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235 Cards in this Set
- Front
- Back
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CONSTITUTIONAL LAW
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When you first get a Con Law question, what do you ask?
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Who is the actor in the question?
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Who are possible actors in the question?
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Congress, President or Federal Executive Branch, Federal Courts, State/Local Governments, Private (non-government)
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Congress
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1. Does Congress have the authority to act?
AND/ OR 2. Has Congress violated a limit on its power? |
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President or Executive Branch
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1. Has the President/Executive Branch exceeded the scope of executive powers?
AND/OR 2. Has the President/Executive Branch violated a limit on government power? |
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Federal Courts
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Does the Federal Court have the authority to hear the case?
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State/Local Government
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Has the state/local government violated a limit on its power?
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Private (non-government actor)
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1. Is there state action?
AND, IF SO, 2. Does it violate the Constitution? |
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THE JUDICIAL POWER
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Federal judicial power extends to cases involving
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1. Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws; AND
2. Disputes between states, states and foreign citizens, and citizens of diverse citizenship *THIS POWER COMES FROM ARTICLE III* |
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What can the Supreme Court review?
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1. The constitutionality of acts of other branches of the federal government
2. State acts pursuant to the Supremecy Clause |
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Article III Courts
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1. Subject matter jurisdiction
2. Party jurisdiction 3. Case or Controversy |
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Two ways in which cases come to the Supreme Court
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1. Writ of Certiorari
2. Appeal |
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Writ of Certiorari
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1. Cases from state courts where
1) the constitutionality of a federal statute, federal treaty, or state statute is in issue OR 2) a state statute allegedly violates federal law 2. All cases from federal courts of appeals |
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Appeal
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Decisions by 3 judge federal district court panels that grant or deny injunctive relief
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Limitations on exercise of federal jurisdiction
STRICT NECESSITY |
Whether a case is justifiable (if the federal court can hear it)
You need a case or controversy |
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Other limitations
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1. No advisory opinions
2. Ripeness 3. Mootness 4. Standing |
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No Advisory Opinions
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- Must be a specific present harm or threat of specific future harm
- Complainants must show that they have engaged in or with to engage in specific conduct and that the challenged action poses a real and immediate danger to their interests |
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Ripeness
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Plaintiff is not entitled to review of a statute or regulation before its enforcement
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EXCEPTION
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The plaintiff will suffer some harm or immediate threat of harm
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Mootness
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- Real controversy must exist at all stages of review
- If the matter has already been resolved, the case will be dismissed |
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EXCEPTIONS
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1. Controversies capable of repetition
2. Issues concerning events of short duration (ex. abortion) 3. Defendant who voluntarily stops the offending practice but is free to resume 4. Class Actions - A class representative may continue to pursue a class action after the controversy has become moot if OTHER class members are still viable. |
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Standing
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1. Injury
2. Causation 3. Redressability |
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Injury
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- Plaintiff must show that she has been or will be directly and personally injured
- Injury doesnt have to be economic |
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Causation
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There must be a causal connection between the injury and the conduct complained of
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Redressability
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A decision in the litigant's favor must be capable of eliminating her grievance
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COMMON STANDING ISSUES
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Congressional Conferral of Standing
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Congress can't give or create standing for someone, they can only create federal statutes that would in effect create standing for someone
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Standing to Enforce Government Statutes
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- Plaintiff must be within the zone of interests Congress meant to protect
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Standing to assert the rights of third parties
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1. Plaintiff must have standing in her own right AND
1) It is difficult for the third party to assert their own rights OR 2) a special relationship exists between the claimant and the third party |
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Standing of Organizations
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1. If there is an injury in fact to members that gives them a right to sue on their own behalf
2. The injury is related to the organization's purpose 3. Individual member participation in the lawsuit is not required |
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No Citizenship Standing
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People have no standing merely as "citizens" to claim that government action violates federal law or the constitution
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Taxpayer Standing Requisites
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No standing to challenge government expenditures
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Exception
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Suits attacking congressional spending measures on FIrst Amendment Establishment Clause grounds
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Adequate and Independent State Grounds
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Supreme Court will NOT exercise jurisdiction over these cases even if federal issues are involved
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Abstention
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1. Unsettled Question of State Law
2. Pending State Proceedings |
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Unsettled Question of State Law
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A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law
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Pending State Proceedings
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Federal courts will not enjoin pending state criminal proceedings except in cases of proven harassment or prosecutions taken in bad faith
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Political Questions
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1. Constitutionally committed to another branch of government OR
2. Inherently incapable of judicial resolution |
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Non-Political Questions
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Examples: Legislative apportionment, arbitrary exclusion of a congressional delegate, and production of presidential papers and communications
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Eleventh Amendment Limits on Federal Courts
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- Federal courts cannot hear a private party's or foreign governments claims against a state government
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What is barred?
