Appellate Brief (FINAL) - Alejandro Tamez

No. 01-76322 IN THE SUPREME COURT OF THE UNITED STATES THE STATE OF OLYMPUS Petitioner - Appellant v. MINDY VO Respondent - Appellee On Appeal from the Olympus 13 th Circuit Court of Appeals BRIEF FOR APPELLES Attorney for Appellees Alejandro Tamez Texas Bar No. 000000000 Rodriguez & Hernandez, LLP 901 Oak Street Arlington, Texas 76010 Tel: (469) 274-4319 Fax: (469) 274-4320 axt7848@mavs.uta.edu Request for Oral Argument: Appellee, Mindy Vo, request that this court grant oral argument in this case. This appeal raises a critical First and Ninth Amendment issue relating to a constitutional guarantee of the right to privacy that includes a right to use contraception, as well as freely practicing religion in tandem with contraception use. 1

TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iv STATEMENT OF JURISDICTION .............................................................................................. 1 STATEMENT OF THE ISSUES ................................................................................................... 2 STATEMENT OF THE CASE ...................................................................................................... 3 STATEMENT OF THE FACTS .................................................................................................... 4 SUMMARY OF THE ARGUMENTS .......................................................................................... 5 ARGUMENTS AND AUTHOIRITES ......................................................................................... 6 I. THE RESPONDENT WAS NOT AFFORDED A FUNDAMENTAL RIGHT TO PRIVACY WHICH INCLUDES A RIGHT TO CONTRACEPTIVES ..................... 7 A. There is a constitutional basis for a right to privacy, as backed by Griswold, Eisenstadt and Glucksberg .................................................................................... 8 B. The penumbras embedded in Griswold and Eisenstadt work to affirm the Respondent’s case ................................................................................................. 9 C. The Ninth Amendment is substantial support in the long-standing tradition of access to contraceptives in America ..................................................................... 10 D. The Due Process clause of the Fourteenth Amendment ensures that the Respondent’s access to contraceptives is not impeded by government law without due process ........................................................................................................... 11 II. THE RESPONDENT IS PROTECTED UNDER THE FIRST AMENDMENT TO FREELY PRACTICE RELIGION ............................................................................. 13 A. The REAP WHAT YOU SOW ACT (RWYSA) burdens the Respondent’s religious exercise .................................................................................................. 14 B. The case of Employment Division, Department of Human Resources of Oregon v. Smith is relevant to RWYSA ................................................................................ 16 C. The framework of Smith v. Employment Division does not justify RWPSA ........ 18 CONCLUSION AND PRAYER ................................................................................................... 20 2

TABLE OF AUTHORITIES U.S. SUPREME COURT COURT CASES Reynolds v. United States , 98 U.S. 145 (1878) ................................................................................. Sherbert v. Verner , 374 U.S. 398 (1963) ........................................................................................... Wisconsin v. Yoder , 406 U.S. 205 (1972) .......................................................................................... Employment Division v. Smith , 494 U.S. 872 (1990) ........................................................................ Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520 (1993) ............................ Fulton v. City of Philadelphia, 593 U.S. ___, 141 S. Ct. 1868 (2021) ............................................. Tandon v. Newsom, 593 U.S. ____, 141 S. Ct. 1294 (2021) ............................................................ Kennedy v. Bremerton School District , 597 U.S. ___, 142 S. Ct. 2407 (2022) ................................ Carson v. Makin, 596 U.S. ___, 142 S. Ct. 1987 (2022) ................................................................... Griswold v. Connecticut , 381 U.S. 479 (1965) ................................................................................. Eisenstadt v. Baird , 405 U.S. 438 (1972) ......................................................................................... Washington v. Glucksberg , 521 U.S. 702 (1997) .............................................................................. Lawrence v. Texas , 539 U.S. 55 (2003) ............................................................................................ Obergefell v. Hodges , 576 U.S. 644 (2015) ..................................................................................... Dobbs v Jackson Health Organization , 597 U.S. ___, 142 S. Ct. 2228 (2022) ............................... 4

U.S. COURT OF APPEAL CASES United States v. One Package, 86 F. 2d 737 (2d Cir. 1936) ............................................................. U.S. DISTRICT COURT CASES Roberson v Rochester Folding Box Co ., ( New York Court of Appeals) 171 N.Y. 538 (1902) ....... Deanda v. Becerra , No. 2:20-CV-092-Z, slip op. (N.D. Tex. Dec. 8, 2022) ................................... LEGAL JOURNAL ARTICLE Brandeis and Warren, The Right to Privacy, 4 H ARVARD L. R EV . 193 (Dec. 15, 1890) ............... 5

