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132 Cards in this Set

  • Front
  • Back
Justiciability Requirements / Requirement for cases and controversies (Art 3)
1. Standing
2. Ripeness
3. Mootness
STANDING
1. Standing - whether P is the proper party to bring a matter to the court for adjudication

a) INJURY - has been or imminently will be injurred. Only injuries P has personally suffered or P must show a likelihood of future harm for injunctive or declatory relief

b) CASUATION and REDRESSABILITY - P must show D caused the injury and a favorable court decision would remedy the injury

c) NO 3D PARTY STANDING
3 exceptions:
-if there is a close relationship between P and injurred
-injurred party is unlikely to be able to assert her own rights
-organization may sue for its members if indv. members would have standing, it's germane to org's purpose, claim & relief don't require participation of indv. members

d) NO GENERALIZED GRIEVANCES
Exception: taxpayers have standing to challenge gov. expenditures as pursuant to federal statutes as violating teh Establishment Clause
RIPENESS
Whether a federal court may grant pre-enforcement review of a statute or regulation.
1) the hardship that will be suffered w/out preenforcement review (greater hardship = court more likely to allow)
2. The fitness of the issues and record for judicial review.
MOOTNESS
If events after the filing of suit end P's injury, the case must be dismissed as moot.
Exceptions:
1. wrong capable of repetition but evading review
2. voluntary cessation of the harm but can resume against at any time
3. class action suits won't be dismissed as moot as long as 1 member of class has an ongoing injury
POLITICAL QUESTION DOCTRINE
Constitutional questions the court won't ajudicate:
1. Republican form of government clause.
2. Challenges to the President's conduct of foreign policy.
3. Challenges to the impeachment and removal process.
4. Challenges to partisan gerrymandering.
When will SUPREME COURT REVIEW?
writ of certiorari (need 4 votes for a writ to be granted)
1. all cases from state courts
2. all cases from U.S. courts of appeals

Scotus req'd to take cases appealed where statute requires the case be heard by a 3 judge federal district court

Original jurisdiction: all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party - however, Congress has given concurrent jurisdiction to all lower federal courts in all these cases except cases between states.
Independent State Law Source?
Scotus will not review a state court decision if there is an independent and adequate state law ground for the decision
May federal courts and state courts hear suits against state governments?
No -

The 11th Amend bars suits against states in federal court.

Sovereign immunity bars suits against states in state courts or federal agencies.
Exceptions:
1. waiver by state
2. if Congress authorizes under Section 5 of the 14th Amend
3. Fed gov may sue state governements
4. BR proceedings

*Suits against state officers are allowed (for injunctive relief, or for $ damages to be paid out of their own pockets). State officers may not be sued if it si the state treasury that will be paying retroactive damages.
Abstention - may federal courts enjoin pending state court proceedings?
No.
When does Congress have authority to Act?
When it has express or implied Congressional power.
Federal Police Power?
None except for legislating Military, Indian Reservations, Federal Lands & Territories, D.C.
Necessary and proper clause?
Congress may use any means as long as it is not prohibited by the Constitution. Congressional bake sale to fund the military is okay.
Taxing and Spending Power
Commerce Power - what areas can Congress regulate?
Congress may tax and spend for the general wellfare.

Congress may regulate commerce in 3 areas:
1. channels of interstate commerce (roads)
2. instrumentalities of state commerce and persons or things in interstate commerce
3. economic activities that have a substantial effect on interstate commerce
*can't regulate non-economic activity based on a cumulative impact on interestate commerce
*can regulate wheat a farmer grows for home use
10th Amend
Congress can't compel state regulatory or legislative action.
Congress may prohibit harmful commercial activity by state governments.
Congress' power to enforce the 14th Amend (Sec 5 of 14th Amend)
Congress may not create new rights or expand the scope of rights. It may only prevent or remedy violations of rights recognized by the courts and such laws must be proportionate and congruent to remedying constitutional violations.
Congress' Delegation of Power
Vetoes?
Executive Powers?
No limits on Congress' ability to delegate legislative power.

Legislative vetoes and line-item vetos are unconstitutional. President must sign or veto a bill in its entirety.

Congress may not delegate executive power to itself or its officers.
Federal Executive Power - Foreign Policy: treaties?
Treaties are negotiated by teh President and are effective when ratified by the Senate.

