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226 Cards in this Set

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What Constitutional provision provides for federal judicial power?
Article III
What are the constitutional requirements must be satisfied for a federal hearing?
Federal courts can only hear "cases and controversies".
Standing
Ripeness
Mootness
Political Question Doctrine
What must a P show to demonstrate federal standing?
P must show:
1. injury (past or imminent personal injury)
2. Casusation and redressability (that D caused the injury and that an available remedy will redress it)
What must a federal P seeking injunctive or declaratory relief show?
Liklihood of future (personal) harm
Under what circumstances may a P assert 3rd party claims to a federal court?
Only where they meet the other standing requirements and:
1) have a close relationship w/ 3rd pty,
2) the 3rd pty is unlikely to be able to assert their rights, OR
3) P is an organization suing on behalf of members w/ standing.
Under what circumstances may an oganization obtain standing to sue in federal court on behalf of its members?
1. the members would have standing
2. the interests are germain to the organization's interests
3. niether the claim nor relief requires the participation of the individual members
What is the federal rule regarding suits against the government based on general greivences?
Citizenship or taxpayer status are no basis for standing except to challenge government expenditures in violation the Establishment Clause.
What factors are considered in determining ripeness?
The hardship that will be suffered without preenforcement review and the fitness of the issue and record for judicial review (is there enough info available to settle it).
What does ripeness refer to?
The question of whether a federal court may grant pre-enforcement review of a statute or regulation.
What does mootness refer to?
Events which occured after filing which end the P's injury and lead to dismissal.
Under what circumstances may a moot question be litigated in federal court?
1. wrong is capable of repetition and evading review
2. the cessation has been voluntary and may return at any time
3. in class action suits where the issue remains live for at least one member of the class
What type of questions will federal courts never adjudicate?
Political questions.
What are the classes of non-justiciable issues?
1. Claims based on the "republican form of government clause"
2. challenges to the president's conduct of foreign policy
3. challeneges to the impeachment or removal process
4. challenges to partisan gerrymandering
How do cases arrive at the SCOTUS?
1. Through writ of certiorari from the highest state courts
2. By writ of cert thourgh the courts of appeals
3. where "review by appeal" is granted from 3 judge district court panels
4. original jurisdiction for suits between the states
The SCOTUS cannot review a state case when...?
When there is an independent and adequate state law ground for the decision and SCOTUS' decision will not effect the remedy.
The principal of soverign immunity prohibits what?
1. Suits against the states in federal court.
2. Suits against states in state courts or federal agencies.
What amendment bars suits against states in federal court?
11th
Under what circumstances may a state be sued?
1. Express state waiver
2. Pursuant to federal laws adopted under Section 5 of the 14th Amend.
3. By the federal government
4. In bankruptcy proceedings.
Suits against state officiers are permitted where?
1. They may be sued for injunctive relief.
2. They may be personally liable for money damages.
State officiers cannot be sued under what circumstances?
When the state treasury would be paying for past harms (aka retroactive damages).
What does the principal of abstention say?
Federal courts may not enjoin state proceedings.
What does Congress have police power over?
MILD
1. Military
2. Indian reservations
3. federal land
4. D.C.
What is police power and who has it?
Police power is the right to do anything not forbidden in the Constitution. It is held by the states or Congress in MILD.
What does the "necessary and proper" clause permit?
Congress to employ any means not prohibited by the Constitution to carry out its authority.
Under what circumstances does Congress have the power to act?
Where granted express or implied power by the Constitution.
What are Congresses taxing and spending powers?
Congress may tax and spend for the "general welfare".
What does the Commerce Power give Congress the right to regulate?
1. The channels of interstate commerce.
2. The insturmentalities of interstate commerce or people or things in it.
3. Economic activities that have a substantial effect on interstate commerce.
Under the 10th amendment what may Congress not do?
