Constitutional Law

Question 1

Justiciability

Answer 1

Whether a lawsuit can actually be adjudicated by a federal court as a case or controversy.

Question 2

What Determines if There is a Case or Controversy

Answer 2

(1) What it requests (no advisory opinions)
(2) When it is brought (must be ripe and not moot)
(3) Who brings it (someone with standing)

Question 3

Advisory Opinions

Answer 3

Federal courts may not render advisory opinions, which lack: (1) an actual dispute between adverse parties or (2) any legally binding effect on the parties

Question 4

Ripeness - Rule

Answer 4

Federal courts may only decide controversies that are ripe for judicial review. Factors considered are (1) fitness of the issues for judicial decision (generally not fit for judicial decision if it relies on uncertain or contingent future events that may not occur as anticipated) and (2) the hardship to the parties of withholding court consideration

Question 5

Ripeness - Application

Answer 5

Pre-enforcement review of laws (declaratory judgment actions) are generally not ripe, unless: (1) substantial hardship in absence or view and (2) issues and records are fit for review (i.e., issues are more legally based than factually based)

Question 6

Mootness - Rule and Exceptions

Answer 6

Federal courts may only decide live controversies (i.e., P suffers ongoing harm)
Exceptions: Though injury has passed, not moot if: (1) injury is capable of repetition yet evade review because of inherently limited duration or (2) Defendant voluntarily ceases activity, but may restart at will, or (3) In class actions, one P suffers ongoing injury (holdout P)

Question 7

Mootness - Application

Answer 7

Controversy is live if: (1) In suit for injunctive or declaratory relief, challenged law or conduct continues to injury or (2) In suit for damages, P was not made whole

Question 8

Standing

Answer 8

P must have standing to sue. Requirements:

(1) Injury
(2) Causation
(3) Redressability

Question 9

Injury - What Constitutes Injury and Exceptions

Answer 9

Almost any harm that is concrete and particularized, NOT ideological objections or generalized grievances
*Requires both a particularized injury (an injury that affects the plaintiff in a personal and individual way) and a concrete injury (one that exits in fact)
(Citizen may not sue to force government to obey laws; Taxpayer may not sue over how government spends tax revenues; Official proponents of ballot initiative may not defend enacted measures)
Exceptions: Taxpayer challenge to own tax liability (particularized); Congressional spending in violation of Establishment Clause (but not executive spending)

Question 10

Injury - When Injury Must Occur and Who Must Suffer Injury

Answer 10

When: must have already occurred or will imminently occur (injunctive/declaratory relief: must show likelihood of future harm)
Who: must be personally suffered by P rather than those not before the court (no third-party standing)

Question 11

Third-Party Standing Exceptions

Answer 11

Close Relationship (e.g., parent on behalf of child): (1) P and 3P injured, (2) 3P unable or unlikely to sue, and (3) P can adequately represent 3P
Organizations (on behalf of members): (1) org and member have standing, (2) members’ injury related to org’s purpose, and (3) members’ participation not required (i.e., not seeking individualized damages)
Free Speech Overbreadth: (1) Substantial overbreadth in terms of law’s legitimate to illegitimate sweep, and (2) not commercial speech

Question 12

Causation

Answer 12

P must show that the injury is fairly traceable to D

Question 13

Redressability

Answer 13

P must show that a favorable court decision can remedy the harm (e.g., through money damages or an injunction)

Question 14

Supreme Court Review - Final Judgment Rule

Answer 14

USSC only hears case after there has been a final judgment by the highest state court capable of rendering a decision, a federal court of appeals, or (in special statutory situations) a three-judge district court

Question 15

Supreme Court Review - Independent and Adeqaute State Grounds (IASG)

Answer 15

USSC will not review a federal question if the state court decision rests on an independent (separate) and adequate (sufficient) state law ground.
The state law grounds are adequate if they are fully dispositive of the case.
They are independent if the decision is not based on federal case interpretations of identical federal provisions.

