Con Law 2

Question 1

Gov Action Requirements

Answer 1

Const. applies only to govt. action (fed., state, or local)

Private conduct does not have to comply with Const., subject to the below exceptions

Question 2

Gov Action & Exceptions

Answer 2

Const. will apply to private conduct where:

1) Exclusive public function — a private entity performs a task traditionally performed by govt. (narrow exception)

–Arises only if a private entity exclusively operates a govt. function (e.g., private prisons, elections)

2) Significant state involvement (entanglement) — govt. affirmatively authorizes or facilitates private conduct

State must affirmatively approve or validate private conduct — permitting it alone is insufficient

Examples of state action — court enforces a racially restrictive covenant; state provides books to private schools that racially discriminate

Examples of no state action — govt. grants liquor license to racially discriminatory private club; private school receiving govt. funds fires a teacher over speech

Note — Congress may indirectly regulate private conduct through the Commerce Clause (if it affects interstate commerce) or through the 13th Amend. (enabling Congress to pass legislation enforcing the 13th Amend. ban on slavery)

Question 3

Bill of Rights

Answer 3

The Bill of Rights (BoR) only applies directly to the fed. govt.

Certain provisions of the BoR apply to state and local govts. through the incorporation doctrine

Incorporation — the Supreme Court has held specific BoR provisions applicable to the states through incorporation into the 14th Amend. Due Process (DP) Clause
Most BoR provisions are now incorporated

Question 4

Exceptions to BoR

Answer 4

certain provisions of the BoR are not incorporated by the 14th Amend. to states, including:

3rd Amend. right not to have soldiers quartered in homes

5th Amend. right to grand jury indictment in criminal cases

7th Amend. right to jury trial in civil cases

Question 5

Reverse incorporation

Answer 5

14th Amend. Equal Protection Clause does not apply directly to the fed. govt., but has been held to apply to the fed. govt. through the 5th Amend. DP Clause

Question 6

Enforcement of Post-Civil War Amendments

Answer 6

The 13th, 14th, and 15th Amendments each contain an enabling clause authorizing Congress to adopt appropriate legislation to enforce the rights these Amendments guarantee

Question 7

13th Amend.

Answer 7

prohibition on slavery and involuntary servitude

Congress can adopt legislation prohibiting almost any private racial discrimination that constitutes a “badge or incident of slavery”

E.g., Congress can pass a law prohibiting employers from discriminating in hiring on the basis of race

No state action requirement — 13th Amend. applies to private action by its terms

Question 8

14th Amend.

Answer 8

prohibits states from depriving any person of life, liberty, or property without due process and equal protection

Congress can adopt legislation to enforce rights and guarantees, but may not expand existing, or create new, constitutional rights

Requirements — law passed pursuant to 14th Amend. must:

1) Point to a history and pattern of state violation of rights; and

2) Be proportional and congruent to solving the violation

Question 9

15th Amend.

Answer 9

prohibits state and fed. govts. from denying any citizen the right to vote on the basis of race or color

Can be limited by other Const. principles

Much less likely to appear on the bar exam

Question 10

Levels of Scrutiny

Answer 10

Rational Basis

Intermediate Scrutiny

Strict Scrutinu

Question 11

Levels of Scrutiny - Rational Basis

Answer 11

a law will be upheld if it is rationally related to a legitimate govt. purpose

Any conceivable legitimate purpose suffices, regardless of the actual purpose of the law
–Legit = not unconstitutional

A law will almost always be upheld under rational basis review unless it is completely irrational or arbitrary

Burden of proof — challenger bears the burden of proof

Question 12

Levels of Scrutiny - Intermediate Scrutiny

Answer 12

a law will be upheld if it is substantially related to an important govt. purpose

Govt. goal must be important; courts look at the actual reason the law was enacted

Substantially Related = firm connection, but does not need to be the least restrictive alternative

Burden of proof — govt. bears the burden of proof

Question 13

Levels of Scrutiny - Strict Scrutiny

Answer 13

a law will be upheld if it is necessary to achieve a compelling govt. interest

Necessary = Govt. must show there are no less restrictive or burdensome means of achieving its goal

Courts look at the actual reason the law was enacted

Burden of proof — govt. bears the burden of proof

Question 14

Procedural Due Process

Answer 14

A fair process (e.g., notice, hearings) is required for govt. to take or deprive a person’s life, liberty, or property

Due process rights arise only if govt. acts to deprive an individual, not when govt. acts generally

Question 15

Analysis of Procedural Due Process

Answer 15

1) Has there been a deprivation of life, liberty, or property?

