Final Exam Flashcards
(102 cards)
1
Q
What does the Constitution generally protect from?
A
The Constitution generally protects against wrongful conduct by the government, not private parties.
2
Q
Who does Due Process Clause of 5a apply against?
A
Federal Government
3
Q
Who does Due Process Clause of 14a apply against?
A
The states
4
Q
Equal protection clause prohibits?
A
fed & state gov discrimination against individuals who are similarly situated to others
5
Q
Prerequisite for triggering constitutional protections
A
State action or federal action
6
Q
Private parties actions are effectively attributable to the state, such that their actions can be treated as the state’s actions, when:
A
- Trad’l gov function: When a private party is exercising a traditional gov function
- Gov. Entanglement
7
Q
How to measure government entanglement?
A
NEXUS TEST: An action of a private entity will be treated as state action if there is a sufficiently close nexus between the state and the challenged action of the private entity so that the action of the latter may be fairly treated as that of the state itself.
8
Q
Standards of review under equal protection analysis
A
Rational basis test
–(rational basis with teeth in rare situations)
Intermediate scrutiny
Strict scrutiny
9
Q
Rational basis test
A
o Some legitimate governmental purpose; and
o A rational relationship between the identified purpose and the regulatory means used
10
Q
Rational basis burden of proof
A
o Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational.
11
Q
Rat’l basis relationship to legislature?
A
o Extreme deference to the legislature – assume that legislative preferences and expertise should receive wide leeway
12
Q
Rat’l basis applicability
A
o The rational basis standard is used in all cases in which one of the higher standards (intermediate or strict scrutiny) does not apply. It is used when a non-suspect class is at issue.
13
Q
Rat’l basis with teeth?
A
o Some classifications, although nominally subject to rational basis review, in practice receive heightened scrutiny.
TEST:
1) whether gov interest is truly legitimate
2)whether measure is so grossly over and/or under inclusive that gov must not have had legitimate interest
triggered when court senses irrational prejudice
14
Q
Rat’l basis with teeth classifications
A
Sexual orientation
Developmental disability
When gov acts out of Animus
15
Q
Animus definition
A
When the government has acted out of animus (a bare desire to harm an unpopular group) toward or fear of a particular group, that action—even if not involving a suspect or a quasi-suspect classification—will be searchingly reviewed and may be struck down even under a rational basis test.
16
Q
Non suspect classes
A
Age
Poverty
Sexual orientation
17
Q
What is needed to trigger strict or intermediate scrutiny?
A
o To trigger strict or intermediate scrutiny, there must be discriminatory intent on the part of the government.
o The fact that legislation has a disparate effect on people of different races, genders, etc., without intent, is insufficient.
18
Q
How can discriminatory intent be shown?
A
o Discriminatory intent can be shown facially, as applied, or when there is a discriminatory motive.
19
Q
Facial discrimination
A
- A law that, by its very language, creates distinctions between classes of persons is discriminatory on its face.
- Example: An ordinance states that only males will be considered for a city’s training academy for firefighters.
20
Q
Discriminatory application
A
- A law that appears neutral on its face may be applied in a discriminatory fashion. If the challenger can prove that a discriminatory purpose was used when applying the law, then the law will be invalidated.
- Example: A city’s ordinance concerning the police academy says nothing about gender, but in practice only men are considered for admission.
21
Q
Discriminatory motive
A
- Proof of discriminatory motive is required to show a violation of the Equal Protection Clause. Arlington Heights
- Establishing a discriminatory purpose among permissible purposes shifts the burden to the defendant to show that the same decision would have resulted absent the impermissible motive.
22
Q
Intermediate scrutiny
A
The measure/law must be substantially related to an important governmental interest
23
Q
Intermediate scrutiny burden of proof
A
state has the burden to prove an important government objective and that the means used is substantially related to attaining the objective
24
Q
Intermediate scrutiny applicability
A
Applies to quasi-suspect classifications
o Gender discrimination: there must be an exceedingly persuasive justification for the classification, which might bring the standard closer to strict scrutiny
o Illegitimate children discrimination
25
Strict scrutiny test
o Does the government have a compelling interest to justify the measure?