Question 16

Federal Legislative Power - Art. I, Sec. 8

Answer 16

Limit: enumerated powers. unlike states, Congress has not general police power to pass laws (except for federal land, Indian reservations, and D.C.)
Necessary and Proper Clause: Not a basis of legislative power. Allows Congress to choose any rational means to carry out an enumerated power, as long as means are not prohibited by the Constitution

Question 17

Congress’ Enumerated Powers - Taxing and Spending

Answer 17

Congress may tax and spend to provide for the general welfare (includes any public purpose not prohibited by the Constitution, even if not within an enumerated power)
Spending conditions: “strings” must relate to purpose of spending and not violate Constitution and cannot be unduly coercive

Question 18

Congress’ Enumerated Powers - Interstate Commerce

Answer 18

(broadest and most common basis for regulation) IC includes: channels of IC (highways, waterways, telephone lines, internet); instrumentalities of IC (planes, trains, automobiles, persons in IC); and substantial effect on IC in aggregate (even purely local activities)
Limits: (1) noneconomic activity in area traditional regulated by the states and (2) compelling participation in commerce

Question 19

Congress’ Commerce Power v. Enforcement Power

Answer 19

Commerce power allows Congress to INDIRECTLY ban PRIVATE discrimination. But Congress may DIRECTLY ban STATE discrimination under 14A power to enforce the guarantee of equal protection

Question 20

Congress’ Enumerated Powers - War and Related

Answer 20

Constitution gives Congress Power to declare war, raise and support armies, and provide for and maintain a navy

Question 21

Congress’ Enumerated Powers - Other Powers

Answer 21

Citizenship, bankruptcy, federal property, patents and copyrights, post offices, coining money, territories and D.C.

Question 22

Congress’ Delegation of Power

Answer 22

To agencies: may broadly delegate legislative powers as long as some intelligible principal guides exercise of delegated powers
To President: no line-item veto. rationale - violates bicameralism and presentment (giving bill in its entirety to the President to sign or veto)
To Congress: no legislative veto to void duly enacted laws without bicameralism and presentment (i.e., can’t give itself future power to alter/amend/repeal legislation short of passing another law)

Question 23

Federal Executive Power - Domestic Powers

Answer 23

Enforcement: President has power (and duty) to execute laws
Inherent (implied) Presidential powers (Supreme Court generated scheme/tests):
Highest where it is authorized by Congress
Lowest where prohibited by Congress
Gray area where neither

Question 24

Federal Executive Power - Foreign Powers

Answer 24

Congress alone has power to declare war.
President as Commander in Chief has broad discretion to deploy troops internationally to protect American lives and property (challenges are likely non-justiciable as a political question)

Question 25

Federalism - 10th Amendment

Answer 25

10A: powers not granted to US or prohibited to the states, are reserved to the states or the people General police powers: reserved to the states (local health, safety, and economic regulations receive RATIONAL BASIS review unless they burden a fundamental right or involve a suspect or quasi-suspect classification) Anti-commandeering principle: Congress cannot compel states to enact or administer federal programs

Question 26

Federalism - Supremacy Clause

Answer 26

Supremacy Clause of Art. VI makes federal law (Constitution, statutes, regulations, treaties, executive agreements) preempt inconsistent (conflicting) state and local laws

Question 27

Federalism - Preemption

Answer 27

Express: Congress expressly says so Implied: (1) Conflict (impossible to follow both federal and state law OR state law impedes federal law; (2) Field (extensive federal regulation indicates Congressional intent to "occupy the field")

Question 28

Dormant Commerce Clause

Answer 28

("Negative Commerce Clause") prohibits state laws that discriminate against or unduly burden interstate commerce

Question 29

Privileges and Immunities, Art. IV

Answer 29

prohibits state laws that discriminate against out-of-state US citizens (in favor of in-state citizens) regarding: (1) important commercial activities (earning livelihood) OR (2) fundamental rights

Question 30

Privileges or Immunities of 14th Amendment

Answer 30

Fundamental right to interstate travel (right to enter/leave a state and equal treatment once become permanent residence of state) NO fundamental right to international travel Right to petition the federal government

Question 31

Constitutional Framework for Protection of Individual Liberties - Application and Incorporation

Answer 31

Except for 13A ban on slavery, Constitution applies ONLY to government action, not private conduct. Most protections have been incorporated against (applied to) states and their political subdivision through the Due Process Clause of 14A