Compel state regulatory or legislative action. But Congress can use grants induce state action so long as the conditions are expressly stated and relate to the program's purpose.
Congress may prohibit ______ activity by state governments.
harmful commercial
What power does Congress have and not have under Section 5 of the 14th Amend?
Power to prevent or remedy violations of court recognized rights using laws "proportionate" and "congruent" to the violation. Congress may not create or expand scope of rights.
What limit exists on Congress' ability to delegate legislative power?
None
What elements are required for Congress to act under the Delegation of Powers?
Bicameralism and presentment (to Prez)
What types of vetos are unconstitutional?
Legislative and line item vetos
What does it mean that Congress may not delegate executive power to itself?
Congress has no power to enforce or implement the law.
When is a treaty valid?
When negotiated by the Prez and ratifed by the Senate.
What happens when a treaty conflicts with state law? With the Constitution?
The treaty prevails against state. Constitution invalidates treaty.
What happens when a treaty conflicts with a federal statute?
The one adopted last prevails.
What is an Executive Agreement?
An agreement between the US and a foreign country that is valid when signed by the Prez and foriegn nation.
What can an Executive Agreement accomplish?
Anything a treaty can.
What happens when an Executive Agreement conflicts with state laws? Federal? The Consitution?
1. EA trumps state law
2. Never prevails over fed or Con Law
Under what circumstances is the Prez use of American troops abroad unconstitutional?
Never been found yet. Also may be nonjusticiable as political question.
Who does the President appoint?
Ambassadors, federal judges, and officiers. But the Senate must confirm them.
Congress may invest appointments for who with the Prez, fed courts, or heads of departments?
Inferrior officers.
Who does Congress have the power to appoint?
No one, but it can invest federal courts, the Prez, or heads of departments with power to appoint inferrior officiers.
Who may the Prez fire?
Any executive branch office unless limited by statute. Congress may only limit removal for offices where independence from Prez is desirable.
Impeachment and removal of the Prez, VP, and fed judges is allowed for what reasons?
1.treason
2. bribery
3. high crimes and misdemeanors
What votes are required in Congress for removal/impeachment?
The House must impeach w/ a majority vote. Then the Senate can convict w/ a 2/3 vote.
What does the Presidential Immunity cover?
Absolute immunity over civil suits for money damages while in office, but not for suits arising from action prior to taking office.
What does the Executive Privilege cover?
Presidential papers and conversations can be kept secret unless an overriding governmental interest is asserted.
Who can the Prez pardon?
Only those convicted of federal crimes.
Where does the federal power of preemption come from?
The Supremecy Clause of Article VI of the Constitition.
How does preemption arise?
1. Express preemption by federal statute.
2. implied preemption
3. inter-governmental immunity
How does implied preemption arise?
1. fed and state laws that are mutually exclusive
2. state law that impedes a fed objective
3. where Congress has clear intent to preempt
What does inter-governmental immunity mean?
State may not tax or regulate the federal government.
What does the dormant commerce clause prohibit?
State and local laws that place an undue burden on interestate commerce.
What does the Privileges AND Immunities Clause of Article IV say?
No state may deny the citizens of other states the same privileges and immunities that it provides its own citizens.
What does the Privileges OR Immunities Clause of the 14th Amendment say?
States may make no law that inhibits travel or migration.
Under what circumstances may a state burden interstate commerce and discriminate against out-of-staters?
Where the policy is necessary to acheive an important government purpose. (rarely upheld) or 1) receives Congressional approval or 2) meets the market participant exception.
What is the market participant exception?.
State or local governments may prefer their own citizens in receiving benefits from a government program or in dealing with government-owned businesses.
What effect generally where a state government discriminates against out-of-staters with regard to their ability to earn a living?
It violates the privileges and immunities clase of article iv unless necessary to meet an important government purpose.
Who may not use the privileges and immunities clause under article iv?
corporations and aliens. corporations may only use the dorment commerce clause.