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- Prohibits federal courts from hearing a private party's or foreign government's claims against a state government
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What is not barred?
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- Actions against local governments, actions by the United States or other states, or proceedings in Federal Bankruptcy Courts
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EXCEPTIONS where the federal court can still hear the claim
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1) Certain Actions against State Officers
2) If Congress removes the immunity |
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What are the certain actions against state officers that fall under the exception?
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These can be brought against state officers in federal court:
1. Actions to enjoin an officer from future conduct that violates the Constitution or federal all, even if this will require prospective payment from the state 2. Actions for damage against an officer personally |
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LEGISLATIVE POWER
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What is Congress's general power?
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Congress can exercise those powers enumerated in the Constitution plus all auxiliary powers necessary and proper to carry out all powers vested in the federal government
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Can the necessary and proper clause support federal law?
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Not alone. It must work in conjunction with another federal power.
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Taxing Power
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Can tax if:
(1)There is a reasonable relationship to revenue production OR (2) Congress has the power to regulate the activity that is being taxed |
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What can Congress and the sates NEVER tax
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Exports to foreign countries
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Spending Power
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- May spend to provide for the common defense and general welfare
- Can be for any public purpose |
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Commerce Power generally
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- Exclusive power to regulate all foreign and interstate commerce
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Requirements of law regulating commerce
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Must be either to
(1) Regulate the channels of interstate commerce OR (2) Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce OR (3) Regulate activities that have a substantial effect on interstate commerce |
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Intrastate Activity
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When congress tries to regulate this, it must be of economic or commercial activity in which Congress has a rational basis to conclude that activity in the aggregate substantially affects interstate commerce.
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What if the activity is noncommercial and noneconomic
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It cannot be regulated under the Commerce Clause unless Congress can factually show a substantial economic effect on interstate commerce
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War and Regulation Powers
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Congress has power to
1. Declare war 2. Raise and support armies 3. Provide for and maintain a navy |
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Economic Regulation during war and post-war period
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Congress CAN regulate
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Military Courts and Tribunals
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- Congress can make rules for the government and regulation of armed forces
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Judicial Review?
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Regular federal or state courts have no general power to review court-martial proceedings
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Can enemy civilians and soldiers be tried in military court?
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Yes, however Congress has no power to deny habeas corpus review to all aliens detained as enemy combatants
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Who has jurisdiction over American Soldiers?
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Military courts have jurisdiction over ALL offenses committed by citizens who were american soldiers BOTH at the time of the offense AND when charged
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Investigatory Power
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Implied power
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Property Power
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- Congress has the power to dispose of and make rules for territories and properties within the US
- Taking of property must be for the purpose of effectuating an enumerated power under some other provision of the Constitution |
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Federal Police Power
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- Doesn't exist!