Question 32

State Action

Answer 32

state law; state officials acting officially (even if unlawfully) Public Function: state action exists when private party performs function done by government traditional AND exclusively. State Involvement: significant state involvement in challenged private conduct may count as state action (e.g., assistance, encouragement, supervision, entwinement, or approval)

Question 33

Procedural Due Process - Provisions and General Rule

Answer 33

Provision: 5A DPC applies to FEDERAL government 14A DPC applies to STATES AND LOCALITIES General rule: individual has right to a fair process when government acts to deprive of life, liberty, or property "Deprivation": intentional (or perhaps reckless) rather than negligent

Question 34

Procedural Due Process - Define "Liberty"

Answer 34

``` Physical freedom (e.g., institutionalization, deportation) Constitutional rights (e.g., parental rights) NOT: mere harm to reputation ```

Question 35

Procedural Due Process - Define "Property"

Answer 35

``` Real and personal, tangible and intangible Government entitlement (benefit) to which an individual has a reasonable expectation of continued receipt (e.g., welfare benefits, public education, government licenses, tenured employment or employment for a term of years, but NOT at-will employment) ```

Question 36

Procedural Due Process - If Deprived, What Process was Due?

Answer 36

(1) Notice: reasonable calculated to inform person of deprivation (2) Hearing (pre-deprivation generally preferred unless impracticable) Balancing test determines the nature and extent of procedures, considering: (a) importance of the interest to the individual, (b) risk of error through procedures used, (c) accuracy gained from additional procedures, (d) burden on government (e.g., inefficiency and costs) (3) Neutral Decision-maker: no actual or serious of bias

Question 37

Substantive Due Process - Overview

Answer 37

Enumerated rights are specified in Constitution or Amendments. Unenumerated rights are substantive component of liberty protected by 14A DPC against states/localities and 5A DPC against federal government. A enumerated/unenumerated right is FUNDAMENTAL if it is: (1) deeply rooted in this Nation's history and tradition (most commonly used) or (2) implicit in the concept of ordered liberty (right is essential for a free society) or (3) identified as fundamental by reasoned judgment and new insight (most recent test)

Question 38

Due Process and Equal Protection Analysis

Answer 38

Denying everyone a fundamental right: Substantive DP ONLY | Denying some a fundamental right: Substantive DP AND Equal Protection

Question 39

Unenumerated Fundamental Rights - Marriage (Divorce)

Answer 39

Substantial interference with right to marry is necessary to trigger STRICT SCRUTINY. Interracial Marriage: bans on interracial marriage trigger and fail strict scrutiny under Due Process and Equal Protection Analysis. Same-Sex Marriage: fundamental right to marry extends to same sex couples, denial of which violates Due Process and Equal Protection. *Reasonable requirements (majority age, proper identification) to protect rather than hinder right to marry are upheld under RATIONAL BASIS

Question 40

Unenumerated Fundamental Rights - Interstate Travel

Answer 40

(14A Privileges or Immunities) Right to enter and leave a state Equal treatment once become resident of state (residency requirement to be eligible for welfare benefits they would've received in prior state of residence is UNCONSTITUTIONAL) NO fundamental right to international travel

Question 41

Unenumerated Fundamental Rights - Voting

Answer 41

RATIONAL BASIS for reasonable requirements that protect rather than right to vote (age, residency, citizenship). STRICT SCRUTINY for onerous or potentially discriminatory restrictions (poll tax, literacy test)