What type of discrimination will violate the privileges and immunities clause of article iv?
Out-of-state discrimination with regard to important economic activities or civil liberties.
A state government may discriminate against out-of-staters with regard to their ability to earn a living under what circumstances?
The discrimination is necessary to acheive an important government interest.
A state government's discrimination against out-of-staters with regard to their ability to earn a living is probably unconstitutional under what?
The privileges and immunities clause of Article IV
What clause is triggered by a state placing a burden on interstate commerce?
The dorment commerce clause
Which clause can aliens and corporations sue under, the dorment commerce clause or the privileges and immunities clause?
The dorment commerce clause
What exceptions exist for violations of the dorment commerce clause?
Congressional approval or the market participant rule.
Under what circumstances may a state tax interstate commerce?
Where there is a substantial nexus to the state and taxation of interstate businesses is fairly apportioned?
May states use their tax systems to help in-state businesses?
No.
Courts in one state must give _______ and ________ to the judgments of courts in other states?
full fair and credit (allows collections of judgments)
Under what circumstnaces must a court give full faith and credit to the decisions of out-of-state courts?
1. rendered by a court with jurisdiction
2. judgment was on the merits
3. the judgment is final
Must individual conduct comply with the Constitution?
No, only governmental. But Congress may apply constitutional norms through statute.
Can racial discrimination violate the 13th amendment?
No, only slavery can, but it can violate statutes adopted pursuant to the 13th amendment.
Which aspects of the Constitution may be used to regulate individual behavior?.
The 13th Amendment and the Commerce Clause.
Whose conduct does section 5 of the 14th Amendment regulate?
State and local government conduct only, not private acts.
Under what circumstances must private entities comply with the Consitution?
1. Public function exception
2. The entanglement exception
What is the public function exception?
Where a private party is performing tasks traditionally EXCLUSIVELY performed by government they must comply with the constitution.
What activites have been held to fall under the private function exception?
Running a town and organizing elections. Public utilities are covered.
When does the entanglement exception apply?
When the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.
What are some examples of situations that have triggered the entanglement exception?
1. Court enforcement of racially restrictive covenents
2.Leasing of state land
3. Providing textbooks to schools
4. private entity regulating interscholastic sports
What are some examples of situations that have not triggered the entanglement exception?
1. Firing a teacher for speech at a school 99% funded by state
2. NCAA ordering coaches at state universities
3. Private clubs receiving liquor licenses
How are portions of the Bill of Rights applied to the states?
Through the due process clause of the 14th amendment.
Which rights have never been applied to the states?
2nd and 3rd amendments.
5th amend right to grand jury
7th right to jury in civil trial
8th right against excessive fines
What is the rational basis test?
Action must be rationally related to a legitimate government interest. Burden on challenger. Legitmate purpose need only be conceivible, not the actual purpose.
What is intermediate scrutiny?
The conduct will be upheld if it is substantially related to an important government purpose. Burden on government. Only considers the action's actual purpose. Should be narrowly tailored to acheive objective, but need not be the best way.
What is strict scrutiny?
The action must be necessary to acheive a compelling government purpose. Burden on gov't. Are the means the least restrictive alternative to acheive the actual objective.
What is procedural due process?
The procedures the government must follow to take away life, liberty, or property. Must seek a procedural remedy.
What is substantive due process?
An adequate reason for removing life, liberty, or property.
When does a loss of liberty occur?
When a person is deprived of a significant freedom provided by the constitution or statute.
When does a loss of property occur?
When a person is deprived of an entitlement and the entitlement is not fulfilled. An entitlement exists where there is a reasonable expectation of continuation of a benefit.
When does an entitlement exist?
An entitlement exists where there is a reasonable expectation of continuation of a benefit. A property interest in continuation.
Deprivation of due process requires ______ government action or at least _______ for liability to exist.
intentional; reckless action
In emergency situations the government is liable for deprivation of due process when?