SUMMARY OF ARGUMENT The respondent was not afforded a fundamental right to privacy which includes a right to contraceptives. The State of Olympus, in enacting the Reap What You Sow (RWYSA), violated Ms. Mindy Vo’s right to contraceptives. There is no refutation of the evidence supporting the religious affiliation to the promotion and use of contraceptives, as uplifted by the Church of Balance’s practice. In the cases of Griswold v. Connecticut, we see the establishment of a right to privacy for married individuals. This was not done without the mention of contraceptive use being affiliated with the right in question. This does only apply to married couples; however, Eisenstadt v. Baird expanded the original ruling of Griswold to single citizens, regardless of their marital status. Additionally, the respondent is protected under the first amendment to freely practice religion. The State of Olympus, in enacting the Reap What You Sow (RWYSA), violated Ms. Mindy Vo’s right to the first amendment’s free exercise clause. There is no refutation of the evidence supporting the religious affiliation to the promotion and use of contraceptives, as uplifted by the Church of Balance’s practice. In the cases of Griswold v. Connecticut, we see the establishment of a right to privacy for married individuals. This was not done without the mention of contraceptive use being affiliated with the right in question. This does only apply to married couples; however, Eisenstadt v. Baird expanded the original ruling of Griswold to single citizens, regardless of their marital status. 7

ARGUMENTS AND AUTHORITIES III. THE RESPONDENT WAS NOT AFFORDED A FUNDAMENTAL RIGHT TO PRIVACY WHICH INCLUDES A RIGHT TO CONTRACEPTIVES A right to contraceptives is found within Griswold v Connecticut’s 1965 ruling. There might not be explicit statements within the constitution of a right to contraceptive use, but as held by this court previously, “ In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.” Mr. Justice Douglas on page four (4) of his majority opinion concedes that there is a right to privacy afforded to our constituents under the first amendment. Douglas also states, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? This very idea is repulsive to the notions of privacy surrounding the marriage relationship.”, which is on Page five (5) of the same opinion. These two quotes work to illustrate the undeniable connection between privacy and contraceptive use. These constitutional penumbras uplift each other and tie closely. Yes, in Griswold’s case the right was afforded to married couples, but in fact, Eisenstaedt’s 1971 ruling justly expands the right to the individual, regardless of their marital status.  We can now circle back to prove that given Griswold’s acknowledgement of a right to privacy, as well as relating that to the right of contraceptive use. His rhetoric supports the fundamental liberty of being shielded from government intrusion in private matters, which he then references as being related to contraceptives. This means that Griswold is concrete evidence that there is a fundamental right to contraceptive use. We can also apply the idea of a right to contraceptives to the Obergefell test, which hails from the Obergefell v Hobbs 2015 ruling. 8

Douglas also states, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? This very idea is repulsive to the notions of privacy surrounding the marriage relationship.”, which is on Page five (5) of the same opinion. These two quotes work to illustrate the undeniable connection between privacy and contraceptive use. These constitutional penumbras uplift each other and tie closely. Yes, in Griswold’s case the right was afforded to married couples, but in fact, Eisenstaedt’s 1971 ruling justly expands the right to the individual, regardless of their marital status.  We can now circle back to prove that given Griswold’s acknowledgement of a right to privacy, as well as relating that to the right of contraceptive use. His rhetoric supports the fundamental liberty of being shielded from government intrusion in private matters, which he then references as being related to contraceptives. This means that Griswold is concrete evidence that there is a fundamental right to contraceptive use. We can also apply the idea of a right to contraceptives to the Obergefell test, which hails from the Obergefell v Hobbs 2015 ruling. Obergefell Test: On page five (5) of the record, a majority opinion of Justice Kennedy states the following, “History and tradition guide and discipline the inquiry but do not set its outer boundaries,” as well as page thirty-eight (38) of the record, “If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well.” These quotes are just prefaces for the illustration of the fundamental rights test applied to determine the viability of any fundamental right in question. It must be tangent with deeply rooted history and tradition, as well as narrowly defined. This test has held legal weight in other landmark cases, such as Gluckberg, and therefore is the correct test to apply. 10