Question 42

Right to Vote - One Person, One Vote Principle

Answer 42

``` State and local representatives (including state senators): Equal Protection requires population of voting districts be SUBSTANTIALLY EQUAL (16% variance was upheld in light of state interest in preserving political subdivisions and communities and geographic factors. Below 10% is presumptively valid.) Federal representative (not US Senators): Art. I requires population of congressional districts within a state to be as close to MATHEMATICALLY EQUALITY as practicable (0.7% variance has been invalidated) ```

Question 43

Right to Vote - Racial and Political Gerrymandering

Answer 43

Racial Gerrymandering: STRICT SCRUTINY is race was predominant factor Political Gerrymandering: Non-justiciable as a political question

Question 44

Abortion - What is NOT an Undue Burden

Answer 44

- Requiring licensed physician - Requiring informed consent (nature and risk of abortion and childbirth, gestational age) - Requiring 24 hour waiting period after informed consent - Requiring parental notification or consent or minor (with judicial bypass option) - Banning "partial-birth" abortions - Not publicly funding abortions

Question 45

Abortion - What is an Undue Burden

Answer 45

- Requiring spousal notification or consent - Requiring extensive medical recordkeeping and reporting (not directed at maternal health, not sufficiently protective of privacy) - Requiring physician admitting privileges at nearby hospital - Requiring outpatient surgical-center standards

Question 46

Unspecified Rights

Answer 46

Private consensual adult sexual intimacy: no legitimate state interest in criminal ban on same-sex marriage Refuse medical treatment: competent adult may refuse life-saving medical treatment (state may require clear and convincing evidence of individual's wish and may prevent family members from terminating treatment); state may compel vaccination against contagious diseases. Bear arms: 2A protects rights of individual at least have handgun for self-defense

Question 47

Equal Protection Clause - Provisions and Trigger

Answer 47

Provisions: 14A EPC applies to STATES AND LOCALITIES, 5A DPC has "Equal Protection component" that applies to FEDERAL government. Trigger: government (by law, regulation, policy, or conduct) treating people differently Analysis: (1) classification and (2) level of review

Question 48

Equal Protection Clause - Classifications

Answer 48

A law triggers heightened scrutiny (INTERMEDIATE OR STRICT) if it: (1) FACIALLY DISCRIMINATES against a group falling within a suspect or quasi-suspect classification or (2) there is a DISPARATE IMPACT on a group falling within a suspect or quasi-suspect classification AND some evidence of DISCRIMINATORY INTENT against that group

Question 49

Equal Protection Clause - Classifications (RATIONAL BASIS)

Answer 49

- age - disability - wealth - alienage classifications by Congress - alienage classifications by state related to democratic self governance (i.e., voting, hold elective office, being police officers or public school teachers; NOT notaries public) - all other classifications

Question 50

Equal Protection Clause - Classifications (INTERMEDIATE SCRUTINY)

Answer 50

- gender - non-martial children - undocumented alien children (maybe)

Question 51

Equal Protection Clause - Classifications (STRICT SCRUTINY)

Answer 51

- race - national origin - alienage classifications by state in general - denial of fundamental right to some

Question 52

Equal Protection Clause - Quasi-Suspect Classification and Intermediate Scrutiny

Answer 52

Gender: important state interest requires EXCEEDINGLY PERSUASIVE JUSTIFICATION, not mere role stereotype Nonmarital ("illegitimate") children: laws that DISCRIMINATE AGAINST all nonmartial children are likely prejudicial and invalid. But laws that DISTINGUISH AMONG nonmarital children are more likely to be upheld. Undocumented Alien Children: UNCLEAR TEST. May be intermediate scrutiny, but the safest bet is use RATIONAL BASIS. A law denying undocumented alien children public education was invalidated, but the USSC did not distinguish which test they used.

Question 53

Takings

Answer 53

Federal government (5A Taking Clause) and states (14A DP) may not take private property unless: (1) public use AND (2) just compensation. Property: -real personal property (including right to possess, use, dispose, etc.) -some intangible property (i.e., interest on attorney trust accounts, trade secrets. NOT welfare benefits)

Question 54

Takings - Physical Taking

Answer 54

Confiscation Regular or permanent occupation (temporary occupation: may be takings, depending on degree of invasion, duration, government intention and foreseeability with respect to result, character of property and interference with use Development Exception: traditional conditions on property development (e.g., streets, utility easements) are NOT taking if benefits are roughly proportional to burdens Emergency Exception: Taking LESS LIKELY to be found if pursuant to public emergency such as war (even if complete and permanent deprivation)

Question 55

Takings - Regulatory Taking

Answer 55

Bright-line rule: Taking if regulation on use does not merely diminish property value but leaves NO ECONOMICALLY VIABLE USE Ad-hoc analysis: Maybe (but difficult to claim) a taking considering: (1) economic impact of regulation, (2) interference with investment-backed expectations, and (3) character of government action.

Question 56

Takings - Public Use

Answer 56

Any legitimate public purpose, i.e., any purpose that government reasonably believes will benefit public (public health, safety, welfare, etc.). RATIONAL BASIS analysis, government will likely always win

Question 57

Takings - Just Compensation

Answer 57

Fair market value at TIME OF TAKING (benefit to government is irrelevant)

Question 58

Contracts Clause

Answer 58

"No State shall...pass any...law impairing the Obligation of Contracts." Applies only to STATE AND LOCAL laws (does not apply to federal government or judicial decisions)

Question 59

Contracts Clause - Tests

Answer 59