The conduct "shocks the conscience" such as demonstrating an intent to cause harm.
Under what circumstances is the government obligated to protect people from privately inflicted harms in order not to deny due process?
Where the gov't literally creates the harm or a person is physically in government custodty.
What procedures are required under due process?
Procedures determined by balancing test: 1. the importance of the interest to the indiv'l 2. ability of add'l procedusre to increase accuracy of fact finding, 3. the gov't interests
What are the procedural due process requirements for terminating welfare benefits?
Notice and hearing must be provided before termination.
What are the procedural due process requirements for terminating social security benefits?
Post-termination notice and hearing.
What are the procedural due process requirements for a student being disciplined by a public school?
Notice of charges and opportunity to explain. Suspension and explusion have due process reqs but corporal punishment does not.
What are the procedural due process requirements for terminating parental custody?
Prior notice and hearing.
What are the procedural due process requirements for punitive damages?
Jury instructions and judicial review for reasonableness. Grossly excessive violates due process.
What are the procedural due process requirements for a US citizen detained as an enemy combatent?
Notice, hearing, access to counsel.
What are the procedural due process requirements for pre-judgment attachment or seizure of property?
Absent exigent circumstances, prior notice and hearing. But property used in illegal activity can be seized even from an innocent owner.
What level of scrutiny is applied to laws affecting economic rights?
Rational basis.
What does the takings clause say?
The government may take private property for public use if it provides just compensation.
what are the two types of takings?
possessory taking and regulatory taking
What is a possessory taking?
Government confiscation of private property (regardless of how small the area).
What is a regulatory taking?
Government regulation that leaves property with NO reasonable economically viable use (not a mere decrease or changed use)
Government conditions on the development of property must be justified by?
a benefit that is roughly proportionate to the burden imposed. excessive burden = taking.
May a property owner bring a takings challenge to regulations in place when they acquired the property?
yes
Does temporary denial of the use of property qualify as a taking?
No, so long as the period of time is reasonable.
The elements of a legal taking are:
1. a deprivation of property ( a taking)
2. for public use
3. for which just compensation is paid.
What constitutes public use for the purposes of a taking?
The reasonable belief that the taking will benefit the public (broad definition). Sales to private development ok..
How is just compensation determined for the purposes of a taking?
Compensation should equal the economic market value loss to the owner (not the gain to the taker).
What does the contracts clause say?
No state shall impair the obligations of (existing)contracts.
What does the contracts clause apply to?
State or local interference with existing contracts (never fed, but may challenge under due process)
What scrutiny does state or local interference with private contracts face?
1. Does the legislation substantially impair a parties rights in an existing contract?
2. Is the law reasonably and narrowly tailored to promote an important and legitimate public interest?
What scrutiny does a state or local government face for interference in government contracts?
Strict.
What is an ex post facto law?
A law that criminally punishes conduct that was legal when it was done or increases punishment after the crime was committed.
Does the ex post facto clause apply in civil cases?
No, retroactive civil liability requires only rational basis.
May a state create or increase civil liability for an action that has already occured?
Yes, if it meets the rational basis test.
How does the right to privacy come about?
Through the substantive due process requirements of the 14th amendment.
Privacy is a ___________ right.
fundamental, therefore, subject to strict scrutiny
What is covered by the right to privacy?
1. Right to marry
2. Right to procreate
3. Right to custody of one's kids
4. Right to keep (related) family together
5. Right to control upbringing of one's children
6. Right to purchase and use contraceptives
7. Right to abortion (no strict scrutiny)
8. Right to engage in private homosexual activity
9. Right to refuse medical treatment
Can a state create an irrebuttable presumption that a woman's husband is the father or her child?
Yes.
May a court order grandparent visitations over parental objections?
No, this is a violation of the parent's substantive due process rights to control their children's upbringing.
Prior to viability, what may states regulate about abortions?