–Liberty deprivation — loss of significant freedom of action or freedom provided by Const. or statute (e.g., institutionalization, govt. restriction of fundamental rights)

—Property deprivation — a legitimate claim or entitlement to a benefit under law, which goes unfulfilled

E.g., Legit claim or entitlement to gov benefits: public school attendance, welfare, gov jobs

2) What procedures are required? — determined by balancing:

a) Importance of the individual interest involved, and

b) Value of procedural safeguards to that interest, against

c) Govt. interest (i.e., fiscal or administrative efficiency)

3) Usually fair procedures, an unbiased decision-maker, and notice of the govt.’s action will be required

Examples — procedural due process requirements arise with:

Terminating welfare/social security benefits; separating child from parents; punitive damages awards; enemy combatant status for citizens obtained in foreign countries

Question 16

Legit claim or entitlement to gov benefits

Answer 16

Exists when there is a reasonable expectation of continued receipt (based on law or policy)

Question 17

Substantive Due Process

Answer 17

Involves the determination of whether govt. has adequate reasons for depriving life, liberty, or property

Encompasses both fundamental and non-fundamental rights

Question 18

Substantive Due Process - Applicable Levels of Scrutiny

Answer 18

Non-fundamental rights — rational basis

Fundamental rights — strict scrutiny

Question 19

Substantive DP vs. Equal Protection Clause (EP)

Answer 19

Similarities — under both substantive DP and EP, a court reviews the substance of the law, not procedures

Differences:

a) Substantive DP — usually involves laws affecting rights of all persons to engage in some conduct or activity

b) EP — usually involves laws treating certain people or classes of people differently than others, often based on some trait

Question 20

Fundamental Rights

Answer 20

Rights not expressly enumerated in the Constitution, incl.:

1) Privacy-related rights

2) Right to vote

3) Right to travel among states

4) 1st Amend Rights

Question 21

Fundamental Right to Privacy

Answer 21

SS:

1) Right to procreate

2) Right to marry

3) Rights concerning family and children
–right to custody of one’s children
–right to keep family together
–right to control children’s upbringing

4) Right to contraceptives

Unknown Review:
1) Right to engage in private, consensual homosexual activity (unknown)

2) Right to refuse medical treatment (unknown)

Question 22

Abortion

Answer 22

As of 2022, abortion is no longer recognized as a substantive DP right included in the right to privacy

Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022)—U.S. Supreme Court held that the Constitution does not confer a right to abortion, overruling Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992)

Individual states now have the authority to regulate access to abortion; need only pass RB

Question 23

Right to Bear Arms

Answer 23

The Second Amendment protects the right of individuals to bear arms for self-defense. This includes the right to keep a handgun at home and the right to carry a handgun in public.

Question 24

Gun Permits

Answer 24

The Second Amendment protects the right of individuals to bear arms for self-defense. This includes the right to keep a handgun at home and the right to carry a handgun in public.

Question 25

Standard for Review for 2nd Amendment

Answer 25

If a regulation burdens an individual’s right to keep and bear arms, then the government must justify the regulation by demonstrating it is consistent with the country’s historical tradition of firearm regulation. Simply positing that the regulation promotes an important interest is not sufficient.

Question 26

Equal Protection Application

Answer 26

Application — how EP applies to fed., state, and local govts.: 14th Amend. EP Clause applies directly to state/local govts. EP applies to the fed. govt. by incorporation through the 5th Amend. DP Clause (i.e., EP Clause does not apply directly to the fed. govt.) The same analysis and levels of scrutiny apply for EP analysis whether it applies through the 5th or 14th Amend.

Question 27

EP Analysis

Answer 27

If you see anything that could implicate EP, ask: 1) Is the government acting? 2) Is there a discriminatory classification? -->To receive heightened scrutiny, a discriminatory classification must be proved 3) What level of scrutiny applies given the classification? -->Suspect classifications — strict scrutiny -->Quasi-suspect classifications — intermediate scrutiny -->All other alleged classifications — rational basis 4) Does the classification satisfy the appropriate level of scrutiny?

