CONSTITUTIONAL LAW
Professor Goldman April 28, 1993
Final Examination Three hours

INSTRUCTIONS

There are 4 problems in this examination. The value of
each, on a scale of 100, is indicated at the beginning of the
problem. Answer all problems, all parts, and all questions.

Please answer what has been asked. If a question is ambigu-
ous, resolve the ambiguity, state your resolution, and answer the
question on that basis.

Good luck.

Problem I-40%

The Kentucky criminal code makes it the crime of incest to
knowingly have sexual intercourse with a stepparent or stepchild,
an ancestor, descendant, brother or sister and without regard to
whether the relationship is genetic or by adoption, by "whole or
half blood", and without regard to the legitimacy of the rela-
tionship. The Kentucky law regulating marriage provides that
marriage is not allowed if the couple has a closer genetic
(blood) relationship than second cousins. Marriages in violation
of this standard are a misdemeanor and are declared void. It
should be noted that under the above laws, it is not a crime for
first cousins to have sexual intercourse but it is a crime for
them to marry and stay married and the marriage is declared void.
On the other hand, it is a crime to have sexual intercourse with
a brother or sister who is related by adoption but such couples
are legally permitted to marry.

Rubab Chasta, an American citizen, lived all of his adult
life in Kentucky. In 1970, at age 25, he married for the first
time. His marriage was arranged by his family in accordance with
the customs and belief of their faith--a branch of the Hindu
religion. His wife, Firsta, was his first cousin. Both came
from a priestly clan and marriage within the clan, preferably to
a first cousin, was necessary for Rubab or his sons to qualify to
perform priestly duties. When they had no children after ten
years, Firsta, in accordance with their religious custom, ban-
ished Rubab from her bed. This freed him to remarry. Although
they had a civil as well as a religious wedding, they did not get
a civil divorce. Six weeks later, in a religious and a civil
wedding, Rubab married Segunda, his parents' 18 year old daughter
by adoption. Segunda was 4 years old when adopted by Rubab's
parents. By then he was away at college. In accordance with the
custom of their sect, though adopted, Segunda retained the family
name of her birth parents. She also was from the priestly clan
and such marriages were acceptable under the religious customs of

their sect. Five years later, without producing any children
from the marriage, Rubab, over Segunda's objections, obtained a
religious divorce and married Sally Ann Smith, a 19 year old of
no particular religious background and of unidentified ancestry.
Two weeks later Rubab died of a heart attack. His estate is
worth about $1.7 million. He left no will.

The Kentucky probate court, affirmed by the Court of Ap-
peals, declared the previous marriages void as a matter of law
and awarded the spouse's share of the estate to Sally Ann. The
Kentucky Supreme Court has granted the appeals of Segunda and
Firsta, both of whom assert that the probate decision violates
their rights under the Kentucky and U.S. constitutions and that
they should get the spouse's intestate inheritance.

What constitutional arguments should each of the attorneys
(Firsta's, Segunda's, and Sally Ann's) make?

Problem II-20%

Indioho is a state in the United States of America. Section
32-555 of the Indioho criminal code makes it a felony, punishable
by not less than one and not more than two years of imprisonment,
"for a person to provoke physical abuse, physical harassment,
economic discrimination, or breach of privacy directed at another
person. If the intrusion in violation of this law is because of
the victim's race, religion or sexual orientation, then the
penalty shall be doubled."

Rhoda Tiller, representative to the state assembly from the
second district, has announced that she is opposed to legislation
that belittles women as inferior beings by attempting to give
them extra privileges or by belittling their role as bearers of
children. A group, Liberation of Women, has been picketing
Tiller's home carrying signs saying "Rhoda Tiller demeans women
and belongs in the dirt." The pickets trail her as she travels
by car to give talks, shop, visit friends, and attend church.
Friends she has visited have received notes reading "We know who
you are, where you are, and who your friends are. Help us stop
Rhoda Tiller."

On November 15, 1992, Lotta Words, the President of Libera-
tion of Women, speaking at a rally, urged those present to join
in the effort to encourage Rhoda's resignation from the state
assembly. In her speech, Lotta stated: "Let's show her that we
know that the only thing a Rhoda Tiller is good for is churning
manure." About an hour later, as Tiller left her office, a
bucket of fresh horse manure was tossed on her. The person who
threw it was arrested and charged with assault. He told a news
reporter: "It was a heaven sent inspiration. As Ms. Words gave
her speech, I noticed a horse from the mounted patrol policing

the rally produce the very substance that was needed to anoint
our Rhoda Tiller." Ms. Words has been charged with violating
section 32-555 of the Indioho criminal code. You are her attor-
ney. Explain the federal constitutional arguments you will make
on her behalf and your prospects of succeeding with these consti-
tutional defenses.

