law school outline: constitutional law 2

Constitutional Law II

  1. Class info

  1. Exam: 100% essay.
  2. Standing is not on exam (jurisdiction, justiciability, causation)

  1. Procedural Due Process

  1. Procedural vs. Substantive

  1. Procedural asks if the deprivation is performed according to the proper procedure.
  2. Substantive asks if there is sufficient government justification, depending on level of scrutiny, to deprive life, liberty or property interests if those interests in fact exist.

  1. "No State shall deprive any person of life, liberty or property without due process of law."

  1. Democracy vs. power of the Supreme Court: Protect minorities from tyrrany of majority
  2. Shields private fundamental rights from exercise of arbitrary government power.

  1. Selective incorporation

  1. Analysis

  1. Is there a deprivation?
  2. Is there a life, liberty or property interest?

  1. Property

  1. The liberal era expanded property interest to include welfare benefits, drivers license, education, and even jobs.
  2. The modern conservative era has restricted these expansions to rights (welfare, education), not privileges (drivers licenses, jobs), unless individual has a legitimate claim of entitlement.
  3. Legislature can decide whether there is "property," but once it is created, only a hearing can take it away. That is the distinction between rescinding a benefit already created, and refusing to grant a benefit in the first place.
  4. Constitution does not create property interest. Rather, it extends various procedural safeguards to certain interests that are created by an independent source such as state law.

  1. Liberty

  1. Megan�s Law: Reputation is not a liberty interest unless state gives it an interest, or if demonstrated tangible loss is present.
  2. Conditions of parol, such as registration as a sex offender or chemical castrations (injection of hormones).

  1. Can arise from an objective expectation of an interest.

  1. If yes to either, what process is due? Hearing before an unbiased decisionmaker is required for deprivation of life, liberty or property by the government.

  1. Hearing serves to provide more accurate facts, and to recognize and promote the dignity of those whose interests are at stake by allowing participation in the process.

  1. Prior notice can substitute for hearing depending on importance of private interest, value of procedural safeguards, and government interest in efficiency.

  1. Subject to voluntary and knowing waiver.

  1. Tools of interpretation

  1. Interpretivism v. Non-interpretivism
  2. Textualism v. Non-textualism
  3. Originalism v. Non-originalism

  1. Equal Protection

  1. Source: 14th limits state, 5th limits federal

  1. Does not guarantee equal treatment � only equal laws.
  2. Protects people, not groups. Ensures personal right to equal protection of the laws.

  1. Scope

  1. De Jure: Facial, Application / Administration, Motive
  2. De Facto (effect): Not actionable unless showing of intent.

  1. Tests for determining if classification is a justifiable means:

  1. Strict Scrutiny: Requires that classification be necessary to achieve a compelling state interest, with presumption of invalidity.  Requires narrowly tailored means.

  1. Suspect class (race, national origin, alienage)

  1. Factors

  1. Immutable characteristics, defined by society
  2. Discrete and insular minorities
  3. Historical lack of political power and group discrimination
  4. Exclusion from political process

  1. Profiling

  1. Greater deference for security (national, local) and borders (patrols)
  2. Allowed if based on identifiable problem, such as Asian gang task-force.

  1. Desegregation

  1. Plessy: Separate but equal is ok
  2. Brown I & II: Separate but equal is inherently unequal due to qualities incapable of objective measurement. Whole purpose of separation is inequality, therefore impossible to be equal.
  3. Mandate to affirmatively act to desegregate de jure segregated schools. De facto segreagated schools (mainly in the north) were mandated to desegregate, if showing of purposeful segregation (broad), but not only if impact was segregated.
  4. Bussing ok, but can�t risk health or educational process of children because of long distances.
  5. Multidistrict remedies ok only if violation in one district had significant segregative effect on another district.
  6. Federal supervision intended as temporary measure to remedy past discrimination.

  1. Benign discrimination (affirmative action) is viewed using the same strict scrutiny test. Government may has a compelling interest in remedying past discrimination, so long as the past discrimination is identifiable. Not just general societal discrimination.