Question 28

Proving Discriminatory Classifications

Answer 28

Classifications must be discriminatory to be reviewed under heightened scrutiny (intermediate or strict scrutiny) 1) Law discriminates on its face 2) Facially-Neutral Law Applied in a discriminatory manner--law does not create a classification by its terms, but does so as applied 3) Discriminatory Motive/Purpose behind law and/or application

Question 29

Proving Discriminatory Classifications - Discriminatory motive/purpose behind law and/or application

Answer 29

Test — P must show: 1) Disparate impact — the law has a discriminatory impact (i.e., it creates a classification); and 2) Discriminatory purpose — law was enacted or maintained for reasons involving discrimination Demonstrating discriminatory impact alone is not enough; there must be some evidence of govt.’s discriminatory motive

Question 30

Strict Scrutiny for Suspect Classification

Answer 30

1) Race 2) National origin 3) Alienage* (can be RB) 4) Right to travel 5) Right to vote

Question 31

Alienage & Rational Basis

Answer 31

Alienage, but only if classification: 1) Relates to self govt. and the democratic process,* or 2) Is a congressional action concerning immigration*

Question 32

Alienage & RB - Relates to Self Gov & Democratic Process

Answer 32

Often arises where job applicants are denied govt. employment based on their citizenship status Areas where alienage classifications have been upheld under rational basis review: 1) Voting 2) Serving on a jury 3) Working as a police officer 4) Working as a K-12 teacher 5) Working as a probation officer

Question 33

Alienage & RB - Congressional Law

Answer 33

Congress has plenary powers to regulate immigration

Question 34

SS - Race & National Origin

Answer 34

Classifications based on race or national origin are suspect classifications reviewed under strict scrutiny Classifications benefitting minorities (affirmative action) 1) Numerical set-asides (quotas) — to be valid, requires clear proof of persistent and readily identifiable discrimination, which cannot be based on general past wrongs -->Quotas are unlikely to be upheld 2) Public education & higher education — Diversity is not a compelling interest sufficient to overcome strict scrutiny at any level of education (e.g., primary, secondary, or college/university) -->Most public school and higher education programs that directly consider race in admissions/assignment decisions will not be upheld

Question 35

IS for Quasi Suspect Classifications

Answer 35

1) Gender 2) Nonmarital children

Question 36

Gender Classifications

Answer 36

int. scrutiny + “exceedingly persuasive justification” Gender classifications receive heightened intermediate scrutiny (i.e., they must substantially relate to an important govt. purpose) -->Additionally, courts often require an “exceedingly persuasive justification” for the classification Classifications discriminating against men are usually invalid -->Some have passed intermediate scrutiny (e.g., statutory rape laws applying only to men, all-male military draft) Classifications benefitting women: 1) Classifications based on stereotypes are impermissible 2) Classifications designed to remedy past discrimination or differences in opportunity will likely be upheld

Question 37

Nonmarital Children Classifications

Answer 37

Usually arises with intestacy statutes Intermediate scrutiny — applies if a law grants benefits to all marital children but denies benefits to some nonmarital children Laws that deny benefits to all nonmarital children while granting benefits to all marital children are unconstitutional on their face

Question 38

All Other Classifications - RB

Answer 38

All other — all other classifications not qualifying for strict or intermediate scrutiny receive rational basis review Will likely pass unless the classification is based on animus where gov's only interest in denying a benefit or imposing a burden on a group of people is dislike of the group E.g., age, disability, wealth, economics

Question 39

Takings Clause

Answer 39

The 5th Amend. prohibits govt. from taking private property without providing just compensation to the owner and/or occupant Govt. may take private property for “public use”; taking can be possessory (i.e., physical) or regulatory (see below) Property includes personal property and intangible property Applies to govt. action that significantly damages property or its use

Question 40

Takings Clause Analysis

Answer 40

To determine if a taking is constitutional, ask: 1) Has there been a taking? — two types of takings: a) Possessory taking — govt. takes or occupies physical property Govt. may take private property for private development b) Regulatory taking — govt. action that adversely affects property value; whether taking occurs depends on extent of economic interference: --Denial of all economic value — taking; requires compensation --Denial of nearly all value requires balancing test— a) depends on the gov interest, b) diminution in value to the owner, and b) substantial interference with owner’s investment expectations ---*usually no taking 2) Is the taking for public use? — taking is for public use if govt. has a reasonable belief the taking will benefit the public (low standard--aesthetics count) -->Use will be viewed as benefitting public as long as it is rationally related to some legitimate public purpose 3) Is just compensation paid? — measured in terms of loss to owner --Measured by fair market value of property at time of taking and the loss to the owner (not gain to gov)

