity for appeal. The applicant claims she was denied procedural due process. The court determines that the applicant was not denied procedural due process because she had no liberty or property interest in the job yet. Merely hoping for a job does not equal having a property interest in it, so no procedural process is due from the government.
Example 2: A person working for a state agency is fired after receiving repeated warnings about inadequate job performance and being given opportunities to improve. He claims a denial of procedural due process. Here the court rules that the employee has a legally protected interest in keeping his job. The court asks whether the employee received adequate process. It weighs the public interest in the state having competent employees, the employee's interest in keeping his job, and the risk that if the employee is not given the right amount of legal process, his termination may be unfair. States are aware of their obligation to provide procedural due process, so they establish detailed procedures for employee evaluations. If the person actually received warnings and reviews were fairly done, the court is likely to find there was no denial of procedural due process.
Example 3: A person receiving food stamps suddenly is denied benefits without any right to appeal. The person claims a denial of procedural due process. The court rules that the recipient has a legitimate property interest in continuing to receive assistance and that the risk of unfair termination was high because the recipient received no legal process at all. It decides the person's procedural due process rights were denied.

Substantive Due Process

Substantive due process is the right to be free from arbitrary or unreasonable government actions. Modern Supreme Court decisions have used substantive due process analysis to decide challenges to government restrictions on personal rights.

Privacy

There is no right to privacy mentioned specifically in the Constitution, nor do the words "privacy," "abortion," and "contraception" appear in the text of the Constitution. However, some court decisions have understood other explicit guarantees, such as freedom of association and freedom from unreasonable searches, to mean people have the right of privacy. The right of privacy includes a right to abortion and contraception. Decisions affecting the right of privacy are almost always controversial and recent cases have cast doubt on how future courts will analyze substantive due process challenges to these rights, but the following general points stand out.

Laws that forbid exercise of a fundamental right always are struck down as a violation of substantive due process. For example, a law making all abortions illegal would be struck down.
Laws that make it more difficult to exercise a right without making it impossible usually are upheld. For example, a government putting a tax on contraceptives may make it more difficult for some people to exercise the right to contraception, but such a tax still is permissible.
Minors have fewer protections of their fundamental rights than do adults. For example, it is permissible to limit the sale of contraceptives to minors, and a minor can be required to receive parental permission before having an abortion.

Sexual Orientation

Courts do not interpret the right of privacy to include all forms of sexual activity and personal autonomy. For example, the Supreme Court upheld one state's law criminalizing homosexual activity. Thus, the right of privacy is not broad enough to protect homosexual activity. This is an area in which some state laws provide greater protection for a person's civil rights than the federal Constitution provides.

Refusing Medical Treatment

Courts have decided that the right to refuse medical treatment for oneself is a fundamental right. For example, many states, including Illinois, have passed legislation governing living wills, which limit the amount of medical treatment a person will receive if he or she becomes terminally ill. Living wills are discussed in the Elder Law Chapter. Refusing medical treatment is discussed further in this chapter under free exercise of religion.

Military

People serving in the military have less protection of their civil rights. Courts use more lenient standards when reviewing actions taken by the United States military, because the law says that the military should be given broad deference in order to function. Thus, many actions that would be unconstitutional if taken by private parties or a civilian branch of government are not unconstitutional when taken by the military. This explains why the military is allowed to exclude women from many combat positions. The military also can seize and hold military personnel without extending many of the civil rights protections offered to suspects arrested by state police. Because the courts are reluctant to overturn military decisions, civil rights advocates sometimes to turn to the president, who is Commander-in-Chief of the military, to change military policy.

State Action

The Fourteenth and Fifteenth Amendments to the Constitution limit what states can do. These amendments do not reach the actions of private parties. Thus, in order to strike down an action under these amendments, a plaintiff must show that the action is state action. Some examples of state action are clear. When the state, its counties, municipalities, or state-operated institutions act, those actions are clearly state action. Other examples are less clear. Sometimes actions by private institutions that receive public funds are considered state action.

Freedom of Speech

The First Amendment to the United States Constitution guarantees the right to free speech. Like other rights already discussed, the right to free speech is not absolute but must be measured against other rights. Following are some examples of how the right of free speech may be limited.

Obscenity

Obscenity is not a protected form of free speech. This means that people do not have complete freedom of speech when it comes to obscene materials. The reason obscenity is such a controversial area of constitutional law is that people disagree on where the line is between obscene and non-obscene communications. Courts consider a communication obscene if it meets a three-part test:

Prurient interest: Would a person, applying contemporary community standards and taking the work as a whole, find that the work appeals to the prurient interest in sex?
Patently offensive: Is sexual conduct depicted in a way that is patently offensive?
Lack of serious value: Does the work lack serious value?

The definition permits different decisions in different parts of the country or state and at different times, because it uses contemporary community standards to judge communications. An item might be obscene in Joliet but acceptable in Chicago. An item considered obscene a decade ago might be legally protected speech today.

Private possession of obscene material is not punishable, because it is protected by the right of privacy. States cannot punish possession, although they are free to punish the distribution or display of obscene material.

Zoning

States can regulate where bookstores, movie theaters, and places of live entertainment can operate. Here the right of free speech conflicts with the state interest in orderly planning, so the two interests must be accommodated.

Child Pornography

The Supreme Court recognizes that the government has an important interest in protecting children from sexual exploitation. Therefore, any depictions that use actual children in a sexually explicit manner can be prohibited, even though this puts a limit on free speech. Depictions that use older actors pretending to be children or that use idealized drawings are protected speech.

Commercial Speech

Commercial speech is speech that advertises a product or service for profit or for a business purpose. Commercial speech is entitled to much less protection than non-commercial speech. Specifically, misleading commercial speech or commercial speech which proposes unlawful actions has no protection under the law.

Freedom of Religion

Many people have the mistaken belief that the federal Constitution requires a wall of separation between church and state, and are surprised to learn that the Constitution does not mandate a complete separation between church and state. Clergy persons can hold public office, religious colleges can receive public grants, and the government can require a church to install smoke detectors or other safety equipment.

The Constitution guarantees religious freedom, and this guarantee has two branches. The federal government is forbidden to establish a state church and individuals are guaranteed the right to exercise their religion freely. Like the other rights discussed in this chapter, these rights are not absolute.

Establishment Clause

The Establishment Clause forbids the establishment of a state church. Cases arising in this area frequently involve whether the state can give aid to a religiously affiliated institution, such as a Christian grade school or a Jewish hospital. Courts usually ask three questions when hearing challenges to government support of religiously affiliated institutions:

Does the aid have a secular purpose?
Does the aid have a primarily secular effect?
Does the aid require excessive government entanglement in the affairs of the religious body?

Using this test, courts have upheld programs that have only an incidental benefit to religious schools, such as free busing, but have struck down programs that directly benefit the schools, such as paying the salaries of parochial school teachers.

Free Exercise

Courts deciding whether there has been an infringement of the right to freely exercise one's religion use a three-part balancing test that considers:

Weight of the government interest
Degree of interference
Availability of alternate means to achieve the goal