``` Private Contracts: substantial impairment of existing rights invalid unless: (1) legitimate or significant purpose AND (2) reasonable or appropriate means Public Contracts (contract where the government is a party): heightened scrutiny (INTERMEDIATE OR STRICT SCRUTINY) ```

Question 60

Ex Post Facto Laws

Answer 60

Rule: Neither STATE not FEDERAL government may pass legislation that retroactively alters criminal liability Categories: -Criminalize act that was innocent when done -Make crime greater than when committed -Set greater punishment than when act was done -Reduce evidence required to convict from what was required at time of act

Question 61

Freedom of Speech - What is Speech

Answer 61

Words, symbols, and expressive conduct (i.e., flag burning, ballet, nude dancing, black arm band) Expressive conduct: conduct that is inherently expressive or that (1) intended to convey a message AND (2) reasonably likely to be perceived as conveying

Question 62

Freedom of Speech - What Speech is Protected v. Unprotected

Answer 62

Unprotected: incitement, fighting words, true threats, obscenity, child pornography, defamation with actual malice, commercial speech that is false, misleading, or illegal Partly Protected: defamation about public officials, public figures, or matters of public concern and commercial speech that is not false, misleading, or illegal Protected: all other speech

Question 63

Freedom of Speech - Incitement

Answer 63

NOT protected speech Test: Advocacy of lawless action that is (1) intended to produce imminent lawless action AND (2) likely to produce imminent lawless action. Mere advocacy of lawlessness IS protected speech

Question 64

Freedom of Speech - Fighting Words

Answer 64

NOT protected speech | Test: words likely to provoke an immediate violent response

Question 65

Freedom of Speech - True Threats

Answer 65

NOT protected speech Test: words intended to convey to someone a serious threat of bodily harm (perhaps reckless conveying such a threat suffices)

Question 66

Freedom of Speech - Obscenity

Answer 66

NOT protected speech Test: depiction of sexual conduct define by state law that taken as a whole, by contemporary community standards (1) appeals to the prurient interest in sex (turn you on?), (2) is patently offensive, AND (3) lacks serious social value by national standards. Mere nudity, soft-core porn, and "dirty words" are NOT obscene (are protected) Right to privacy extends to possession of obscenity at home, which may not be banned. Sexually explicit or indecent speech that is NOT obscene may nonetheless be subject to zoning ordinances to: protect child and unwilling adults from exposure, or to prevent neighborhood crime and decay. (ample alternate channels must exist for the speech)

Question 67

Freedom of Speech - Child Pornography

Answer 67

NOT protected speech Test: depiction of children engaging in sexual conduct, defined by state law, whether or not obscene. MUST be actual children (not virtual or adult actors). In-home possession may be banned (opposite of obscene material)

Question 68

Freedom of Speech - Defamation (Rule)

Answer 68

To promote robust public debate, 1A bars recovery under state defamation law for speech made without actual malice about public officials, public figures, or matters of public concern.

Question 69

Freedom of Speech - Defamation (Actual Malice)

Answer 69

must prove by clear and convincing evidence. Knowledge of falsity OR reckless disregard of the truth Defamation made with actual malice is NOT protected speech

Question 70

Freedom of Speech - Defamation (Public Official)

Answer 70

Holding or running for elective office (at any level) or public employees in positions of public importance (e.g., prosecutor, school principal, police officer) Defamation about public official is PARTLY protected

Question 71

Freedom of Speech - Defamation (Public Figures)

Answer 71

Assumed roles of prominence in society, achieve pervasive fame and notoriety, or thrust themselves in particular public controversies to influence their resolution Defamation about public figures is PARTLY protected

Question 72

Freedom of Speech - Defamation (Public Concern)

