Con Law Ii Name Cases

Front 1

Lemon v Kurtzman

Back 1

Lemon test

1. A secular purpose
2. Primary or principle effect to advance religion
3. No excessive entanglement

Lemon test provided the long-standing (1971) tool in the analysis of financial establishment clause cases. Later modified to be the Lemon Twist or Endorsement test in Lynch v Donnelly (O'Connor concurring)

Hint 1

1971

Striking down program supplementing salaries for teachers of secular subjects in private schools

Front 2

Employment Division v Smith

Back 2

Generally applicable law that only incidentally affects religion is not infringement of establishment clause.

Exceptions to the rule are unemployment case and cases where other constitutional rights are also involved such as freedom of speech. RFRA was an attempt to overrule the case

Hint 2

1990

Native American drug counselors fired for taking drugs cannot receive unemployment benefits because the religious drug use violates a criminal law that has no religious exemption

Front 3

Citzens United v FEC

Back 3

The government may not suppress political speech on the basis of the speaker's corporate identity

Hint 3

2010

Corporations have the same protection for freedom of speech as individuals as to campaign financing. The limit on campaign expenditures for corporations was found unconstitutional.

Front 4

Buckley v Valeo

Back 4

Expenditures in political campaigns are protected speech which require the highest scrutiny. Campaign contributions require a less demanding standard of review

Hint 4

$1000 limit on campaign expenditures is not narrowly tailored sufficient to justify the restriction on political speech. The same limit on candidate contributions is permitted because it is indirect speech and the act of donating any amount is the speech rather than the quantity.

McCutchen v FEC found the $25,000 aggregate limit to also violate the constitution

Front 5

United States v O'Brien

Back 5

O'Brien Test for Expressive Conduct

1. Law must be within the Constitutional Power of Government
2. Important Government Interest
3. Government Interest unrelated to restricting expression
a. Effect on expression is incidental
4. Narrowly tailored

Hint 5

Conviction of man burning draft card in protect and violation of law is upheld. Not all expressive activity will be treated as speech.

Front 6

Cohen v California

Back 6

1. Printed speech is speech and doesn’t lose protection because it is offensive

2. The way you speak, the choice of the words, are as important as the content
a. The content and language can’t be separated.

Hint 6

Cohen disturbs the peace by offensive conduct (wearing a jacket that said “F$ck the Draft”). Criminal conviction is overturned

Front 7

Miller v California

Back 7

Miller Test for Obscenity

1. Work, taken as a whole, appeals to the prurient (incessant interest in sexual matters) interest.
2. Depicts sexual conduct in a patently offensive manner
3. Taken as a whole, work has no serious literary, scientific, artistic, political value.

Hint 7

Accommodation between the state's interests in protecting the sensibilities of unwilling recipients from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws.

Front 8

New York Times v Sullivan

Back 8

False Speech For Public Officials and Public Figures

1. Actual Malice
2. Named Person
3. Clear and Convincing Evidence
4. Appellate review of the facts

Hint 8

Neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct.

Front 9

Central Hudson Gas v Public Service Comm'n

Back 9

Central Hudson Test for Commercial Speech
1. Legal speech
2. Substantial Government interest
3. Does the regulation directly advance the interest asserted
4. Closely tailored

Hint 9

Public utility wants to advertise air conditioners. Regulation banning such advertising is overturned

Front 10

Chaplinsky v New Hampshire

Back 10

Fighting words: speech is not protected by the 1st Amendment if a person of ordinary understanding would expect it to lead to immediate violence if made face-to-face to a person

Stricter standard now controls that excludes many words said to police. Other non-fighting words like lewd and obscene, profane and libelous, are more narrowly defined (obscene) or protected

Hint 10

Jehovah's witness called the Marshall a damned fascist and is arrested. The law restricting fighting words is upheld.

Front 11

Brandenburg v Ohio

Back 11

Brandenburg Test for Incitement
1. Intent to incite or produce imminent lawless action
2. Likely to incite or produce such action

Hint 11

Striking down a law that prohibited advocating criminal syndicalism when a KKK member was not likely to incite the violence he advocated

Front 12

West Virginia State Board of Education v Barnette

Back 12

The government cannot compel belief

Principles have been consistently followed, particularly in the context of religious belief.

Hint 12

Striking down school board's resolution punishing students who refused to salute the flag

Front 13

Schenck v United States

Back 13

Schenck test for incitement
1. Substantive evil that congress has a right to protect
2. Clear and present danger being caused by the speech

Hint 13

Leaflets against the draft encourage people to dodge the draft in protest. They are charged with violating the Espionage Act of 1917. Upheld. Leaflets were not protected speech

Front 14

Lawrence v Texas

Back 14

The right of adults to engage in private consensual sexual activity is a liberty protected by the Due Process Clause

Hint 14

Striking down Texas law prohibiting homosexual sodomy as unsustained by a legitimate state interest that can justify its intrusion into the personal and private life of the individual

Front 15

Bowers v Hardwick

Back 15

Police power includes the power to regulate morals of the community. It does not require a compelling interest, just a legitimate one (rational relationship)

Fundamental right test: fundamental liberties that are implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed or those liberties that are deeply rooted in the nation’s history or tradition.