Treaty v. State law = treaty

Treaty v. Fed Stat: one adopted last in time wins

Treaty v. Constitution = Constitution wins
Federal Executive Power - Executive Agreements
An agreement between the US and a foreign country that is effective when signed by the President and the head of a foreign nation.

Can be used for any purpose.

Prevail over conflicting state laws; lose to conflicting federal laws and constitution.
Federal Executive Power - Appointment and Removal Power
1. President appoints ambassadors, fed. judges, and officers of the US
2. Congress may vest the appt of inferior officers in the President, heads of depts, or the lower federal cts.
3. Congress may not give itself or its officers the appt power

Unless limited by statute, President has power to remove any executive branch officer

Congress may limit removal power if:
1. office where ind. from the president is desirable AND
2. can only limit removal to when there is good cause
Impeachment and Removal of the President, VP, federal judges and officers of the US
treason, bribery, high crimes and misdemeanors

Impeachment does not remove a person from office

Need a majority in the House and 2/3 of Senate
Presidential Immunity from suit?
President has absolute immunity to civil suits for $ daages for actions while in office (but not prior to taking office)
Executive Privilage?
presidential papers and conversations, but such privilage must yield to other important government interests
Pardon Power?
President can pardon those accused or convicted of FEDERAL crimes

does not apply to civil contempt
Federalism - Preemption
Supremacy Clause (Art VI) provides that the Constitution and laws and treaties made pursuant to it are the supreme law of the land.

Express preemption: if a federal law says a federal statute is exclusive in a field

Implied preemption:
1. if fed. and state laws are mutually exclusive, then fed. law preempts state law.

2. if state law impedes the achievement of a federal objective, federal law preempts state law

3. if Congress evidences a clear intent to preempt state law, federal law preempts state law.
May states tax or regulate federal government activity? Why?
No - inter-governmental immunity
Dormant Commerce Clause

the Privilages and Immunities Clause of Art IV

the Privilages and Immunities Clause of 14th Amend
Dormant Commerce Clause = negative implications of the commerce clause -a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce

Prilages and immunities clause of Art IV = no state may deprive citizens of other states of the privilages and immunities it affords its own citizens

Priv. and Immun. of 14th Amend only has to do with the right to travel
A state law that does not discriminate against out of staters, but does burden interstate commerce?
1. privilages and immunities clause of Art IV does not apply

2. Violates the dormant commerce clause if burdens exceed its benefits.
A state law that discriminates against out of staters, but also burdens interstate commerce?
A) Violates the dormant commerce clause unless it is necessary to achieve an important government purpose. Exceptions:
1. congressional approval
2. market participation exception: state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses

B) If the law discriminates against out of staters w/ regard to their ability to earn their livelihood, it violates the privilages and immunities clause of Art IV unless it is necessary to achieve an important government purpose
1. discrimination must be w/ regard to civil liberties or important economic activities
2. corporations and aliens can't use the privilages and immunities clause
State taxation of interstate commerce.
States may not use their tax systems to help in state businesses.

A state may only tax activities if there is a substantial nexus to the state; taxation of interstate businesses must be fairly apportioned
Full Faith and Credit Clause
Courts in one state must give full faith and credit to judgments of courts in another state, so long as:
1. subj. matter and personal jurisdiction were property
2. judgement was on the merits
3. judgment was final
Individual liberties: Government actor required?
Constitution only protects from government actors

Congress, by statute, may apply constitutional norms to private conduct

Except: 13th Amendment does apply to private conduct and can be used to prohibit private race discrimination
Note: discrimination doesn't violate the 13th Amendment by itself (slavery does) btu it can violate federal statutes adopted under teh 13th amendment

Commerce Power can be used to apply constitutional normas to private conduct
Situations where private conduct must comply with the constitution?
Public function exception - where private entity is performing a task traditionally exclusively done by the government (straw pole in texas that was primary)

*course can't enforce racially restrictive conenants
*no state action when gov leases premises to a restaurant that racially discriminates
*state action where books provided to schools that racially discriminate
*no state action when a private school that is over 99% funded by the government fires a teacher because of her speech (no encouraging of discrimination)
*no state action when the NCAA orders the suspension of a basektball coach at a state university
*state action when a private entity regulates interscholastic sports w/in states
*no state action when a private club with a liquor license from state racially discriminates
Incorporation of the Bill of Rights?
applied to state and local governments through its incorporation intot he due process clause of the 14th Amendment.
All except: 2nd Amendment, 3rd Amendment right not to have a soldier quartered in a person's home, 5th Amend right to a grand jury indictment, 7th amendment right to jury trial in civil cases, 8th Amend right against excessive fines
Levels of Scrutiny for individual rights cases?
Rational Basis
Intermediate Scrutiny
Strict Scrutiny
Rational Basis Test
A law will be upheld if it is "rationally related to a legitimate government purpose."