  1. Prohibited by 209 in California.
  2. Race can be taken into account by school admissions, i.e. deem it a plus, in order to remedy past purposeful discrimination. Quotas not permitted. Diversity interest alone will not satisfy strict scrutiny.
  3. Minority set-asides and other employment related stuff: Societal discrimination alone is not enough justification. Must have showing of past discrimination by government unit involved. Elimination of actual racial imalances in traditionally segregated job categories is fine, need not be limited to actual victims of prior discrimination. Set-asides by congress are given substantial deference.
  4. Legislative apportionment can include race as a factor (majority-minority districts), so long as minority strength not minimized and race is not dominant factor.

  1. Fundamental rights

  1. Equal Protection: Treating people differently based on the exercise of a fundamental right.

  1. Travel

  1. Short limits, such as 30 day residency to vote, are ok
  2. Right is for migration and change of domicile � not visit or pass through a state.

  1. Voting

  1. Apportionment: Each congressional district must contain the same population as nearly as practicable, because each voter is entitled to have an equally weighted vote. Deviation < 10% is permissible, without further explanation.
  2. Constitution does not require that state officials be elected, but if they are elected, the votes must be equally weighed.
  3. Infringement on equal right to vote

  1. Selective denial of franchise based on anything other than residence, age and citizenship is prohibited without compelling state interest.
  2. Individual vote dilution: Must maintain same ratio of elected officials to population. Reapportionment every 10 years. Showing that a smaller deviation was possible is a prima facie case, state must show legitimate state objective.
  3. Group vote dilution (usually achieved by at-large voting). Must show that the members of the group lack an equal opportunity to participate and influence in the local political process. Suspect intent required for strict scrutiny.
  4. Assignment of voters to districts based on race (majority-minority districts), unless compelling governmental interest. Gerrymandering (redistricting to disadvantage identifiable racial or political group): Intent to discriminate plus effect that consistently degrades influence.
  5. Denial of access to ballot. No fundamental right for candidate to be on ballot, but fundamental right to vote for candidate, and right to associate with others for political purposes and to advance a candidate.

  1. Marriage
  2. Enumerated rights

  1. Intermediate Scrutiny: Requires that classification be important to achieve an substantially (now: exceedingly) related state interest.

  1. Quasi-suspect class (gender, alienage, legitimacy)

  1. Classifications upheld when realistically reflects the fact that the sexes are not similarly situated in those certain circumstances, and when classification is substantially related to achievement of asserted government interest.
  2. Applies whether discriminatory or benign (compensatory to women, but generally upheld).
  3. History of gender cases

  1. 1971: No gender preferences in choosing administrator of estate.
  2. 1973: No gender preferences in military benefits.
  3. 1976: No laws preventing women from bartending. First use of new intermediary test.
  4. 1981: Different gender-ages for statutory rape laws are legal.
  5. 1982: All female nursing schools are not permissible.
  6. 1986: Peremptory challenges unconsitutional
  7. 1996: All-male publicly funded military institute must open up to women, although separate but truely equal school for women would be okay.
  8. California applies strict scrutiny for state gender cases.

  1. Alienage

  1. Federal: Supremacy clause gives deference to federal government over state government. Subject to rational basis test.
  2. State: Strict scrutiny except when political function, such as a job involving public policy (teacher, police), then rational basis test is used.
  3. Denial of welfare benefits to aliens or free public education to undocumented aliens prohibited.

  1. Quasi-fundamental right

  1. Rational Basis: Requires that classification be rationally related to legitimate state interest (examine congressional intent) without much regard for efficiency of the law (deferential/traditional rational basis), and that the means be a reasonable way to accomplish the goal. Presumption of validity: Overturned only if p proves the law is invidious, wholly arbitrary or capricious.