Answer 72

Matters important to society and democracy (can be at national, state, or local level) Defamation about public concerns is PARTLY protected

Question 73

Freedom of Speech - Defamation (Application)

Answer 73

For defamation claims, identify (1) type of plaintiff (public official, public figure, or private figure) AND (2) subject matter of the alleged defamation (public or private concern) Those will determine: -Whether the plaintiff must prove actual malice (in addition to proving state defamation elements), and -What damages plaintiffs may recover

Question 74

Freedom of Speech - Defamation (IIED and Other Torts)

Answer 74

Court has required actual malice for recovery under intentional infliction of emotional distress and other torts, at least where plaintiff is public figure or public official, or speech is on matter of public concern

Question 75

Freedom of Speech - Commercial Speech

Answer 75

Includes ads and promotions of product and services, brand marketing. Profit motive alone is insufficient. False, misleading, or illegal commercial speech is NOT protected, but all other commercial speech is PARTLY protected Test: INTERMEDIATE SCRUTINY - substantial government interest AND narrowly tailored (reasonable fit)

Question 76

Freedom of Speech - General Speech Restrictions

Answer 76

Content-Based: facially target certain topics or messages or are justified by reference to potential harms produced by certain topics or message Content-Neutral: do not target certain topics or message, and suppress speech for reasons unrelated to any topic or messages (often channels speech on basis of time, place, and manner)

Question 77

Freedom of Speech - Viewpoint-Based Restrictions

Answer 77

Content-based restriction that limits speech to one side of subjection (e.g., allowing "pro-choice" but not "pro-life" speech on abortion.

Question 78

Freedom of Speech - Speech Restrictions on Public Schools

Answer 78

``` Applies only to primary and secondary schools, not higher education. Personal Student Speech: CANNOT be censored absent evidence of substantial disruption. Exception: speech promoting illegal drug use does not require showing any disruption or credible threat of disruption. School Speech (including curricular or some extracurricular student speech): CAN be censored if reasonably related to legitimate pedagogical concern (educational purpose) ```

Question 79

Freedom of Speech - Speech Restrictions on Public Employment

Answer 79

Unprotected speech: private concern at workplace or public concern, but pursuant to official duties. Protected speech: private concern outside workplace or public concern, as citizen rather than pursuant to official duties, at or outside workplace. Test for Protected Public Employee Speech: balance speech value v. state interest in efficient and effective operation

Question 80

Freedom of Speech - Speech Restrictions on Political Patronage

Answer 80

Public employees may not be hired or fired based on political affiliation or expression. Exception: high-level policy-makers and adviser

Question 81

Freedom of Speech - Vagueness

Answer 81

Test: law is void for vagueness if persons of common intelligence cannot tell what speech is prohibited and what is permitted

Question 82

Freedom of Speech - Overbreadth

Answer 82

Test: law is invalid as overbroad if it prohibits a substantial amount of speech that the government may not suppress. *Third party standing is allowed (P whose speech may not be censored raises non-commercial speech claim on behalf of others whose speech may not be censored)

Question 83

Freedom of Speech - Prior Restraints

Answer 83

Definition: Licensing schemes (e.g., permits) or injunctions that prevent speech before it occurs, rather than punishing speech afterwards. Historically, prior restraints have been greatly disfavored. No special tests, but harder for government to win. Con-based prior restraints: very STRICT SCRUTINY Licensing systems must have sufficiently definite content-neutral standards to cabin discretion, as well as prompt judicial review of denials

Question 84

Freedom of Speech - Press, Expressive Associations, Corporations, and Unions

Answer 84

Press, expressive associations (e.g., political parties, NAACP, NRA), and corporations and unions (engaging in non-commercial speech, e.g., political advocacy) are generally treated the same as other speakers

Question 85

Freedom of Speech - Government Speech

Answer 85

Government speech is generally NOT subject to 1A. 1A DOES NOT constrain government from espousing whatever views and policies it wishes. 1A DOES constrains government's ability to compel private parties to convey message

Question 86

Freedom of Religion - Free Exercise Clause (Government Inquiry)

Answer 86

To decide religious claims, government (including courts) may inquire into the sincerity of religious beliefs, but NOT their truth

Question 87

Freedom of Religion - Free Exercise Clause Test

Answer 87