- Congress has no general police power - Only has police power over Washington DC, federal lands, military bases, and Indian reservations |
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Bankruptcy Power
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- Nonexclusive power to establish uniform rules for bankruptcy
- States are free to legislate their own rules as long as they don't conflict with the federal law |
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Postal Power
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- Exclusive power
- Under this power Congress can validly classify and place reasonable restrictions on the use of the mails, - But may NOT deprive any citizen or group of citizens of the general mail privilege |
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Power Over Citizenship
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- Congress may establish uniform rules of naturalization
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Exclusion of Aliens
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- Aliens have no right to enter the US and can be refused because of their political beliefs
- However, resident aliens are entitled to notice and a hearing before they are deported |
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Naturalization and Denaturalization
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-Exclusive Power
- However, Congress can't take away the citizenship of any citizen (native born or naturalized) without their consent |
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Admiralty Power
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- Absolute and exclusive
- However, Congress can leave maritime matters to state jurisdiction |
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Power to Coin Money and FIx Weights and Measures
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- Congress has this power
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Patent/ Copyright power
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- Congress has this power
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Delegation of legislative power
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OK if delegated to another branch as long as intelligible standards are set and the power is not uniquely confined to Congress
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Speech and Debate Clause
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- Conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are IMMUNE FROM PROSECUTION
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What is a legislative VETO?
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Congress trying to overturn an executive agency without bicameralism ( passage by both houses of Congress) OR presentment ( having the President sign or veto)
Legislative vetos of executive actions are INVALID |
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THE EXECUTIVE POWER
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Appointment Powers
Who can the President appoint? |
- Ambassadors
- Public Ministers and Consults - Justices of the Supreme Court - All other officers of the US whose appointments are not otherwise provided for MUST CONSULT THE SENATE |
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Who can the President remove?
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- High level executive officers and congress can't interfere
- Congress CAN provide statutory limitations such as removal only for good cause on all other executive appointees |
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Who can Congress remove?
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Executive officers ONLY through impeachment
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What can the President grant pardons for?
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- All federal offenses but not for impeachment or civil contempt
- Power can't be limited by Congress |
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Veto Power
If President vetoes and Act of Congress what does Congress have to do in order to override it? |
2/3 vote of each house
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Pocket Veto
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- President has 10 days to veto
If he fails to veto.... - If Congress is NOT in session--> Automatic veto - If Congress IS in session --> Automatically law |
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Can the President reject part of a bill but not the whole thing?
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NO
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PRESIDENT ACTIONS
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If President acts with the express of implied authority of COngress
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Authority is at its max, actions likely valid
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If President acts where Congress is silent
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Upheld unless it usurps another power of another governmental branch or prevents another branch from carrying out its tasks
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Can the President declare war?
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No, but he CAN act militarily in hostilities against the US without the approval of Congress
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Foreign relations
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Paramount power to represent the US in day to day foreign relations
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Treaty power
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- Can enter into treaties withe 2/3 consent of the Senate
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Supreme Law
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- Treaties are supreme law of the land, they are self executing
- State laws that conflict are invalid |
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What happens if there is a conflict between a congressional act and a valid treaty?
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The last in time prevails
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Can a treaty be inconsistent with the Constitution?
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NO
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What are executive agreements?
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- Agreements signed by the president and the head of a foreign country
- Used for any purpose that a treaty can be used for - Do not need Senate Consent |
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What if the agreement conflicts with state laws?
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Agreement wins
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What if the agreement conflicts with Federal Laws?
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Federal law wins
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Can the President keep communications secret?
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Yes, however in criminal proceedings, presidential communications will be available to the prosecution if necessary
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What about the President and civil liability?
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- Has absolute immunity from civil damages based on any action he took within his official responsibilities
- NO immunity for acts that occurred before taking office |
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What is required to impeach the President, Vice President, and all civil officers of the US
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- Treason, bribery, high crimes, or a misdemeanor
- Majority of the House--> Impeachment - 2/3 of Senate --> Conviction and removal from office |
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THE FEDERAL SYSTEM
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What powers do the states have?
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All other powers not delegated to the federal government
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When does an issue of preemption arise?
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- Valid federal statute or regulation expressly or impliedly occupies a field which would preclude and state or local government regulation.