  1. No suspect or quasi-suspect class

  1. Court can look for group animus (Romer) or unfair treatment and adds additional "bite" to the test, which approaches the level of intermediate scrutiny.
  2. Includes mental retardation and sexual orientation. But court looks for overinclusiveness/underinclusiveness and

  1. Romer overturned Amendment 2 because it withdrew from gays, but no others (i.e. opticians), the ability to utilize the government process to create legal protections. State cannot so deem a class of persons a stranger to its laws. You can�t make it more difficult for one group of people to achieve legislation than for another group of people.
Same sex marriage: Challenge on EP gender grounds would kick it up to intermediate scrutiny.No fundamental right involved

  1. Poverty / subsistence

  1. Access to courts: Waiver of court fees for fundamental interests
  2. Education. Discriminatory laws use intermediate scrutiny. Prohibits laws which totally deny some children the chance to acquire minimally adequate education. Disproportionate financing is ok.
  3. Public benefits

  1. Access to ballot
Misconguence: Law trying to prevent a certain type of mischief includes non-mischievous people (overinclusive) or misses some of the mischievous people (underinclusive).   Vagueness. State Action requirement

  1. Deprivation of right must have been caused by state law
  2. State actor

  1. Government official
  2. Private performance of public function

  1. Private jail
  2. Private company town
  3. Shopping centers: Not federal, but yes for state (Pruneyard Free Speech rights).
  4. Court is very hesitant to expand this to private schools, utilities, etc.
  5. That activity which is sanctioned by the government and traditionally and exclusively the power of the state.

  1. Judicial enforcement of private agreement

  1. Racially restrictive covenants

  1. Joint activity of government + private actor

  1. Liquor license for a private discriminatory club isn�t enough. But other laws have been created to prohibit such discrimination.
  2. Mutual benefit, more than government funding of a private activity.
  3. Exercise of preemptory challenges (racial jury bias)

  1. Government endorsement of private conduct
Enabling clauses of the 14, 14 and 15 Amendments

  1. Congress can make laws to remedy an already recognized wrong or right. Cannot define scope of the rights. May include civil damages, or criminal damages.
  2. Slavery: Extended to badges & incidents of slavery, including refusal to enter into private contracts based on race (therefore exclusion from private school based on race). �1985 protects enjoyment of basic civil rights from racial discrimination, which includes right to use public highways. Private conspiracy to deny that right is illegal. Expands to all racial groups � not just blacks.
First Amendment Free Speech

  1. Original Intent: "Congress" has been expanded to include state and local governments.
  2. Speech: Conduct intended to communicate a message and reasonably understood to communicate that message
  3. Protected

  1. Political Speech

  1. Campaign financing: Direct expenditures cannot be limited, but contributions can. Disclosure requirements are ok.

  1. Commercial Speech

  1. Where the main purpose and content of the message is "strictly business."
  2. Mid level scrutiny is used.

  1. False or misleading statements and proposing an illegal transaction commercial speech can be prohibited (prior restraint).
  2. Otherwise, intermediate scrutiny applies (substantial government interest which the restriction directly advances in no more extensive manner than necessary, and leaves open ample alternative channels).

  1. Restrictions on legal profession � i.e. solicitation � are permissible.
  2. Billboard restrictions for aestetic reasons are ok, but newspaper rack restrictions aren�t ok unless applies to all racks.

  1. Soliciting is protected (except for lawyers), but there is no right to be heard.
  2. Required disclosures permissible if not unduly burdensome and reasonably related to state�s interest in preventing deception.

  1. Everything else except unprotected speech

  1. The more traditional the medium of speech (handbills, peaceful picketing), the greater the protection.
  2. Internet: Broad categorial prohibitions (Communications Decency Act of 1996) are prohibited due to vagueness. No extensive history of regulation. No invasion.

  1. Unprotected

  1. Criminal speech
  2. Obscenity: Completely unprotected

  1. Test

  1. Whether the average person, applying contemporary community standards [subject to a national minimum level of tolerance], would find that the work, taken as a whole, appeals to the prurient (shameful or morbid) interest in sex;
  2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law; and

  1. Depiction of description of hard core sex acts
  2. Patently offensive to average person with contemporary community standards.

  1. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (measured by reasonable person standards).

  1. Restrictions

  1. Subsequent punishment or prior restraints are ok.
  2. Home possession and use generally ok, but distribution can be punished.
  3. Zoning laws (adult theaters/bookstores) are ok so long as not completely suppressed.