State may not prohibit them, but may regulate in such a way that does not create an UNDUE BURDEN on the ability to obtain one.
May states prohibit partial birth abortions?
Yes, this does not create an undue burden on the ability to obtain an abortion.
After viability, what regulations may a state make regarding abortion?
States may prohibit these abortions unless necessary to protect the women's life or health.
The government is under what duty to provide facilities or money for abortions?
None
Are spousal consent or notification laws for abortion constitutional?
No
May a state enforce parental notice/consent requirements for unmarried minors to abort?
Yes, so long as an alternative procedure exists allowing the minor to obtain consent from a judge upon a finding that the abortion is in the minor's best interests and she is capable of making the decision.
What laws may a state enforce with regard to competant adults refusing medical treatment?
1. The state may require clear and convincing evidence of a desire to terminate.
2. The state may prevent family members from terminating treatment for another.
Is there a constitutional right to physician assisted suicide?
No.
What rights does the 2nd amendment protect?
The right to bear arms for militia or non-militia purposes, but the right is not absolute. Only one gun control law has been overturned since 1791.
Laws that prevent people from moving from state-to-state face?
Strict scrutiny
Durational residency requirements to obtain state benefits face?
Strict scrutiny because they chill interstate travel and immigration.
Restrictions on foreign travel face?
Rational basis test.
Laws that deny some citizens the right to vote face?
Strict scrutiny
Laws that regulate the elecotral process in order to prevent fruad must?
Be on balance desirable. (no strict scrutiny)
Poll taxes and property ownership requirements are?
Unconstitutional because they impinge on a fundamental right.
What does the one-person-one vote rule mean?
All elections (for any body) must be made up of districts of approximately the population size.
At large elections are?
Constitutional unless discriminatory purpose is found (mere discriminatory impact is insufficient)
Race may be used in drawing election districts?
Only if it meets strict scrutiny
Is there a fundamental right to education or balanced school funding
No
3 Non-fundamental rights subject to the rational basis test:
1. Right to practice in a trade or profession
2. Right to MD assisted suicide
3. Right to education
What right triggers the "undue burden" test?
Abortion
Approach to equal protection questions?
1. What is the classification
2. What level of scrutiny should be applied
3. Does the law meet that level of scrutiny?
How does equal protection apply to the states and the federal government?
To the state through the 14th amend. To the feds through the due process clause of the 5th.
Classifications based on race or national origin face?
Strict scrutiny
How are racial classifications demonstrated?
On the face of the law or by demonstrating both discriminatory impact and intent.
Racial classifications benefitting minorities are?
Subject to strict scrutiny.
What forms of pro-minority discrimination are allowed?
1. Numerical set-asides upon a showing of clear proof of past discrimination
2. Race used as a factor in educational institution decisions
3. But note, public schools cannot use race as a factor in assigning schools
Gender classifications face?
Intermediate scrutiny
Gender classifications can be shown through:
1. the face of the law
2. a showing of discriminatory intent and impact
How are gender preferernces benefitting women treated?
1. Gender-bias based on role stereotypes are not allowed
2. Classification designed to remedy past differences in opportunity are allowed.
Alienage classifications face:
Generally, strict scrutiny, but
1. rational basis for Congressional discrimination or classifications involving self-government or demographic process and
2. intermediate scrutiny for discrimination against undocumented alien kids
What forms of discrimination against aliens have been upheld under the rational basis test?
Voting, jury service, police, teaching, or probation officers. those "integral to self-government"
Discrimination against non-martial children faces?
Intermediate scrutiny
What type of legitmacy classification laws are always struck down?
Laws granting a benefit to all martial children and denying it to all mom-martial children.
What type of legitmacy classification laws have been upheld?
Those granting benefits to some non-martial kids and martial kids.
Name several forms of discrimination that face rational basis review under the equal protection clause.
Discrimination based on:
Age, disability, wealth, and sexual orientation. Economic regulation.