The right to contraceptives successfully fulfills both prongs of this test with certainty. History and Tradition: On page six (6) of the record, we find that, “According to the National Center for Health Statistics (Center), 98% of sexually active women have used birth control at some point,” as well as on that same page, “In 1918, Sanger’s conviction was reversed by the New York Court of Appeals. That court found that women have a right to practice birth control.” There is procedural history, jurisprudence, and evidence to support a nation with a deeply rooted tradition and history that is intrinsically linked with contraceptives. F. The penumbras embedded in Griswold and Eisenstadt work to affirm the Respondent’s case A right to contraceptives is found within Griswold v Connecticut’s 1965 ruling. There might not be explicit statements within the constitution of a right to contraceptive use, but as held by this court previously, “ In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.” Mr. Justice Douglas on page four (4) of his majority opinion concedes that there is a right to privacy afforded to our constituents under the first amendment. Douglas also states, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? This very idea is repulsive to the notions of privacy surrounding the marriage relationship.”, which is on Page five (5) of the same opinion. These two quotes work to illustrate the undeniable connection between privacy and contraceptive use. These constitutional penumbras uplift each other and tie closely. Yes, in Griswold’s case the right was afforded to married couples, but in fact, Eisenstaedt’s 1971 ruling justly expands the right to the individual, regardless of their marital status.  11

G. The Ninth Amendment is substantial support in the long-standing tradition of access to contraceptives in America A right to contraceptives is found within Griswold v Connecticut’s 1965 ruling. There might not be explicit statements within the constitution of a right to contraceptive use, but as held by this court previously, “ In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.” Mr. Justice Douglas on page four (4) of his majority opinion concedes that there is a right to privacy afforded to our constituents under the first amendment. Douglas also states, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? This very idea is repulsive to the notions of privacy surrounding the marriage relationship.”, which is on Page five (5) of the same opinion. These two quotes work to illustrate the undeniable connection between privacy and contraceptive use. These constitutional penumbras uplift each other and tie closely. Yes, in Griswold’s case the right was afforded to married couples, but in fact, Eisenstaedt’s 1971 ruling justly expands the right to the individual, regardless of their marital status.  We can now circle back to prove that given Griswold’s acknowledgement of a right to privacy, as well as relating that to the right of contraceptive use. His rhetoric supports the fundamental liberty of being shielded from government intrusion in private matters, which he then references as being related to contraceptives. This means that Griswold is concrete evidence that there is a fundamental right to contraceptive use. We can also apply the idea of a right to contraceptives to the Obergefell test, which hails from the Obergefell v Hobbs 2015 ruling. 13

Obergefell Test: On page five (5) of the record, a majority opinion of Justice Kennedy states the following, “History and tradition guide and discipline the inquiry but do not set its outer boundaries,” as well as page thirty-eight (38) of the record, “If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well.” These quotes are just prefaces for the illustration of the fundamental rights test applied to determine the viability of any fundamental right in question. It must be tangent with deeply rooted history and tradition, as well as narrowly defined. This test has held legal weight in other landmark cases, such as Gluckberg, and therefore is the correct test to apply. The right to contraceptives successfully fulfills both prongs of this test with certainty. History and Tradition: On page six (6) of the record, we find that, “According to the National Center for Health Statistics (Center), 98% of sexually active women have used birth control at some point,” as well as on that same page, “In 1918, Sanger’s conviction was reversed by the New York Court of Appeals. That court found that women have a right to practice birth control.” There is procedural history, jurisprudence, and evidence to support a nation with a deeply rooted tradition and history that is intrinsically linked with contraceptives. H. The Due Process clause of the Fourteenth Amendment ensures that the Respondent’s access to contraceptives is not impeded by government law without due process A right to contraceptives is found within Griswold v Connecticut’s 1965 ruling. There might not be explicit statements within the constitution of a right to contraceptive use, but as held by this court previously, “ In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.” Mr. Justice Douglas on page four (4) of his 14

rooted history and tradition, as well as narrowly defined. This test has held legal weight in other landmark cases, such as Gluckberg, and therefore is the correct test to apply. The right to contraceptives successfully fulfills both prongs of this test with certainty. History and Tradition: On page six (6) of the record, we find that, “According to the National Center for Health Statistics (Center), 98% of sexually active women have used birth control at some point,” as well as on that same page, “In 1918, Sanger’s conviction was reversed by the New York Court of Appeals. That court found that women have a right to practice birth control.” There is procedural history, jurisprudence, and evidence to support a nation with a deeply rooted tradition and history that is intrinsically linked with contraceptives. IV. THE RESPONDENT IS PROTECTED UNDER THE FIRST AMENDMENT TO FREELY PRACTICE RELIGION A right to contraceptives is found within Griswold v Connecticut’s 1965 ruling. There might not be explicit statements within the constitution of a right to contraceptive use, but as held by this court previously, “ In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.” Mr. Justice Douglas on page four (4) of his majority opinion concedes that there is a right to privacy afforded to our constituents under the first amendment. Douglas also states, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? This very idea is repulsive to the notions of privacy surrounding the marriage relationship.”, which is on Page five (5) of the same opinion. These two quotes work to illustrate the undeniable connection between privacy and contraceptive use. These constitutional penumbras uplift each other and tie closely. Yes, in 16