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Express Preemption
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- Congress can state that its power is exclusive when it has the authority to act in a filed
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Three ways implied preemption is found
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1. If it is not possible for someone to simultaniously comply with both federal and state laws, state law--> preempted
2. If a state law impedes the achievement of a federal objective--> preempted 3. If Congress evidences a clear intent to preempt state law--> preempted |
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Can the state charge state tax to be paid out of the federal treasury?
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NO
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Dormant Commerce Clause
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- State or local laws are unconstitutional if they place an undue burden on interstate commerce
- Burden must outweigh the benefits to violate the clause |
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Privileges or immunities clause of the 14th Amendment
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Preserves a person's right to travel from one state to another
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Exception to violations of the Dormant Commerce Clause
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- If the law is necessary to achieve an important government purpose and the government must show that no less discriminatory purpose can achieve the goal
- If Congress approves it - Market Participant Exception |
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Market Participant Exception
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A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses
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Exceptions to violating the Privileges or Immunities Clause
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If it is necessary to achieve an important government purpose
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CONSTITUTION AND PROTECTION OF INDIVIDUAL LIBERTIES
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Does the Constitution apply to private conduct?
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NO, only to government/ state action
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When can Congress apply constitutional norms to private conduct?
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Through Statute
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How does Congress prohibit private race discrimination?
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Pursuant to the 13th Amendment which prohibits slavery and involuntary servitude. Broad power to adopt laws to enforce this
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How was Congress able to adopt the Civil Rights Act of 1964?
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Pursuant to the Commerce Clause
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Entanglement Exception
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Constitution applies if the government affirmatively authorizes, encourages, or facilities unconstitutional activity
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Who does the Bill of Rights directly apply to?
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The Federal Government
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How is the bill or rights applied to state and local governments?
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Through its incorporation into the due process clause of the 14th Amendment
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Exceptions
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- 3rd Amendment right to not have a soldier quarted in home
- 5th Amendment right to grand jury indictment in criminal cases - 7th Amendment right to jury trials in civil cases - 8th Amendment right against excessive fines |
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RATIONAL BASIS TEST
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Law is upheld if it is rationally related to a legitimate government purpose.
-Challenger has the burden or proof to show either that there is no conceivable legitimate purpose OR that the law is not rationally related to it |
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IMMEDIATE SCRUTINY
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Law is upheld if it is substantially related to an important government purpose.
- Government has the burden of proof |
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STRICT SCRUTINY
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Law is upheld if the law is necessary to achieve a compelling government purpose
- Government has the burden of proof |
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INDIVIDUAL LIBERTIES
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Proceedural Due Process
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The procedures a government must follow to take away someone's life, liberty, or property.
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Two questions to determine if there has been a violation
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1. Has there been a deprivation of life, liberty, or property?
2. If there has been a deprivation, what procedures are required? |
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Is government negligence sufficient for a deprivation of due process?
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Generally there must be intentional government action or at least reckless action
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Exception
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In emergency situations the government is liable under due process only if its conduct shocks the conscious
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3 part balancing test for what procedures are required
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1. The importance of the interest to the individual
2. The ability of additional procedures to increase the accuracy of fact-finding 3. The government's interests (usually efficiency and saving $) |
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Welfare benefits termination requires
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Notice and a hearing
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Permanent termination of parent's right to custody
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Notice and a hearing
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Except in an emergency before an adult can be institutionalized
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Notice and a hearing
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Social security benefits termination
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Only a post termination hearing
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Harm to reputation, by itself
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NOT A LOSS OF LIBERTY
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Do prisoners have liberty interests?
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Very rarely
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Punitive damages awards requires
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Jury instructions to guide discretion and judicial review to ensure that any award is reasonable
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A non-citizen held as an enemy combatant is entitled to
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Due process which means the ability to challenge their continued detention
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US Citizens facing criminal charges in a foreign country held by the AMerican Military can file
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A habeous corpus petition seeking review of their detention in federal court
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Substantive Due Process
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- Used to protect economic liberties and safeguarding property
- Asks whether the government has an adequate reason for taking away a person's life, liberty, or property |
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What test is used for protection of economic liberties?