(the legitimate purpose need not have been the actual purpose, P bears burden of proof)
Intermediate Scrutiny
Law will be upheld if it is "substantially related to an important government purpose."

(ct looks at gov's actual purpose and means must be narrowly tailored - a very good way of accomp., gov has burden of proof)
Strict Scrutiny
Law will be upheld if it is "necessary to achieve a compelling government purpose."

(means must be narrowly tailored and necessary, gov has burden of proof and usually loses)
Procedural Due Process v. Substantive Due Process v. Equal Protection?
Procedural: the procedures the government must follow when it takes away a person's life, liberty, or property

Substantive: is there adequate justification for the government taking away a person's life liberty and property?

Equal Protection: How people are treated relative to one another.
Steps of the Procedural Due Process analysis?
1. Has there been a deprivation of life, liberty, or property?
a) liberty deprivation = loss of significant freedom provided by the Constitution or a statute (like being institutionalized)
b) Property deprivation = occurs if there is an entitlement and that entitlement is not fulfilled (the reasonable expectation of the continued receipt of a benefit)
*usually requires intentional or at least reckless gov action for liability to exist; in emergency situations only if gov action shocks the conscious
*failure to protect people from privately inflicted harms does not deny due process

2. What procedures are required? Balancing test:
a) importance of the interest to the invidiual
b) ability of additional procedures to increase the accuracy of the fact-finding
c)government's interests
Examples of Procedural Due Process required procedures?
Notice & Hearing req'd for a person's wellfare benefits to be terminated

Termination of SS Disability only requires a hearing afterwards

Student disciplined by pub school - there must be notice of the charges and an opportunity to explain (no hearing reqd)

No due process req'd for spanking in school

Notice and hearing required for termination of parental rights

Punitive damage award requires instruction to jury and judicial review; grossly excessive punitive damages violate due process

American citizen detained as an enemy combatent is entitled to due process

Except in exigent circumstances, pre judgement attachment or gov seizure of assets must be preceded by notice and a hearing
Claims against laws effecting economic liberties?
only a rational basis test is used for laws affecting economic rights; minimal protection for economic liberties
What procedures must the government apply to meet procedural due process?
A fair process (NOTICE AND A HEARING) is required for a gov agency to individually take a person's life liberty or property. Only intentional, not negligentdeprivation of these rights violated the due process clause.

Balancing Test
1. the importance of interest to the individual
2. ability of additional procedures to increase the accuracy of the fact finding and
3. the government's interests in fiscal and administrative efficiency
When may the governmentn take under the Takings Clause?
5th Amendmend

The government may take private property for public use if it provides just compensation.
Takings Clause Analysis?
Ct. does not use usual levels of scrutiny. Instead:

1. Is there a taking?
a) possessory taking - Gov confiscation or physicla occupation of property is always a taking
b) regulatory taking - Gov regulation is a taking if it leaves no reasonable economically viable use of the property

2. Is it for public use?
so long as gov acts out of a reasonable belief it will benefit the public

3. Is just compensation paid?
measure in terms of the loss to the owner (based on market), regardless of value/benefit to the government.
Is a reduction is value of property a violation of the Takings Claues?
No. It must be a total loss of any economically viable use to be a regulatory taking.
Government conditions on development and the Takings Clause?
Must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking. Condition on development is not a regulatory taking if the benefit to the government outweights the burden to the landowner.
May a property owner bring a takings challenge to regulatinos that existed at the time the property was acquired?
Yes, even if they knew the regulations existed at the time they purchased the property.
If the government denies an owner use of property temporarily is it a violation of the takings clause?
No, as long as the government's actions are reasonable. A 3 year moratorium on development for environmental reasons is not a taking.
Contracts Clause - Article 1, Section 10
Applies to?
Only to state or local interference with already existing contracts. Does not apply to the federal government.
Contracts Clause
Analysis?
Private or Government Contract?