Griswold’s case the right was afforded to married couples, but in fact, Eisenstaedt’s 1971 ruling justly expands the right to the individual, regardless of their marital status.  We can now circle back to prove that given Griswold’s acknowledgement of a right to privacy, as well as relating that to the right of contraceptive use. His rhetoric supports the fundamental liberty of being shielded from government intrusion in private matters, which he then references as being related to contraceptives. This means that Griswold is concrete evidence that there is a fundamental right to contraceptive use. We can also apply the idea of a right to contraceptives to the Obergefell test, which hails from the Obergefell v Hobbs 2015 ruling. Obergefell Test: On page five (5) of the record, a majority opinion of Justice Kennedy states the following, “History and tradition guide and discipline the inquiry but do not set its outer boundaries,” as well as page thirty-eight (38) of the record, “If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well.” These quotes are just prefaces for the illustration of the fundamental rights test applied to determine the viability of any fundamental right in question. It must be tangent with deeply rooted history and tradition, as well as narrowly defined. This test has held legal weight in other landmark cases, such as Gluckberg, and therefore is the correct test to apply. The right to contraceptives successfully fulfills both prongs of this test with certainty. History and Tradition: On page six (6) of the record, we find that, “According to the National Center for Health Statistics (Center), 98% of sexually active women have used birth control at some point,” as well as on that same page, “In 1918, Sanger’s conviction was reversed by the New York Court of Appeals. That court found that women have a right to practice birth 17

We can also apply the idea of a right to contraceptives to the Obergefell test, which hails from the Obergefell v Hobbs 2015 ruling. Obergefell Test: On page five (5) of the record, a majority opinion of Justice Kennedy states the following, “History and tradition guide and discipline the inquiry but do not set its outer boundaries,” as well as page thirty-eight (38) of the record, “If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well.” These quotes are just prefaces for the illustration of the fundamental rights test applied to determine the viability of any fundamental right in question. It must be tangent with deeply rooted history and tradition, as well as narrowly defined. This test has held legal weight in other landmark cases, such as Gluckberg, and therefore is the correct test to apply. The right to contraceptives successfully fulfills both prongs of this test with certainty. History and Tradition: On page six (6) of the record, we find that, “According to the National Center for Health Statistics (Center), 98% of sexually active women have used birth control at some point,” as well as on that same page, “In 1918, Sanger’s conviction was reversed by the New York Court of Appeals. That court found that women have a right to practice birth control.” There is procedural history, jurisprudence, and evidence to support a nation with a deeply rooted tradition and history that is intrinsically linked with contraceptives. E. The case of Employment Division, Department of Human Resources of Oregon v. Smith is relevant to RWYSA A right to contraceptives is found within Griswold v Connecticut’s 1965 ruling. There might not be explicit statements within the constitution of a right to contraceptive use, but as held by this court previously, “ In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.” Mr. Justice Douglas on page four (4) of his 19

majority opinion concedes that there is a right to privacy afforded to our constituents under the first amendment. Douglas also states, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? This very idea is repulsive to the notions of privacy surrounding the marriage relationship.”, which is on Page five (5) of the same opinion. These two quotes work to illustrate the undeniable connection between privacy and contraceptive use. These constitutional penumbras uplift each other and tie closely. Yes, in Griswold’s case the right was afforded to married couples, but in fact, Eisenstaedt’s 1971 ruling justly expands the right to the individual, regardless of their marital status.  We can now circle back to prove that given Griswold’s acknowledgement of a right to privacy, as well as relating that to the right of contraceptive use. His rhetoric supports the fundamental liberty of being shielded from government intrusion in private matters, which he then references as being related to contraceptives. This means that Griswold is concrete evidence that there is a fundamental right to contraceptive use. We can also apply the idea of a right to contraceptives to the Obergefell test, which hails from the Obergefell v Hobbs 2015 ruling. Obergefell Test: On page five (5) of the record, a majority opinion of Justice Kennedy states the following, “History and tradition guide and discipline the inquiry but do not set its outer boundaries,” as well as page thirty-eight (38) of the record, “If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well.” These quotes are just prefaces for the illustration of the fundamental rights test applied to determine the viability of any fundamental right in question. It must be tangent with deeply 20