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Rational Basis test
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When can the government take private property for public use?
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Only if it provides just compensation or terminates the regulation and pays the owner damages
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To determine if there has been a "taking" by the government
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2 Kinds of taking:
1. Possessory taking- Government confiscation or physical occupation of property 2. Regulatory taking- Government regulation is a taking if it leaves no reasonable economically viable use of the property. |
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What must the government conditions on the development of property be justified by
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A benefit that is roughly proportionate to the burden imposed
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Is temporarily denying an owner of property a taking?
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No, so long as the government's action is reasonable
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How do we determine if it is reasonable?
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1. Is it for public use- Acts out of a reasonable belief that the taking will benefit the public
2. Just compensation is measured in terms of loss to the owner in reasonable market value terms |
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Contracts Clause
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No state shall impair the obligations of contracts
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4 provisions of the Contracts Clause
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1. Only applies to state or local interference with already existing contracts
2. May interfere with existing contracts if immediate scrutiny is met ( Does the legislation substantially impair a party's rights under and existing contract? If so, is the law reasonably and narrowly tailored means of promoting an important and legitimate public interest?) |
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State or local interference with government contracts must meet what level of scrutiny?
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Strict scrutiny
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Ex post factos laws
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Federal or state governments cant adopt ex post factos laws in criminal cases
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Right to privacy
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- Fundamental right protected under substantitve due process
- Strict Scrutiny |
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Rights that require strict scrutiny
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- marry
- procreate - custody of one's children--> can only be terminated if it proves a compelling reason such as parental abuse or neglect - keep the family together - control upbringing of children - purchase contraceptives |
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Right to abortion
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- Prior to viability states cannot prohibit abortions but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions
- After viability may prohibit unless necessary to protect the mother's health - Spousal consent and notification laws are unconstitutional |
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Does the right to privacy protect the right to engage in private consensual same sex activity?
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Yes
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The right to refuse medical treatment
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- No level of scrutiny
- Competent adults can refuse medical treatement, even life-saving treatment - A state has a compelling interest in protecting the sanctity of life and so may require clear and convincing evidence that a person wanted treatment terminated before it is ended - A state MAY prevent family members from terminating treatment for another |
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Is there a Constitutional right to physician assisted suicide?
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NO
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Right to bear arms
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Individuals have a right to have weapons for self-defense, but has NOT specified the level of scrutiny to be used
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Laws the prevent people from moving into a state must meet
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strict scrutiny
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Durational residence requirements (requiring a person to live in a jurisdiction for a specified amount of time to get a benefit) must meet
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Strict scrutiny
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Is there a fundamental right to international travel?
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No, so it only needs the rational basis test
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The right to vote
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- Fundamental right
- Strict Scrutiny - One-person-one-vote must be met for all state and local elections - Use of race in drawing election district lines must meet strict scrutiny |
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Right to Education
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- Not a fundamental right
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Equal Protection
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- Whenever the government draws a distinction among people there is a basis for an equal protection challenge
- Applies to state and local governments, not federal - Equal protection is applied to federal government through due process clause of 5th amendment |
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3 Steps in Equal Protection questions
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1. What is the classification?
2. What level of scrutiny should be applied? 3. Does this law meet the level of scrutiny? |
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Classifications based on race, alienage, and national origin must meet what level of scrutiny?
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- Strict scrutiny
Happens in 2 ways 1. Classification exists on the face of the law 2. Discriminatory impact AND discriminatory intent |
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How should racial classifications that BENEFIT minorities be treated?
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- Strict scrutiny
- Numerical set-asides require clear proof of past discrimination - Educational institutions may use race as ONE factor in admissions decisions to benefit minorities and enhance diversity |
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What level of scrutiny is applied in gender classifications?