  1. Pornography

  1. Sexually explicit material that does not meet the obscenity test (porn) is usually protected. Some restrictions are ok, so long as not a complete prohibition on dissemination or based on content.
  2. Balancing test of time, place and manner.

  1. Child pornography

  1. Compelling interest in protecting children, regardless of value of speech.
  2. Possession alone is an offense, in order to block the entire line of distribution.
  3. Regardless of obscenity test.
  4. Covers media which "appears" to be a child or "conveys the impression" that a child is involved; encompasses doctored photos which aren�t actually children.

  1. Only safe harbor: Prove it was a real person who isn�t under 17, and didn�t advertise it as child porn.

  1. "Lewd exhibition" does not encompass pictures of your child in the bathtub.

  1. Incitement

  1. Advocacy of unlawful conduct

  1. Clear & Present danger

  1. Speaker can be punished only when that is the only option to abate the danger.

  1. Standards are incitement, immediacy, imminence and seriousness of harm.
  2. Otherwise, "more speech" is the appropriate remedy.

  1. Dennis Test
  2. Brandenburg test: Speech must be directed to inciting or producing imminent lawless action and likely to incite or produce such action.

  1. Fighting words & hate speech

  1. Narrowly drafted statutes can prohibit speech which reasonable person would know that the speech is inviting an unthinking, violence response (likely to incite immediate breach of peace) in a provocative way from a reasonable addressee with actual addressee's traits._
  2. No list of words � the context (circumstances and manner of delivery) is the deciding factor.
  3. Hate speech restrictions are content based, and usually not upheld. Includes speech against a group of people. Racist or bigoted speech on campus is usually struck down, even in private campus.
  4. Indecent or vulgar language is protected, but more restrictions on broadcast media.
  5. Epithets likely to provoke the average person to retaliation and thereby cause an immediate breach of the peace can be prohibited.
  6. Balance rights of individuals vs. rights of public; state has no right to cleanse public debate.
  7. Prohibitions on cross burning are content based, and therefore invalid. Prohibition based on outdoor fires is fine.

  1. Hostile audiences: Crowd�s reaction to a speaker can permit silencing the speaker only when danger of riot or disorder is present. Hecklers who are substantially disturbing a meeting can be removed.

  1. Defamation

  1. Public official or voluntary public figure (narrowly construed): Clear and convincing evidence of actual malice required (knowledge of falsity or reckless disregard for truth). Statement must have been false. Opinions are absolutely protected, unless reasonably implies existence of certain false and defamatory facts. Damages are presumed.
  2. Private person in matter of public concern: Negligence as to statement�s truth or falsity; damages only for proved actual injury (proving malice = presumed damages).
  3. Private person in matter of private concern: Negligence as to statement�s truth or falsity; damages presumed, punitive damages available if appropriate.

  1. Publisher disclosing accurate information released in official records is ok � even if rape victim or minor.

  1. Group libel: No such thing, unless tendency to induce violence.
  2. Other possible torts include intentional infliction of emotional distress, invasion of privacy, appropriation.

  1. Protections & restrictions

  1. Prior restraints (licensing or permit schemes or injunctions, but not subsequent punishment), are presumed unconstitutional.

  1. Troopship exception: Claims of national security in light of an ongoing military action. But Pentagon Papers said this is a hard burden to meet. Outcome must be inevitable, direct and immediate.
  2. Gag order for court cases ok to preserve accused�s Sixth Amendment right to fair and impartial jury and to protect witness, upon specific findings of necessity and no less intrusive means. Highly suspect. Otherwise, public and press have a right to attend criminal trials.
  3. Press has the right to publish truthful information lawfully obtained from public records (i.e. names of child criminals).
  4. Licensing/permit schemes must not censor speech, must not have unlimited discretion, and must have defined standards.

  1. Content-neutral regulation

  1. Time, place & manner restrictions are permissible so long as they pass intermediate scrutiny (narrowly tailored, but not necessarily least restrictive alternative, to advance significant government interest, and permit ample alternative channels for communication of the information).