``` Discriminatory laws (not neutral facially with respect to religious belief, conduct, or status OR not generally applicable but targeted at religion generally or a religion in particular)= STRICT SCRUTINY Neutral laws of general applicability = NOT subject to Free Exercise Clause (Exception: FEC exempts religious organizations from neutral employment laws in hiring or firing minsters, including teachers at religious schools) ```

Question 88

Freedom of Religion - Establishment Clause (Neutrality Test)

Answer 88

Note: Court has not settle on a single test, so government may violate under one or more tests Test: Government must remain neutral with respect to religion, neither favoring nor disfavoring it

Question 89

Freedom of Religion - Establishment Clause (Coercion Test)

Answer 89

Note: Court has not settle on a single test, so government may violate under one or more tests Test: Government may not directly or indirectly individuals to exercise (or refrain from exercising) religion

Question 90

Freedom of Religion - Establishment Clause (Neutrality Test Examples)

Answer 90

Neutral: providing police and fire protection to churches on same basis as to secular community Favor: exemption of religious publications, but not others, from sales tax Disfavor: allow all student groups, except religious ones, after-hours access to school meeting rooms

Question 91

Freedom of Religion - Establishment Clause (Coercion Test Examples)

Answer 91

Direct: fines for not attending church Indirect: providing for clergy invocation and benediction at middle school graduation (but town meeting with opening prayer by open selection process)

Question 92

Freedom of Religion - Establishment Clause (Lemon Test)

Answer 92

Note: Court has not settle on a single test, so government may violate under one or more tests Test: A law does not violate the Establishment Clause if: (1) primary purpose is secular, (2) primary effect does not advance or inhibit religion, and (3) avoids excessive entanglement between government and religion

Question 93

Freedom of Religion - Establishment Clause (Lemon Test Examples)

Answer 93

Purpose: posting copies of Ten Commandments on walls of public school classrooms has a primarily religious purpose, despite legislative statement to contrary Effect: reciting Lord's Prayer at beginning of public school day Entanglement: micromanagement and constant monitoring by public school officials to ensure that special education teachers sent to parochial schools do not teach religion

Question 94

Freedom of Religion - Establishment Clause (Endorsement Test)

Answer 94

Note: Court has not settle on a single test, so government may violate under one or more tests Test: From standpoint of reasonable and informed observer, government must not appear to endorse or disapprove of religion, making it seems relevant to a person's standing in the political community

Question 95

Freedom of Religion - Establishment Clause (Endorsement Test Examples)

Answer 95

Endorsement: lone display of nativity scene on courthouse steps Non-endorsement: display of creche surrounded by Santa, reindeer, elephant, clown, candy cane, Teddy bear, and other non-religious holiday symbols

Question 96

Freedom of Religion - Establishment Clause (History and Tradition Approach)

Answer 96

Sometimes the Court sets aside the above principles and finds that a state religious display or practice is a tolerable acknowledgement of the role religion has played in the history and tradition of the nations. Note: helps if the display or practice has been around for a while or is in historical setting

Question 97

Freedom of Religion - Establishment Clause (History and Tradition Approach Examples)

Answer 97

- Prayer opening legislative session or city council meeting - Four-decade-old Ten Commandments on Texas capitol grounds surrounded by other displays of historical or societal signficance - Large WWI memorial cross on median

Question 98

Supreme Court Review - Abstention

Answer 98

Unsettle question of state law: a federal will temporarily abstain from revolving a constitutional claim when the disposition rests on an unsettled question of state law. Pending state proceedings: federal courts will not enjoin pending state criminal proceedings, except in cases of proven harassment or prosecutions taken in bad faith

Question 99

Supreme Court Review - Political Questions

Answer 99

will not be decided. these are issues (1) constitutionally committed to another branch of government or (2) inherently incapable of judicial resolution (Examples: challenges based on the "Republican Form of Government" Clause of Art. IV; challenges to congressional procedures for ratifying constitutional amendments; the President's conduct of foreign policy; and partisan legislative apportionment (gerrymandering))

Question 100

Supreme Court Review - 11th Amendment Limits on Federal Courts

Answer 100

11A prohibits federal courts from hearing a private party's or foreign government's claims against a state government