Question 41

Takings Clause & States

Answer 41

Takings Clause has been incorporated by 14th Amendment by SCOTUS

Question 42

Free Speech Framework

Answer 42

The 1st Amend. protects freedom of expression, including freedom of speech, of the press, of assembly, and of association 14th Amendment incorporates it to the states Speech = expression

Question 43

Levels of Scrutiny on Protected Speech

Answer 43

where protected speech is at issue, the level of scrutiny depends on whether the speech restriction is content-based Content-based restriction — strict scrutiny Content-neutral restriction — intermediate scrutiny

Question 44

Content-based restriction scrutiny

Answer 44

strict scrutiny: It is presumptively unconstitutional to place burdens on speech because of its content. Gov must show the regulation is necessary to achieve a compelling gov purpose. Occurs where govt. seeks to restrict speech b/c of its content (i.e., based on the subject matter or viewpoint)

Question 45

Content-neutral restriction scrutiny

Answer 45

intermediate scrutiny: must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary (or must be narrowly tailored) to further those interests Occurs where a govt. restriction applies to all expression regardless of the content or viewpoint (time/place/manner regulations)

Question 46

Freedom of the press

Answer 46

press has a right to publish matters of public concern; any restriction or punishment must be narrowly tailored to further a state interest of the highest order (essentially strict scrutiny)

Question 47

Vagueness

Answer 47

a law is unconstitutionally vague if a reasonable person cannot tell whether speech is prohibited or permitted E.g., law prohibiting people from assembling and conducting themselves “in a manner annoying to passersby” is unconstitutionally vague b/c a reasonable person must guess as to what behavior is punishable

Question 48

Overbreadth

Answer 48

a law is overbroad if it regulates substantially more speech than the Const. allows to be regulated 1) An overbroad law restricts unprotected speech, but in doing so also restricts protected speech E.g., law prohibiting all “live entertainment” may validly restrict obscenity, but also invalidly prohibits protected speech in concerts or theater 2) If a speech restriction is overbroad, it cannot be enforced against anyone, even one whose speech is not protected B/c remedy is severe, facial invalidation only justified if unconstitutional applications are realistic and substantially disproportionate to statute's lawful sweep

Question 49

Unprotected or lesser-protected speech

Answer 49

Some categories of speech receive lesser or no 1st Amend. protection E.g., obscenity, commercial speech, incitement; analyze lesser-protected speech restrictions under the appropriate test given the type of speech

Question 50

Lesser Protected Speech - Incitement

Answer 50

ncitement of imminent unlawful activity, fighting words, and true threats are categories of speech that may be punished and restricted Incitement of imminent unlawful activity Test — govt. may punish speech if: 1) There is a substantial likelihood the speech will bring about imminent illegal activity; and 2) The speech is aimed at causing imminent illegality Note — this test, often referred to as the “Clear & Present Danger test,” is difficult to satisfy; any law aimed at restricting incitement must be narrowly tailored

Question 51

Lesser Protected Speech - Fighting Words

Answer 51

Govt. may punish speech if it is likely to cause an immediate violent response against the speaker Note—fighting words statutes tend to be overbroad, vague, or deemed content-based and fail under strict scrutiny

Question 52

Lesser Protected Speech - True Threats

Answer 52

a threat communicated with the intent to place the recipient in fear of bodily harm is not protected speech Speaker must subjectively understand that their message is threatening. Recklessness works too.

Question 53

Lesser Protected Speech - Obscenity

Answer 53

Govt. may regulate obscenity, which is unprotected speech Test — expression is obscene if: 1) It appeals to prurient interests (sexually stimulating) -->Average person standard — how would the average person, applying community standards, view the material as a whole? 2) It is patently offensive in its sexual portrayal -->Material must offend community standards regarding portrayal of sexual matters -->Any law prohibiting obscene material must specify what is deemed patently offensive 3) Taken as a whole, the material lacks serious literary, artistic, political, or scientific value Determined based on national standard (not community standard, as is the case for first two prongs)