  1. Restricting place of speech at fair or airport to a booth.
  2. Picketing

  1. Focused picketing at target�s house can be banned (preventing assault on captive audience). Reasonable buffer zone is fine.
  2. Buffer zone of reasonable size (15�) around abortion clinic is fine, but floating zone is unduly restrictive.

  1. Requiring a permit for a parade
  2. Restrictions for aesthetics, such as restrictions on billboards and utility pole signs, are fine, so long as they are not based on the viewpoint or expression and are administered impartially. Restrictions on distribution of leaflets to control littering are not permissible � must punish those who litter.
  3. Zoning restrictions of nudie-bars to certain areas of town, but not totally eliminating them.

  1. Regulation must be unrelated to suppression of free expression and not reference the content, otherwise, strict-scrutiny applies.
  2. Regulation must not allow public official to have such broad discretion that he can act as a public censor.

  1. Content-based regulation

  1. Strict scrutiny, unless:

  1. Unprotected speech
  2. Non-public forum: Reasonable + viewpoint neutral

  1. Must not be vague
  2. Invalidated types

  1. Viewpoint restrictions (particular point of view)
  2. Subject matter restrictions (political billboards, nudity at drive in theaters)
  3. Speaker restrictions
  4. Restrictions based on offensiveness of expression (flag burning)
  5. Restrictions where the underlying interest is related to the suppression of free expression.

  1. Content vs. viewpoint: Content is a flier. Viewpoint is what is on the flier.

  1. Conduct can be restricted

  1. O�Brien test

  1. Within government's power
  2. Furthers substantial government interest
  3. Interest unrelated to suppressing expression
  4. Restriction not substantially greater than essential.

  1. Symbolic speech is protected, but can be regulated if the conduct can be regulated (i.e. flag burning can�t be prohibited, but fires can be)

  1. Flag burning restrictions are content-based. Irony of restricting flag burning is that the flag stands for the right to burn the flag. Burning the flag is a celebration of what the flag stands for.

  1. Sufficiently important governmental interest in regulating nonspeech element of combined speech/nonspeech can justify incidental limitations on speech.

  1. Public indecency statutes

  1. Secondary effects doctrine: Restrictions on speech with a bad effect will be upheld under intermediate scrutiny. Conduct can be restricted � speech cannot.

  1. Draft card burning: Prohibition ok because of interest in facilitating smooth functioning of draft system.
  2. Cross burning prohibition ok to ban outdoor fires.
  3. Effect of porno theaters on surrounding community.
  4. Littering can be prevented by punishing littterers � not by restricting persons passing out handbills.
  5. Language which is sexual harassment in the workplace can be proscribed, because the secondary effect is the harassment and decreased work performance.

  1. Type of forum

  1. Public forum: Traditionally dedicated to the free exchange of ideas. Includes streets, sidewalks, and parks.

  1. Broadcast media can be more restricted due to history of licensing, limited frequencies, invasion into home.
  2. Regulation must be content neutral, narrowly tailored, serve significant government interest, and leave open ample alternative forums.
  3. Library, so long as silent.
  4. Government cannot completely shut down public forums from expression.
  5. Content neutral restrictions (see above analysis) ok.

  1. Dedicated/designated (limited) public forum: Not traditionally dedicated, but government has intentionally dedicated for expressive activity. Selective access is ok, so long as not based on content. Government can totally shut down if they want to, but can�t be selective based on content. Once the government designates a forum, it is treated as a public forum.

  1. Municipal theater, if the space is opened up for expressive use.
  2. Creation requires strong evidence.

  1. Nonpublic forum

  1. Welfare office, courtroom, adopt-a-highway signs, jails, public transit busses, mailboxes, airport terminals, postal sidewalk.