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- Intermediate scrutiny, only allowed if an exceedingly persuasive justification
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How is the existence of a gender classification proven?
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1. Classification exists on the face of the law
2. Discriminatory impact and discriminatory intent |
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Special rules for how courts treat gender classifications benefiting women
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- Can't be based on role stereotypes
- Allowed if they are designed to remedy past discrimination or differences |
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Alienage Classifications against non-citizens require what level of scrutiny?
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Strict Scrutiny
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What privileges CAN be reserved just for citizens
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- Voting
- Serving on a jury - Being a police officer, teacher or probation officer |
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What level of scrutiny for discrimination against aliens?
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Rational basis test
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Discrimination against non-marital children requires what level of scrutiny?
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Immediate scrutiny
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Age discrimination
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Rational basis
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Disability discrimination
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Rational basis
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Wealth discrimination
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Rational basis
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Government economic regulations
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Rational basis
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Sexual orientation discrimination
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Rational basis
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THE FIRST AMENDMENT
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A regulation seeking to forbid communication of specific ideas is LESS likely to be upheld than
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A regulation of CONDUCT incidental to speech
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Content- based restrictions
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- Strict scrutiny
1. Subject matter restriction 2. Viewpoint restriction |
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Content-neutral laws
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- Intermediate scrutiny
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In order to stop a speech before it occurs courts must follow what level of scrutiny?
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Strict scrutiny
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If there is a procedurally proper court order how long must it be complied with?
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Until it is vacated or overturned
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What happens if you violate the court order?
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You are barred from later challenging it
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Can there be Gag Orders on the press to prevent pre-trial publicity?
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NO
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When can the government require a license for speech?
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If there is an important reason for licensing and clear criteria leaving almost no discretion to licensing authority.
Must be procedural safeguards such as prompt determination of requests for licenses and judicial review of license denials. |
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Vagueness of a law
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Unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed
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Over breadth
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Unconstitutionally over broad if it regulates substantially more speech than the constitution allows to be regulated
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Fighting words
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Not protected speech, but statutes attempting to punish the use of such words are often found to be void for vagueness
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Symbolic speech
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May regulate conduct that communicates if it has an important interest unrelated to suppression of the message AND if the impact on communication is no greater than necessary to achieve the government's goal
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Flag burning
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Protected speech
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Draft Card Burning
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Not protected speech
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Nude Dancing
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Not protected speech
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Burning a cross
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Protected unless done to threaten or intimidate
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Contribution Limits in Election Campaigns
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Allowed
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Expenditure limits in Campaigns
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Not allowed
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Anonymous Speech
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Protected
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Can speech by the government be challenged as violating the First Amendment?
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No, as long as it is rationally related to a legitimate state purpose.
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What types of speech are unprotected or less protected by the First Amendment
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1. Incitement of illegal activity
2. Obscenity and sexually oriented speech 3. Commercial Speech 4. Defamation 5. Privacy 6. Speech by government employees |
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Incitement of illegal activity
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Government may punish speech if there is a substantial likelihood of imminent illegal activity AND if the speech is directed to causing imminent illegality
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Test for Obscenity and sexually-oriented speech
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1. The material must appeal to the puriant interest, or a shameful or morbid interest in sex
2. The material must be patently offensive under the law prohibiting obscenity 3. Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value as determined by a national standard |
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Can the government use zoning ordianances to regulate the number or location of adult bookstores and movie theaters?
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YES
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Can child pornography be completely banned?
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YES, even if it is not obscene.
In order to be child pornography, children MUST be used in production of the material |
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Can the government punish private possession of obscene materials?
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No
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Can the government punish private possession of child porn?
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Yes
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Can the government seize the assets of businesses who violate obscenity laws?
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Yes
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Is profane or indecent speech protected by the First Amendment?