State or local interference with PRIVATE contracts must meet intermediate scrutiny (mixed with rational basis scrutiny):
1. Ask, does the legislation substantially impair a party's rights under an existing contract?
2. If so, is the law a reasonably and narrowly tailored means of promoting an imporant and legiimate public interest?

State or local interference with GOVERNMENT contracts must must meet strict scrutiny.
(Contracts Clause Analysis...) But what about the ex post facto clause?
the ex post facto clasue does not apply in civil cases. Retroactive civil liability only need meet a rational basis test. - this will usually be a wrong answer on the exam.
Privacy Analsysis?
is a fundamental right and strict scrutiny analysis is used.
What are privacy rights?
right to MARRY

right to PROCREATE

right to CUSTODY of one's children (state needs a compelling reason; state may create an irrebutable presumption that a woman's husband is the father of her own child)

the right to keep a FAMILY TOGETHER (broader than just parents and children)

Right to control the UPBRINGING of one's children

right to purchase and use CONTRACEPTIVES

right to an ABORTION
Right to abortion prior to viability?
Slightly different standard than strict scrutiny:

1. Prior to viability, state may not prohibit abortion, but may regulate so long as they don't create an undue burden on the ability to obtain abortion.

24 hr waiting pd. not an undue burden
requiremend that performed by licensed physicians not undue burden
prohibition of partial birth abortion not an undue burden
Right to abortion after viability?
State may prohibit abortions unless necessary to protect the woman's life or health.
Must the government provide abortions?
Gov has no duty to provide abortions in public hospitals or to subsidize abortions.
May spousal consent or notification be required for an abortion?
No these laws are unconstitutional.
May parental notice and consent for unmarried minors be required for an abortion?
A state may require, so long as an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor's best interests or that she is mature enough to decide for herself.
Consensual Homosexual activity?
Is a protected privacy right. Level of scrutiny unknown.
Do you have a right to refuse medical treatment?
1. competent adults have the right to refuse medical treatment, even life-saving medical treatment.

2. a state may require clear and convincing evidence that a person wanted treatment terminated before it is ended.

3. a state may prevent family members from terminatnig treatment for another.

level of scrutiny unknown
Is there a Constitutional rigth to phsyician assisted suicide?
no, rational basis review
2nd Amendment?
Scotus has held the 2nd Amendment right to bear arms protects a right of individuals to own a hand gun for self-protection, not just military militia.

It is not an absolute right.

The court has not articulated a level of scrutiny.
Right to travel analysis?
Laws that prevent people from moving into a state must meet strict scrutiny.

Durational residency requirements must meet strict scrutiny.

Restrictions on foreign travel need only meet rational basis.
Durational residence requirements and voting? wellfare benefits?
50 days is the most allowed for voting.

1 year for wellfare benefits is unconstitutional
Right to vote: laws that deny some citizens the right to vote?
Must meet strict scrutiny. However, regulations of the electoral process to prevent fraud only need to be on BALANCE desirable.
One person one vote?
must be met for all state and local elections

any elected body with districts: all districts must be about the same
Are at large elections permissible?
Yes, unless there is proof of a discriminatory purpose (not just discriminatory effect)
May race be used in drawing election district lines to benefit minorities?
(yes) only if meets strict scrutiny.
Bush v. Gore?
Counting uncounted votes without pre-existing standards in a presidential election violates the equal protection clause.
Right to education?
There is no fundamental right to education, rational basis review.
Right to practice a trade or profession?
Not a fundamental right, rational basis review.
Rights triggering strict scrutiny?
Marriage, Procreation, Custody of kids, Keep family together, Contraceptives, travel, vote, speech, association, religion (if law is not a netural/general applicability law)
When is there an Equal Protection issue?
Whenever the government draws distinctions between people.
How to analyze an Equal Protection question?
1. What is the classificaiton? (ofen rational basis)
2. What level of scrutiny should be applied?
3. Does this law meet the level of scrutiny?
Where is Equal Protection found in the constitution?
14th Amendment - applies only to state and local governments

Equal protection is applied to the federal government through the due process clause of the 5th Amendment.
Classifications based on race and national origin?
Equal protection issue. Strict scrutiny is used.
How is the existence of a racial classification proven?
1. the classification exists on the fact of the law
2. if the law if facially neutral, must demonstrate both discriminatory impact and discriminatory intent