  1. Although since jails have become an arena for protests at the time of executions, arguably it is a public forum during certain times. Balancing test.
  2. Court gives deference to cities and legislatures designation of the forum as nonpublic.
  3. Schools

  1. Antinoise ordinance covering areas around a school is fine, because manner of expression is incompatible with normal activity of the place.
  2. Mail facilities

  1. Restrictions include time, place and manner, as well as reserving the forum for its intended purposes. Restriction must be reasonable and not an effort to suppress based on opposition to viewpoint. Otherwise, content-based restrictions (based on speaker, subject matter, etc.) are ok, so long as reasonable in light of the purpose of the forum and viewpoint neutral.
  2. Government is allowed to act as proprieter of property, not just as lawmaker.

  1. Private property: Restrictions require strict scrutiny, although property which is open to the public (shopping center) protects reasonable speech.

  1. Special context

  1. Schools

  1. Student speech may not be prohibited unless necessary to avoid material and substantial interference with school work, discipline, or rights of others.

  1. Offensive speech can be prohibited.
  2. Passive expression of opinion counts as "speech."

  1. School-sponsored publications and sponsored expressive activities can be regulated as nonpublic forums. Includes editorial control, as well as control over style and content.
  2. Removal of books from school library must be for pedagogical, not ideological, reasons. School can prevent a book from being placed in the library for any reason.

  1. Broadcasts (radio/TV) are subject to greater regulation in the areas of obscene, pornographic and indecent speech. Basis is traditional regulation, limited resources (bandwidth). Less regulation permissible for cable.

  1. Indecent broadcasts can be heavily restricted due to traditional restrictions on broadcast media and captive audience theory. Usually time of day restrictions based on nuisance. Congress cannot ban indecent cable shows, but can authorize cable operators to censor.

  1. Public employees

  1. Speech related to public concern cannot be restricted.
  2. Speech related to private concern can be restricted if it interferes with effective functioning of the office or brings discredit upon the office.
  3. Active political campaigning by public employees can be restricted or prohibited. Must apply equally to all partisan activities.
  4. Patronage

  1. Old test: Nonpolicymaking, nonconfidential government employees cannot be fired because of their political party.
  2. New test: Hiring authority must demonstrate that party affiliation is an appropriate requirement for effective performance of the public office involved. Includes independent contractors.

  1. Public funding of speech

  1. Government may refrain from paying for speech with which it disagrees

  1. NEA selection of certain types of art is ok, because government doesn�t have obligation to support arts, and therefore if it does, it can choose what arts to support. Lack of support does not constrain someone from speech.
  2. Not viewpoint discrimination � just selective funding (!). Government can disburse public funds to private entities to convey a government message, and may take steps to ensure that the message is the one it wants.

  1. Government may not deny a benefit (penalize) to someone because they exercise a constitutional right, such as free speech.

  1. Viewpoint-based restrictions are not proper when the University does not itself speak or subsidize transmittal of a message, but intesead expends funds to encourage a diversity of viewpoints.

  1. Procedural challenges

  1. Prior restraint
  2. Vagueness

  1. Chilling effect on speech because people can�t understand it.

  1. Overinclusive / underinclusive:  Ends-means test, usually fatal for strict scrutiny because SS requires tight means/ends fit.

  1. Compelled speech

  1. Forced flag salute is not permitted
  2. Compelled oaths of public employees and lawyers to support constitutions is ok.
  3. Broadcast media subject to regulation because of traditional regualtion, limited frequencies. Content-based restrictions are fine, including indecent language. Cable TV "must carry" provisions are fine, otherwise cable TV is less restricted than broadcast TV.

  1. Fairness doctrine: Politicians attacked or opposed by a broadcaster have a right of reply.
  2. FCC can (in certain circumstances) require broadcasters to sell reasonable amounts of time to candidates.

  1. Compelling a fruit grower to contribute to generic product advertising is fine because no restraints on speech, no actual or symbolic speech being compelled from person, and no political or ideological views being forced.
First Amendment Right of Association (not on exam)

  1. Infringements justified if serving compelling state interest in the least restrictive fashion.
  2. Compelled disclosure of membership prohibited if potential for reprisal, and not necessary for compelling state interest. Otherwise government must have direct and substnatial government interest to force disclosure, which outweighs individual anonimity rights.
  3. Compelled admission of women / minorities permitted on the basis of public accomodations laws, which require desegregation, because infringement on expressive activities of other members is minimal, and interest in erradicating discrimination is large. Boy scouts and girl scouts can maintain segregation, but there are restrictions upon which public accomodations they can use for meetings.
  4. Protects only those associations related to First Amendment protected activity.