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Generally yes, except in 2 situations
1. Free, over the air broadcast media 2. In schools |
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Is advertising for illegal activity or false or deceptive ads protected by the First Amendment?
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NO
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What about true commercial speech that inherently risks deception?
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MAY be prohibited
- States may prevent professionals from advertising or practicing under a trade name - States may prohibit attorney, in-person solicitation of clients for profit |
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Can the government prohibit accountants from in-person solicitation of clients for profit?
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NO
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In general, what level of scrutiny must other commercial speech meet?
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Intermediate scrutiny
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Government regulation of commercial speech must be
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narrowly tailored, but it does not need to be the least restrictive alternative
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TO RECOVER IN DEFAMATION
If plaintiff is a public official |
- Clear and convincing evidence of the falsity of the statement AND actual malice
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TO RECOVER IN DEFAMATION
If plaintiff is a public figure |
- Falsity of statement and actual malice
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TO RECOVER IN DEFAMATION
If plaintiff is a private figure and matter is of public concern |
Compensatory damages
- Falsity of statement and negligence by the defendant Presumed of Punitive damages - Actual malice |
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TO RECOVER IN DEFAMATION
If plaintiff is a private figure and the matter is NOT of public concern |
- Can recover presumed or punitive damages WITHOUT proving actual malice
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Can a state create liability for the truthful reporting of information that was legally obtained from the government's records?
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NO
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Can the media be held liable for broadcasting a tape of an illegally intercepted and recorded call?
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NO, so long as the media did not participate in the illegality and it involves a matter of public importance
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Speech by government employees on the job
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Not protected
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What places are available for speech?
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1. Public Forums
2. Designated public forums 3. Limited public forums 4. Non-public forums |
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Public Forums
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Government properties that the government is constitutionally required to make available for speech
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Requirements of regulations in Public Forums
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1. Must be subject matter and viewpoint neutral (otherwise need strict scrutiny)
2. Must be a time, place, or manner that serves an important government purpose and leaves open adequate alternative places for communication 3. Needs not use the less restrictive alternative 4. Permit fee requirements for parages or demonstrations are unconstitutional if city officials have discretion in setting the amount of the fee |
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Designated Public Forums
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Government properties that the government COULD close off to speech but chooses voluntarily to open to speech
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Limited Public Forums
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Government properties that are limited to certain groups or dedicated to the discussion of only some subjects
- Government can regulate as long as regulation is reasonable and viewpoint neutral |
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Non-Public Forums
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- Government properties where the government can and does close off speech.
- Regulation must be reasonable and viewpoint neutral ex: Military base Schools Sidewalks outside the post office Airports (however u can distribute literature) |
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Is there a first amendment right to access of private property for speech purposes?
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NO
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FREEDOM OF ASSOCIATION
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Laws that prohibit or punish group membership must meet
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strict scrutiny
To punish membership in a group it must be proven that the person: 1. Is actively affiliated with the group 2. Has knowledge of the group's illegal activities; AND 3. Has specific intent of furthering those legal activities or objectives |
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Laws that require disclose of group membership where such disclosure would chill association must meet
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Strict Scrutiny
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Does the Freedom of Association protect a right to discriminate?
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NO, unless discrimination is integral to the expressive activities of the group
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FREEDOM OF RELIGION
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The Free Exercise Clause
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- Cannot be used to challenge a neutral law of general applicability
- May not deny benefits to individuals who quit their jobs for religious reasons |
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The Establishment Clause 3 part test
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1. Must be a secular purpose
2. Primary effect must be neither to advance nor inhibit religion 3. There must not be excessive government entanglement with religion |
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What level of scrutiny is required to discriminate against religious speech or against religion
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Strict scrutiny
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Is government sponsored activity in public schools constitutional?
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NO, but religious groups must have the same access to school facilities as non-relgious groups.
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Is school prayer, even if voluntary allowed?
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NO, not even a moment of silent prayer
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Can the government give assistance to perocial schools?
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Yes, so long as it is not used for religious instruction
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