Escolar Documentos
Profissional Documentos
Cultura Documentos
1
II. PERMISSIBLE ACCOMMODATION.....................................................................................1
A. Strict Separation: ...........................................................................................................1
B. Neutrality Theory: ..........................................................................................................1
C. Accommodation: ............................................................................................................1
D. Primary question: When can the government provide benefit to religious entities?......1
E. Secondary question: What is the burden?.......................................................................2
III. ESTABLISHMENT CLAUSE: ...............................................................................................2
A. Was intended to erect a wall of separation between the church and state. E.C. is about
the balance of power between the church and state as exercised by government officials.
2
B. Requires that court examine the context of the message that the state action endorses.. 2
C. Lemon v Kurtzman (1971): 3 prong test for Establishment Clause violations (a law is
unconstitutional if it fails any prong). Strict separationist approach...................................3
IV. FREEDOM OF EXPRESSION................................................................................................3
B. Content-based Restrictions .............................................................................................3
C. Content-neutral..............................................................................................................12
V. EQUAL PROTECTION..........................................................................................................13
A. Historical background of race and the Constitution......................................................13
B. The 14th Amendment: All persons born or naturalized in US are citizens. No state
shall make a alw that shall abridge the privileges or immunities of citizens, nor shall any
State deprive any person of life, liberty, or property w/o due process of the law, nor deny
any person equal protection of the laws. After the 14th, minorities fell within the
“universe of equality” b/c of the word “citizen.”...............................................................14
C. All equal protection cases pose the same question; is the government’s classification
justified by a sufficient purpose?........................................................................................14
VI. IMPLIED FUNDAMENTAL RIGHTS UNDER EQUAL PROTECTION..........................20
A. Government infringement on fundamental rights are subject to strict scrutiny............20
B. If a right is not fundamental, then it gets rational basis review; this applies to claims
under both equal protection and due process.....................................................................20
C. PRIVILEGES OR IMMUNITIES CLAUSE: § 1 of the 14th Amendment provides
that “no State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States.”.....................................................................20
D. INCORPORATION: Bill of rights only applicable to the federal gov’t. Therefore, the
1st and 5th only applied to the federal gov’t and not the states. The 9th and 10th open up
possibility of implied rights that can be incorporated. (e.g. the 9th, reserves rights not
enumerated to the people, 10th reserves all rights not granted to the fed or prohibited to it
by the States, to the the people...........................................................................................21
VII. Substantive Due Process/Economic Interests: whether the gov’t has an adequate reason for
taking away a person’s life, liberty, or property. In other words, is there a significant
justification for the gov’t’s action? Whether there is such a justification will depend on the level
of scrutiny used. ............................................................................................................................21
VIII. Voting: Nowhere in the constitution does it say that voting is a substantive due process
right but it seems to be implicit.....................................................................................................22
1
The Court was trying to distance itself from policy making. It was really saying to Smith, if you don’t like it petition your state legislature not
the courts.
2
Because of Smith, Congress passed RFRA overruling the Court’s decision to use low level scrutiny and instead determined that all religious
case should get strict scrutiny. In the City of Beorne v Flores, the Court declared the RFRA was unconstitutional as applied to the States but there
is some ambiguity if it still applies to the federal government. The current belief is that it is invalid because of the separation of powers doctrine
but the Court has not address it to date. Anyway, the standard to use should be Smith.
UNPROTECTED SPEECH
(May be suppressed)1st AMENDMENT – PROTECTED SPEECH
Content-Based Restriction → Strict Scrutiny
Time/Place/Manner Restriction → Intermediate Scrutiny“Obscenity”
Roth; Miller
But certain obscenity in the home is not illegal“Defamation”
Near v. Minnesota
But may not be subject to prior restraint“Fighting Words”
Chaplinsky
• Must look at the context.HIERARCHY OF PROTECTED SPEECHPolitical/Religious speech – Highly Protected (Brandenburg
Imminent Lawless Action Test) most protected, but gov’t may censor (i.e. during times of war).
• Ex: Schenk → BrandenburgIntermediate Speech – Protected
• Ex: Offensive AND Political Speech (Cohen v Cali)
• Ex: Sexually oriented speech/conduct (??????)Low-value Speech – Protected (but not obscenity)
• Interest Balancing Test
• Ex: Pornography, digital child porn
But: Child porn is prohibited to protect the kids – legitimate state objective (NY v Ferber).
Ex. Purely offensive speech – Feiner
5
Probable EffectSchenck
Unclear CPD ← ← ← Time Line ← ← ← *Only conviction overturned
6
Lewd, Profane & Indecent: Generally such speech is protected by the 1st, but there are exceptions. Fighting words doctrine: the court uses 3
techniques to overturn convictions of statutes that target fighting words:
• by ruling it applies only to speech directed at another person that is likely to produce a violent response.
• courts frequently found laws prohibiting fighting words to be unconstitutionally vague or overbroad
• laws the prohibit fighting words – such as expressions of hate based on race or gender – to be impermissible content-based restrictions of
speech.
Strict ScrutinyCompelling
• Race based distinctions are never justifiable
• Fundamental right
Religion may sometimes fall under this category but is typically handled under Establishment or Religion ClausesLeast
deferenceIntermediate Scrutiny
Justice Stevens would apply this level across the board to all cases.Important/Substantial
• Burden on the government to introduce during the course of litigation
• Does not have to be present during the time of the creation of the statute/policy
There can be litigimate differences bwtn genders so that the two groups are not similarly situated and cannot always be treated equally.Median
deferenceRationality ReviewRational
• Economic cases tend to fall under this leg of review.
Disabilities or treatment of the disabled are best decided by the legislature – they are more institutionally competent to determine who gets
what.Almost total deference
Government has wide latitude
10
The fight is always under what level of scrutiny the law should be reviewed. If it is strict then it is virtually always fatal to the challenged law.
Thus, the opponents of the law will always try to argue strict scrutiny. If rational review the Court will rarely declare the law unconstitutional.
Thus, the proponents of the law will always argue that rational review is the appropriate level of scrutiny.
11
Insular Minority: Footnote 4 of Carolene Products: If you have an instance of an insular and discrete minority (a group that can’t have an
influence on the political process) then you have strict scrutiny. The attempt was to say that race is an immutable characteristic (you can’t do
anything about it), and those designated by race are an insular minority. Therefore you can’t invidiously discriminate on the basis of race.
12
Carolene Products, the judiciary will defer to the legislature unless there is discrimination against a discrete and insular minority or
infringement of a fundamental right.
13
Grizwold v Connecticut, Justice Goldberg, in a concurring opinion, used to justify invalidating a law prohibiting the use of contraception.