Question 54

Obscenity - Zoning

Answer 54

govt. may use zoning to regulate lewd speech or conduct if regulation is designed to combat secondary effects E.g., ordinance limiting strip clubs to a small city section can be valid if designed to combat a drop in property values or rise in crime

Question 55

Pornography

Answer 55

private possession is not punishable unless it involves child pornography Child pornography—gov may make private possession of child pornography a crime Child pornography = actual children are depicted Adults portraying children is not child pornography

Question 56

Profanity/Indecent Speech

Answer 56

generally protected Two exceptions — profane/indecent speech is punishable if either: 1) Speech is aired over broadcast media (not cable), or 2) Speech occurs in public schools

Question 57

Commercial Speech

Answer 57

Govt. may regulate some commercial speech subject to a test similar to intermediate scrutiny

Question 58

Unprotected Commercial Speech

Answer 58

Test — commercial speech is not protected if it is either: a) False, misleading, or deceptive, or b) Illegal or concerns illegal activity The govt. may regulate unprotected commercial speech

Question 59

Protected commercial speech

Answer 59

speech that concerns lawful activity and is not misleading Test — govt. can only regulate protected commercial speech if: 1) There is a substantial govt. interest in regulating the speech 2) The regulation directly advances that govt. interest; and 3) The regulation is not more extensive than necessary to serve that govt. interest A valid commercial speech regulation must be narrowly tailored, but not necessarily the least restrictive alternative

Question 60

Defamation

Answer 60

1st Amend. considerations arise when defamation involves a public official and/or a matter of public concern

Question 61

Public Figures/Officals/Matters of Public Concern

Answer 61

Public figure = one who has pervasive fame or notoriety or voluntarily assumes a central role in a particular public matter Public official = public office holder Matter of public concern = statement relates to a community interest or concern (includes national interests)

Question 62

Additional Requirements for Defamation of Public Figure/Official/Public Concern

Answer 62

P must prove: 1) Falsity — P must prove the statement was false 2) Fault — P must prove D was at fault; standards differ for public vs. private figures: ---Public official or figure — actual malice standard (knowledge of falsity or reckless disregard as to truth) --Private figure — negligence of the statement’s veracity

Question 63

Damages for Defamation

Answer 63

Public figures or officials—P can collect compensatory damages and possibly punitive damages Private figures — damages for actual injury only; P must prove actual malice for compensatory or punitive damages

Question 64

Speech in Public Forums

Answer 64

Public forums are govt. property that the govt. is constitutionally required to make available for speech (e.g., sidewalk, park) Regulations must be content-neutral

Question 65

Test for public forum restrictions

Answer 65

To be upheld, the restriction must: 1) Be content-neutral --I.e., only regulates time, place, or manner of speech --If the restriction is content-based, strict scrutiny applies 2) Be narrowly tailored to serve an important govt. purpose 3) Leave open adequate, alternative channels of communication. -->can't use a bullhorn but can hand out fliers --Does not have to be the least-restrictive alternative Permit fees that vary depending on the type of speech are content-based and unconstitutional

Question 66

Designated public forums

Answer 66

govt. properties that govt. opens for speech on limited basis (practice or policy) E.g., public school facilities open after school for use by social, civic, or recreation groups Test—same rules as public forums (e.g., content-neutral; strict scrutiny), but only when property is open for speech

Question 67

Limited public forums

Answer 67

govt. properties not historically open for speech and has opened only for specific speech activity E.g., school gym used for a debate on a specific community issue Test—Can reserve for intended use. Same rules as nonpublic forum 1) Reasonably related to some legitimate purpose; and 2) Viewpoint neutral Content-neutrality not required — govt. can allow speech on some subjects but not others, yet if it opens speech to a subject it cannot limit the speech to only one view E.g., must be viewpoint neutral and reasonably related to legitimate govt. purpose

Question 68

Non-public forum

Answer 68

govt. property that can be closed to speech (e.g., military bases, airports) Test — govt. can regulate speech to reserve property for its intended use if the regulation is: 1) Reasonably related to some legitimate purpose; and 2) Viewpoint neutral Content-neutrality not required — govt. can allow speech on some subjects but not others, yet if it opens speech to a subject it cannot limit the speech to only one view