  1. Groups advocating the violent overthrow of the government are not protected.
  2. Member of a group can be punished for engaging in unprotected advocacy or activities if

  1. Group engages in advocacy or activities which are not constitutionally protected; and
  2. Individual has knowledge of activity and specific intent that its illegal aims be accomplished.

  1. Employees can be forced to join a union in certain circumstances.
  2. Government may require disclosure of past or present organizational affiliations that are relevant to loyalty, fitness and suitability for public employees, lawyers and recipients of public benefits.
  3. Some anti-gang ordinances which prohibit associations based on membership have been upheld. But Sup. Ct. rulings say that association itself should not provide the basis for punishment.

  1. Establishment

  1. General

  1. Neutral laws are ok, but laws directed at establishing, favoring or restricting all or certain religious practices requires strict scrutiny.

  1. Coercion, symbolic endorsement, financial support.

  1. But accomodating a person's religious beliefs is fine (free exercise).

  1. Students not having to go to school on their religious days
  2. Allowing parents to educate their children at home

  1. Does not require complete separation of church and state.
  2. No requirement that the government must exclude religious speech from forums it has otherwise opened to expression, so long as it does not appear that government is endorsing a particular religion (i.e. balancing points of view present). In fact, such exclusion would be content-based, and therefore strict scrutiny would apply, if it is a public forum. 

  1. "In God we trust" on money, sunday closing laws, prayers in Congress, and Christmas as a national holiday is ok, so long as presented in non-secular fashion (historical exceptions).

  1. Test

  1. Court is split between separationist view and nonpreferencial view.
  2. Nondiscriminatory aid:  Lemon test, which has been severely criticized (and often the court uses an ad hoc test), is:

  1. A secular (non-religious) purpose to the law;
  2. Primary / principal effect neither to advance nor inhibit religion; and
  3. No excessive entanglement

  1. Discriminatory (amongst religious groups) aid:  Larson strict scrutiny test

  1. Forms

  1. Aid to schools

  1. If directly benefiting students, it's ok (books, transportation, health services)
  2. If benefiting the schools it's a problem.

  1. Vouchers paid to schools, unless also paid to public schools.
  2. Tax credits are ok.

  1. Generally aid to higher education is ok, where aid to lower education is not, due to coersive nature.

  1. In-school events

  1. Prayer prescribed by the government is prohibited.
  2. Moments of silence are prohibited if no secular purpose.
  3. Prayer at school events (sports, graduation) must not be coercive (ad hoc test developed by the court).  Students must not be coerced into listening to prayer, regardless of denomination or "strength" of the prayer.
  4. Courses which contain references to the Bible which are academic in nature are fine, because purpose is secular.  Censorship would violate Free-Speech clause.
  5. Equal access to facilities to both secular and religious groups is fine so long as passes Lemon test.

  1. Standing requires P be directly affected by action complained of.

  1. Free Exercise

  1. Bars government from singling out religion for adverse treatment or hindering a particular religion without strict scrutiny.
  2. Statues must

  1. Not compel anyone to adopt a particular belief; and
  2. Not specifically target religious conduct

  1. Laws regulating general conduct are valid, even if interferes with religious conduct.   No right to religious exemption (polygamy).

  1. Purposefulness

  1. Purposeful regulation (reflects a desire to get at certain religious beliefs) is impermissible. 
  2. Nonpurposeful regulation is permissible.

  1. Incidentalness

  1. Direct burdens require strict scrutiny
  2. Indicental burdens don't require any justification.

  1. Conscientious objectors must object to war in any form.

  1. A list of protected religions would violate the Establishment Clause

  1. Court looks to see if "new" religion seeking protection parallels that which we know are protected religion.
  2. Court can examine sincerity of person asserting religious tenants (must be beyond merely a political or philosophical view).

  1. Standing requires direct personal injury and interference with own religious beliefs.

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