Strict scrutiny is applied to what classifications under the equal protection clause?
Race, national origin, alienage (mostly), domestic travel, and voting
Intermediate scrutiny is applied to what classifications under the equal protection clause?
gender, illegitimacy, and undocumented alien children.
What are the 2 types of content-based restrictions on speech and what level of scrutiny do they face?
Strict
1. subject matter restriction
2. viewpoint restriction
What level of scrutiny do content nuetral restrictions on speech generally have to meet?
Intermediate
Court orders supressing speech must meet?
Strict scrutiny
A person who violates a procedurally proper court order is?
Barred from later challenging it.
When can a court issue gag orders to the press to avoid prejudicial pretrial publicity?
Never
Under what conditions may the government license protected speech?
1. an important reason for licensing;
2. clear criteria leaving almost no discretion to authority; AND
3. procedural safegaurds in place
When is a law unconstitionally vague?
If a reasonable person cannot tell what speech is prohibited and what is allowed
when is a law unconstitutionally overbroad?
If it regulates substantially more speech than the consitution allows to be regulated.
What are fighting words and what level of protection do they receive?
=speech likely to provoke a violant response.
FWs are not constitutionally protected, but only one conviction has ever been upheld.
Laws restricting the use of fighting words are always ________ and ______.
unconstitutionally vague and overbroad
When may the government regulate symbolic speech?
1. regulation has an important interest unrelated to supression of the message; AND
2. the impact on communication is no greater than necessary to acheive that purpose.
Name some forms of symbolic speech that the Court has allowed to be supressed?
Draft card burning, nude dancing, contribution limits to political candidates
Name some forms of symbolic speech that the Court has found the government could not supress?
Flag burning, cross burning (unless done to threaten), limits on political expenditures, and limits on spending for ballot initatives.
What types of political spending may be regulated?
Contributions to political candidates may be regulated, but total personal expenditures or contribution to lobbying or ballot initatives may not.
What types of speech are unprotected or less protected under the 1st Amendment?
1. Incitement of illegal activity
2. obsencity and sexually-oriented speech
3. commercial speech
4. dafamation
When may the government punish speech inciting illegal activity?
When there is 1) substantial liklihood of imminent illegal activity and 2) the speech directed to causing imminent illegality.
What is the test for obscenity?
1. Material appeals to the purient interest
2. Is patently offensive under the law prohibitng obscenity
3. and taken as a whole, lacks serious artistic, literary, political, or scientific value.
What is a purient interest?
a shameful or morbid interest in sex, as judged by a local community standard
What material is patently offensive under the law?
Material that is deliniated as offensive by the relevant statute (statute must contain such a description)
The artistic, literary, political, or scientific value of speech is determined by what standard?
A national standard
May the government use zoning ordinances to regulate adult bookstores?
Yes. There is an impotant state interest in protecting the character of a neighborhood
What is child pornography and what are the rules relating to it?
Child pornography involves the use of actual children. It may be banned even where not obscene and the government can punish the private possession of it.
May the government punish the private possession of obscene materials?
No, except child pornography
May the government seize the assets of a buisness in violation of obscenity laws?
Yes, can seize all assets even where tiny amount of illegal material is found.
Profane and indecent speech is generally ________ by the 1st amendment.
protected
Under what circumstances is profane and indecent speech not protected?
Over the broadcast media (public airways) and in school.
What type of commercial speech is not protected by the 1st amendment?
Advertisments for illegal activity and false or deceptive ads.
What type of true commercial speech may the government regulate?
Speech that is inherently deceptive, such as use of trade names.
May the government regulate attorney solicitation of clients?
Yes, if it is in-person and for profit.
May the government regulate accountant solicitation of clients?
No.
What level of scrutiny applies to general commercial speech?
Intermediate. Regulation must be narrowly tailored, but not least restrictive alternative.
What must P prove in a defamation suit where P is a public official, running for public office, or a public figure?