(includes discriminatory use of peremptory challenges based on race)
How to treat racial classifications benefiting minorities?
Still apply strict scrutiny:

Numerical set-asides require clear proof of past discrimination (Scotus hates quotas)
May educational institutions use race in admissions?
May use race as one factor in admissions decisions to help minorities, but no set asides or points
May public schools use race as a factor in assigning students to schools?
Only if strict scrutiny is met.

even if the goal is achieving desegretation.
Gender Classification Analysis?
Intermediate scrutiny is used:
serve important governmental objectives and must be substantially related to achievement of those objectives (check this)
How is existence of gender classification proven?
1. the classification exists on the fact of the law
2. if the law if facially neutral, must demonstrate both discriminatory impact and discriminatory intent
What about height and weight requirements?
rational basis
What about gender classifications intended to benefit women?
Gender classficiations based on role stereotypes will not be allowed.

Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed.
How are alienage classifications analyzed?
Strict scrutiny (generally)

However, rational basis is used for alienage classifications that concern self-government and the democratic process (gov can deny non citizens the right to vote or be a teacher, cop, jury duty because integral part of self government)

Intermediate scrutiny is used for discrimination against undocumented alient children (can't make them pay to attend public school)
Can wellfare, civil service jobs and bar passage be restricted to US citizens?
no
How is discrimination against non-marital children analyzed?
1. Intermediate scrutiny

2. Laws that deny a benefit to all non-marital children but grant to all marital children are unconstitutional
Age discrimination?
Rational Basis review.
Disability discrimination?
rational basis review
wealth discrimination?
rational basis review
economic regulations?
government wins
sexual orientation discrimination
unconstitutional under rational basis (under rational basis a CO law that prohibited all laws for the protection of gays was banned.
How to analyze content based restrictions on speech?
1. CONTENT BASED RESTRICTIONS - generally must meet strict scrutiny; two types:
a) Subject matter restrictions (based on the topic of the message - can't require speech be about labor)
b) Viewpoint restrictions (depends on the ideology of the message - like a ban on demonstrations near an embassy because it is embarrasing for the gov.)

2. CONTENT NEUTRAL RESTRICTIONS - only need to meet intermediate scrutiny (like no demonstrations in Miller Park)
What is a prior restraint?
A judge order or administrative system that stops speech before it occurs.
How to analyze prior restraints?
When can gov require license for speech?
Court orders suppressing speech must meet strict scrutiny. Procedurrally proper court orders must be complied with until they are vacated or overturned. A person who violates an order is barred from challenging it later.

2. Government can require a license for speech only if:
a) there is an important reason for licensing and
b) clear criteria leaving almost no discretion to the licensing authority.
c) Licensing schemes must contain procedural safeguards such as prompt determinations and judicial review.
Are Gag orders on the press to prevent prejudicial pre-trial publicity permissible?
NEVER
When is a speech law....Vaguene and Overbroad?
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
May a gov pass a law against fight words?
Fighting words laws are always unconstitutionally vague and overbroad.
Regulations of symbolic speech?
The government can 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 purpose.
Protected?
Flag burning
Draft card burning
Nude dancing
Burning a cross
Contribution limits to campaigns
Expenditure limits in campaigns
Flag burning - yes

Draft card burning - no

Nude dancing - no

Burning a cross - yes, unless it is done w/ intent to intimidate

Contribution limits to campaigns - constitutional

Expenditure limits in campaigns - unconstitutional
can anonymous speech be prohibited?
no, anonymous speech is protected.
What speech is NOT protected by the 1st Amendment?
Incitement of illegal activity
and
Obscenity and sexually-oriented speech
speech that incites illegal activity?
Not constitutionally protected: may be punished if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegal activtiy)
What is unprotected obscene and sexually-oriented speech?
1. the material must appeal to the prurient interest (local standard, shameful/morbid interest in sex)
2. material must be patently offensive under the law prohibiting obscenity (look to the law)
3. taken as a whole, the material lacks serious redeeming artistic, literary, political, or scientific value (national standard)
May the government use zoning ordinances to regulate the location of adult bookstores and movie theaters?
Yes
May child pornogarphy be completely banned?
yes even if not obscene, but must actually be of children
May the government punish private possession of obscene materials?
No, but may punish possession of child pornography.
May the government seize the assets of businesses convicted of violating obscenity laws?
Yes
Is profane and indecent speech protected by the 1st Amendment?
generally, yes.
Gov can't pass law prohibiting sending indecent materials over the internet if accessible to children)