Problem III-20-

Les Tarr, age 32, has taught the fifth grade in the Virtue
County school system ever since he received his teaching certifi-
cate nine years ago. This past Fall, while teaching Social
Studies, he asked all of his students to pretend that they were
gay, that they had adopted children, and that the children had
come home from school saying that a classmate said they were
dirty because their parents are gay. Tarr then told the students
to write a five page essay explaining how they, as gay parents,
would reassure their children that being gay is natural and that
there is nothing wrong with a child raised in a gay household,
and how they would instruct the children as to how to respond to
the tormentor.

The chairperson of the school board, on learning of this
assignment, summoned Tarr to his office together with the princi-
pal. He berated Tarr for the inappropriateness and insensitivity
of the essay assignment (unknown to Tarr, but known to some of
the children, there was such an adopted child in his class), his
improper effort to brainwash impressionable children through the
assignment, and his demonstrated total lack of judgment and
propriety. He then instructed Tarr to resign instantly and
stated that if Tarr did so and promised to make no effort to ever
again seek employment as a grade or high school teacher, no
charges would be brought against him and, in consideration of his
otherwise good record, he would be provided by the principal with
a decent letter of recommendation for work in any field except
teaching. The chairperson warned, however, that if Tarr did not
resign or tried to resume teaching, the chairperson would see to
it that his record would show that he was dismissed for indecent
conduct and attempting to corrupt the morals of young children.
The principal concurred in the proposal and urged Tarr to accept.
Tarr asked for and received one week to consider the proposal.
(During this week he is on paid suspension.) As a result of the
principal telling the other teachers generally what had tran-
spired, within a couple of days word spread in the community that
Tarr will be resigning because he is gay (he is not) and because
he tried to indoctrinate his children that being gay is a posi-
tive experience.

Tarr seeks your counsel. He would like to keep his job if
it is feasible and sue to regain his good reputation if there is
a reasonable prospect of success. The school system has no
published regulations for dismissal standards or procedures.
Explain the advice will you give him regarding his legal options.

Problem IV

ANSWER THE FOLLOWING FOUR PART8 IN YOUR BLUEBOOK USING A MAXIMUM
OF A PAGE FOR THE ANSWER TO EACH PART.

Part A
Cruzan v. Director, Missouri Department of Health involved a
petition on behalf of a patient in a persistent vegetative state
to gain court approval for the hospital to remove her artificial
nutrition and hydration. The state court, among other things,
concluded that the evidence of Cruzan's own desire to terminate
medical treatment was unreliable and that such life support must
be continued unless the patient had duly executed a declaration
of intent through a document complying with the Missouri Living
Will statute or there is clear and convincing, inherently reli-
able evidence of the patient's choice. What was the majority
decision of the U.S. Supreme Court and its reasoning?

Part B
Osborne v. Ohio involved the conviction and six month sentence of
a man where, as a result of a valid search, police found four
photos in his home depicting "a nude male adolescent posed in a
sexually explicit position." He was convicted under a state law
prohibiting knowing possession of material showing a lewd exhibi-
tion or graphic focus on a minor's genitals where the minor is
not the child or ward of the possessor and the material is not
possessed for a "bona fide artistic, medical, scientific, educa-
tional, religious, governmental, judicial or other proper pur-
pose." What was the majority decision of the U.S. Supreme Court
and its reasoning?

Part C
Metro Broadcasting, Inc. v. F.C.C. involved the challenge to
policies of the Federal Communications Commission that favor
minority applicants for new broadcasting licenses and allow pur-
chase only by minority controlled companies of a license that has
been designated for revocation or a license whose renewal has
been challenged and is scheduled for hearing. What was the
majority decision of the U.S. Supreme Court and its reasoning?

Part D
Flagg Brothers, Inc. v. Brooks involved a claim that constitu-
tional rights were violated when, pursuant to the UCC provision
allowing a warehouse to sell stored goods to recover unpaid
storage fees, a warehouse notified Brooks that her furniture
would be sold even though her consent to storage had been ex-
tracted by the sheriff in an eviction proceeding in which she was
faced with the choice of storage or having the furniture remain
on the street. What was the majority decision of the U.S. Su-
preme Court and its reasoning?