Falsity of the statement and actual malice.
What does actual malice mean in a defamation case?
Knowledge of falsity or reckless disregard for the truth.
Who is a public figure for defamation purposes?
One who thrusts themsevles in the limelight--someone with access to the media to defend themselves.
What must P prove in a defamation suit where P is a private figure in a matter or public concern?
Falsity of the statement, negligence by the D, and actual damages. But need actual malice for punitive or presumed damages.
What must P prove in a defamation suit where P is a private figure in a matter not of public concern?
Unclear, but it appears negligence and D has the burden of proving truth. Punitive or presumed damages may be awarded on this basis.
Can the media be punished for reporting invasive personal information that was lawfully obtained from a government?
No.
Under what circumstances may the media broadcast illegally obtained information?
Where the media did not participate in the illegality and it involves a matter of public importance.
What 1st amendment rights exist access to information from the government?
None, except to attend criminal proceedings.
Whose speech is never protected by the 1st amendment?
Government employees on the job in performance of their duties.
What is a public forum?
Government property that is constitutionally required to be available for speech. Eg, sidewalks and parks
What regulations of speech are permissible in public forums?
Regulations must be
1. subject matter and viewpoint neutral or subject to strict scrutiny.
2. time place or manner and serve an important government purpose and leave open adequate alternative places for communication
3. need not be the least restrictive alternative,
4. cannot give licensing officials discretion over permits or fees
What is a limited public forum or designated public forum?
Government properties that can be closed to speech but the government has chosen to open to speech.
What regulations of speech are permissible in limited public forums?
Same as public forum:
Regulations must be
1. subject matter and viewpoint neutral or subject to strict scrutiny.
2. time place or manner and serve an important government purpose and leave open adequate alternative places for communication
3. need not be the least restrictive alternative,
4. cannot give licensing officials discretion over permits or fees
What is a non-public forum?
Government properties which the government can and does choose not to open to speech.
What regulations of speech are permissible in non-public forums?
Any regulation so long as it is reasonable, related to a legitimate government interest, and viewpoint neutral.
What are traditional non-public forums?
airports (for soliciation), military bases, outside of prisons and jails, ad space on city buses, sidewalks on postoffice property
Is there a 1st amendment right to speech on private property?
No, but the Ca Consititution does grant a free speech right to shopping malls.
Freedom of assocaition is a _________ right.
fundamental
Laws prohibiting or punishing group membership are subject to?
Strict scrutiny
Tp punish someone for being a member of a group the government must show?
1. they were actively affiliated w. the group
2. knew of its illegal activities; and
3. had specific intent of furthering those illegal activities
What is the rule regarding laws requiring disclosure of group membership?
Where such disclosure would chill association laws must be strict scrutiny.
May the government enforce laws prohibiting a private group from discriminating?
Yes, unless the law interferes with intimiate assocation or expressive activity.
In order to be exempt from laws forbidding discrimination a private group must show what?
That the discrimination is in accordance with their expressive message (eg., Klan can discriminate against blacks)
The free exercise clause cannot be used to challenge what kind of law?
A neutral law of general applicability
If a neutral law is passed with the intent limit religion or target certain religious groups what level of scrutiny applies?
Strict.
If a person quits their job for religious reasons may the government deny them benefits?
No.
What test applies for establishment clause actions?
The Lemon test:
1. must be a secular purpose for the law
2. the effect must be niether to inhibit nor encourage religion
3. and there must not be excessive government entanglement.
Can the government directly pay the salaries of parochial school teachers?
No, this would be excessive entanglement because it would require monitoring relgious education.
Must public schools be open for use by religious groups?
Only if they are also open to other community groups.
Can schools institute any form of prayer?
No.
Can the government give assistance to parochial schools?
Yes, so long as it is not used for religious instruction (and is of the same type given to publuc schools).
Are school voucher programs used for parochial schools legal?
Yes.