Question 69

Prior Restraints

Answer 69

Prior restraints involve a court order or other ban on speech or publication before it occurs. Often arises as court order/injunction preventing speech Strict scrutiny applies — prior restraints are difficult to uphold Requirements — to be valid, a prior restraint requires: 1) Govt. interest — there must be at least some significant govt. interest justifying the restraint (i.e., a special societal harm) -->National security may be a sufficient harm/govt. interest, but the harm must be more than theoretical 2) Procedural safeguards — for those whose speech is restrained -->Safeguard must ensure restraint is narrow, reasonable, and definite; and provides for prompt, final judicial determination

Question 70

Permits/Licensing

Answer 70

govt. may require licenses or permits for speech only if it has a reasonable justification for doing so 1) Requirements for permit/license must be similar to a “rubber stamp” process and must provide review for denied permits/licenses 2) P can challenge a denial on constitutional grounds, even if violated

Question 71

Symbolic Speech

Answer 71

Symbolic speech refers to expressive or communicative conduct (i.e., conduct intended to convey a message) Test — govt. can regulate symbolic speech if: 1) The regulation furthers an important govt. interest; 2) That govt. interest is unrelated to suppression of the message; and -->If the restriction is aimed at speech more than conduct, it is likely unconstitutional 3) The impact on speech is no greater than necessary to further the important govt. interest

Question 72

Government Speech

Answer 72

Govt. speech cannot be challenged as violating the Free Speech Clause

Question 73

Compelled Speech

Answer 73

Freedom to speak includes freedom not to speak Govt. cannot compel a person to express a message with which the person disagrees (e.g., govt. cannot require people to salute the flag) Govt. may use tax revenue to express a govt. message even if the taxpayer disagrees with the message Public accommodation laws (i.e., laws that prohibit some forms of discrimination when businesses offer goods and services to the public) sweep too broadly when they compel speech

Question 74

1st Amendment - Freedom of Religion

Answer 74

Religion is protected under the Free Exercise Clause and the Establishment Clause, both under the 1st Amend. Incorporated to the states by 14th Amend.

Question 75

Free Exercise Clause

Answer 75

Free Exercise Clause — prohibits govt. from punishing someone solely on the basis of that person’s religious beliefs or conduct Govt. action must be necessary to achieve a compelling interest, but Court has never upheld religious punishment under this standard Limitation — only applies if the purpose of a govt. act is to limit or interfere with religious practice or beliefs Acts of general applicability (i.e., not designed to regulate or interfere with religion) are valid

Question 76

Establishment Clause

Answer 76

prohibits govt. acts that establish/sponsor/coerce religion or give preference to one religion over another Govt. generally must remain neutral toward religion and may not coerce individuals to exercise (or refrain from exercising) religion --Generally, govt. powers may not be delegated to or shared with religious institutions Govt. action that is not neutral may still be permissible if supported by history and the Founding Fathers’ intent

Question 77

Religious Beliefs

Answer 77

a) Traditional religions b) Beliefs that play a similar role in the lives of the believers Courts won't ask you to prove your beliefs are true but will examine whether your beliefs are genuine.

Question 78

Free Exercise - Neutral Laws of General Applicability

Answer 78

The Free Exercise Clause cannot be used to challenge a neutral law of general applicability. In other words, the Free Exercise Clause cannot be used to challenge government action unless the action was specifically designed to interfere with religion.

Question 79

Free Exercise - Discriminatory Laws

Answer 79

A law or other government conduct that discriminates on the basis of religion is subject to strict scrutiny. A law is discriminatory if it is either: *Not neutral on its face (that is, the law is motivated by a desire to interfere with religion or the law expressly provides favored or disfavored treatment based on religious belief, conduct, or status) OR --Ex: laws that do not allow public funding for religious schools *Facially neutral but not generally applicable (that is, the law is silent with regard to religion but, by design, it targets religion generally or a religion in particular)

Question 80

Free Exercise & Exemptions

Answer 80

A law that gives government officials discretion to grant exemptions (even if they never use it) from the law is not generally applicable. Thus, such laws or programs may not discriminate and refuse to grant exceptions based on religious conduct unless the discrimination passes strict scrutiny.

Question 81

Establishment Clause - Test

Answer 81

The current test focuses on the rule that government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) their religion. The Court has not clearly defined what constitutes coercion, but it has said that the test is based on the Framers’ intent in 1791.

Question 82

Establishment Analysis

Answer 82

No coercion Neutrality towards religion No Sect-based preferences Interpret by reference to history & traditions --clerical prayers were always ok then its ok