Exception: Broadcast media which is uniquely accessible to the home / children and in schools.
When can the gov ban profane and indecent speech?
Schools and broadcast media
When can commercial speech be prohibited?
1. advertising for illegal activity and false and deceptive ads are not protected by the 1st amendment

2. true commercial speech that inherently risks deception can be prohibited
*Gov can prevent professionals from advertising or practicing under a trade name
*Gov may prohibit attorney, in-person solicitation of clients for profit
*gov may not prohibit accountants from in-person solicitation of clients for profit
General regulation of commercial speech?
Other commercial speech can be regulated if intermediate scrutiny is met.
(law that said lawyers couldn't solicit accident victims w/in 30 days okay)

Gov regulations of commercial speech must be narrowly tailored, but does not need to be the least restrictive alternative.
Defamation of Private Persons?
Private Figure and the matter is of public concern: ,state may allow P to recover for defamation by proving falsity and negligence by teh D. But plaintiff may only recover presumed (statutory) or punitive damages by showing actual malice.

Private figure, not a matter of public concern: Plaintiff can recover presumed or punitive damages witout showing actual malice (negligence?)
Defamation of Public Officials, People running for Office, and Public Figures?
P can recover for dafamation by proving, with clear and convincing evidence, falsity fo the statement and actual malice.
Compensatory Presumed / Punitive Damages
May the government punish a reporter for violating a rape shield law?
Privacy Issue...
Gov may not create liability for the truthful reporting of information that was lawfully obtained from the government - even if its a rape shield law.
May gov punish the media for broadcasting a tape of an illegally intercepted call?
No, if the media did not particpate in teh illegality and it involves a matter of public importance.
Must the gov make all information public?
Gov may limit its dissemination of information to protect privacy. Gov not required to give information - except public has right to attend criminal trials (and most pretrial hearings, etc.).
Do government employees have free speech rights?
Gov employees on the job in teh performance of their duties are not protected by the 1st Amendment.
Places available for speech?
1. public forums
2. limited public forums
3. non-public forums
Public Forums?
government properties the gov is constitutionally required to make available for speech.

1. regulations must be subject matter and viewpoint neutral, or strict scrutiny must be met
2. regulations must be time, place, and manner regulation that serves and important government purpose and leaves open adequate alternative places for communication (intermediate)
3. gov regulations of public forums need not use the leas restrict alternative (city park speakers reqmt okay)
4. city officials can't have discretion to set permit fees for public demonstrations
Limited Public forums?
gov properties the gov could close to speech, but chooses to open to speech (like schools).

Same rules as for public forums.
Non Public Forums?
gov properties the gov constitutionally can and does close to speech. Gov can regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral. (airports, military bases, advertising space on city buses, sidewalks on post office property, area around prison)
Is there a 1st amendment right to access private property for speech purposes? What about shopping center parking lots?
No. (shopping centers is a CA law)
What test is applied to laws that prohibit or punish group membership?
Strict scrutiny. To punish membership in a group, it must be proven:
1. the person was actively affiliated with the group
2. knowing of its illegal activities
3. w/ the specific intent of furthering those illegal activities
May laws require disclosure of group membership?
Where such disclosure would chill association, must meet strict scrutiny.
May laws prohibit a group from discriminating?
Such laws are constitutional unless they interfere with intimate association or expressive activity. (sm dinner party, boy scouts can prohibit gays, nazis can exclude jews)
when can sue under free exercise clause?
Can't be used to challenge a netural law of general applicability. (can ban peyote)

Must show the law was not of genearal applicability or was motivated by a desire to interfere w/ religion. Then strict scrutiny.
May government deny benefits to individuals who quit their jobs for religious reasons?
No
Does a law violate the Establishment Clause?
The Lemon Test:
1. SECULAR PURPOSE for the law
2. EFFECT must be neither to advance nor inhibit religion
3. must not be EXCESSIVE ENTANGLEMENT with religion (gov can't directly pay teachers in parochial schools)
When can government discriminate against religious speech or among religions?
Only when strict scrutiny is met.
Can you exclude religious groups from using facilities available to the community?
no
May government provide $ assistance to parochial schools?
Yes, so long as it is not used for religoius instruction.
Gov may provide vouchers to parents that can be used at parochial schools.