Hint 15

Upholding law against sodomy using a rational basis test.

Front 16

Planned Parenthood of Southeastern Pennsylvania v Casey

Back 16

Abortion rule:

• Woman's right to have an abortion pre-viability without undue interference by the state
• State may regulate abortion post viability.

Stare Decisis rule:
1. Rule has proven to be unworkable
2. Rule subject to the kind of reliance that would lend a special hardship to the consequences of overruling and add inequity
3. Is the rule a doctrinal anachronism
4. Have facts changed so much to rob the rule of significant application or justification

Hint 16

Upholds central meaning of Roe: Protects abortion right from undue burdens pre-viability. 24 hour waiting period is not undue, spousal notification is

Front 17

Roe v Wade

Back 17

As a fundamental right, abortion is subject to strict scrutiny

Modified by Casey saying abortion receives an undue burden analysis

Hint 17

Abortion is fundamental right because it is within the realm of privacy and imposes harm on the woman

Front 18

Griswold v Connecticut

Back 18

The Bill of Rights casts shadows of rights that should still be protected. All of the rights cast the Penumbra of Privacy. The right of privacy includes the right to use contraceptives.

Hint 18

Strikes down Connecticut law criminalizing assisting or advising people how to use contraception as a violation of the penumbra of privacy cast by the constitution

Front 19

Nebbia v New York

Back 19

A state is free to adopt whatever economic police that reasonably promotes the public welfare. Reasonable relation is presumed unless the law is arbitrary, discriminatory or demonstrably irrelevant (End of Lochner era)

Hint 19

Upholds law controlling the minimum price of milk because there is a reasonable relationship with the purpose to promote the public welfare.

Front 20

Lochner v New York

Back 20

Strict scrutiny for laws that attempt to regulate the freedom of contract--important gov't interest, direct relationship to purpose, narrowly tailored

Hint 20

Health law restricting the hours a baker can work is struck down because it was an unreasonable, unnecessary and arbitrary interference with the freedom of contract

Front 21

Slaughter-House Cases

Back 21

The privileges and immunities clause of the 14th amendment protects only federal rights

Deference to the state for economic policy reversed by Lochner, reaffirmed in Nebbia

Hint 21

Upholds LA law granting monopoly for slaughter houses in New Orleans because the privileges and immunities clause of the 14th amendment protects federal rights of which being a butcher is not one.

Front 22

Plessy v Ferguson

Back 22

Separate but Equal Doctrine:
Equality of treatment is accorded when the races are provided substantially equal facilities even though these facilities be separate

Hint 22

Upholds LA law providing for separate railway carriage for white and colored races

Front 23

Brown v Board of Education

Back 23

Separate but equal is per se unequal in the field of education.

Domino effect on laws that segregate in areas other than education.

Hint 23

Striking down laws from several states that segregate public schools because separate is inherently unequal in education

Front 24

Washington v Davis

Back 24

Disparate Impact
1. Disproportionate Impact
2. Discriminatory Purpose

Hint 24

Police Department test had a disparate impact on African Americans. Court upheld the test because defendants failed to prove a discriminatory purpose.

Front 25

Korematsu v United States

Back 25

Curtailing the rights of a single racial group is immediately suspect and must be subject to the most rigid scrutiny

Hint 25

Upheld statute authorizing the detention of Japanese American sympathizers

Front 26

Regents of the university of California v Bakke

Back 26

Race can be considered in a properly devised admissions program, but the state must demonstrate the classification is necessary to promote a substantial state interest

Hint 26

Remands case in which white man is rejected from admission and not given one of the spots reserved for minorities who scored lower than he did.

Front 27

Grutter v Bollinger &

Gratz v Bollinger

Back 27

Diversity in education must not be focused on race alone but encompass all factors that may contribute to a diverse student body.

Hint 27

Grutter: Court upheld Uof Michigan law school's affirmative action program which involved individual consideration of each applicant but ensured a "critical mass" of minority students were admitted

Gratz: Court strikes down U of Michigan's undergraduate affirmative action program because it used a numerical criteria rather than individualized consideration to compare applicants

Front 28

United States v Windsor

Back 28

No legitimate government purpose overcomes the purpose and effect to disparage and injure those whom the State by its marriage laws, sought to protect in personhood and diginity

Hint 28

Court upholds widow's challenge to DOMA preventing her from estate tax exemption for same sex marriage.

Front 29

Reynolds v Sims

Back 29

The right to vote is a fundamental right.

The Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.

Hint 29

Alabama had not updated districting based on population. Court held that as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.