o Is the measure narrowly tailored to achieve that interest? *least restrictive means*
26
strict scrutiny burden of proof
• Burden of persuasion is on the government
o In most situations where the government could accomplish its goals without making the classification, the law will be unconstitutional
o No deference to the legislator/rule maker
27
Strict scrutiny applicability
```
Suspect classifications:
Race
Ethnicity
National origin
Alienage (if the classification is by state law)
Affirmative action
```
28
Factors to find a suspect class
1) history of discrimination
2) whether characteristic is immutable
3) whether characteristic is relevant to group's ability to perform or contribute to society
4) whether the group has political power
29
Race classification analysis steps
• Impact: Show a discriminatory impact against the class
• Intent: Prove discriminatory purpose – Was discrimination a motivating factor?
o Statistical evidence so compelling that no other explanation is possible? (Strong circumstantial evidence may shift the burden of production)
o Proved by the history of the government’s conduct?
o Proved by the legislative history?
• If discrimination was a motivating factor – would the measure have been adopted anyway?
30
Alienage exception
rational basis scrutiny is appropriate when alienage classifications restrict the right to participate in functions that are central to self-government, such as voting, running for office, or serving on a jury.
31
Affirmative action Remedial measures analysis
o For a governmental affirmative action program based on race to survive
The government must itself be guilty of specific past discrimination against the group it is seeking to favor
the remedy must be narrowly tailored to end that discrimination and eliminate its effects
32
Affirmative action permissible/impermissible use of race
o Race may be used as a “plus factor” in determining whether a student should be admitted to a public college or university, as there is a compelling interest in obtaining the educational benefits of a diverse student body.
o Racial quotas or using race as a determinative criterion violates equal protection and is unconstitutional.
33
Enabling clause
Per section 5 of 14a: congress shall have power to enforce by appropriate legislation, the provisions of 14a
Congress may pass legislation under its powers in §5 of the Fourteenth Amendment provided that the legislation is
(1) an enactment to enforce a provision of the Equal Protection Clause;
(2) plainly adapted to that end; and (3) consistent with the letter and spirit of the Constitution.
o Congress only has remedial power rather than plenary power. City of Boerne v. Flores
34
Fundamental rights under substantive due process steps of analysis
o Define the right involved in the case
o Is the right a fundamental one? -
-Or just an ordinary liberty interest?
o Substantial impairment? (of the possible rights involved)
o Strict scrutiny applies if it is a fundamental right, lesser scrutiny if something else
o USE – Equal protection OR Substantive Due Process
-EP – one group can enjoy the right but another group cannot (Invidiousness; stereotypes)
-DP – right cannot be enjoyed by anyone
35
List of fundamental rights
1. Right to marriage
a. Loving
b. Zablocki
c. Obergefell
2. Right to live together as a family
a. Moore
3. Right to have children
a. Skinner
4. Right to control children’s upbringing
5. Right to contraception
a. Griswold
b. Eisenstadt
6. Right to refuse medical treatment
a. Cruzan
7. Right to travel
a. Saenz
8. Right to vote
9. Right to access to the court to protect a fundamental right
a. Boddie
b. MLB
36
List of important rights
1. Right to Abortion
a. Casey
2. Right to sodomy (including gay sodomy)
a. Lawrence
3. Right to take pain medication for terminal suffering
a. Glucksberg concurrence
37
Just liberty interests?
1. Education
| 2. Terminally ill patient to receive assistance in committing suicide
38
First amendment (applicable clauses)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press...
39
First amendment applicability
• Applies only to the actions of governments and government officials, not to the actions of privately owned companies
40
Free speech clause analysis steps
What does statute/ordinance say?
| How does it restrict freedom of expression?
41
Expressive conduct rule
o When speech and nonspeech/conduct elements are combined in same course of conduct, a sufficiently important gov. interest in regulating the nonspeech element can justify incidental limitations on the protected speech. (US v. O’Brien)
42
Expressive conduct test
When Speech and conduct are both at issue, Gov regulation is sufficiently justified if:
The regulation is within power of gov to enact
Regulation furthers an important gov interest
Government interest is unrelated to suppression of free expression AND
The burden on speech is no greater than necessary to further that interest (narrow tailoring requirement)
43
Test for whether conduct has sufficient communicative elements to bring 1a into play
(Texas v. Johnson)
Was there an intent to convey a particularized message?
Was there a great likelihood that the message would be understood by those who viewed it?
44
Breach of the peace analysis
requires careful consideration of the actual circumstances surrounding expression, asking whether:
expression is directed to inciting or producing imminent lawless action and
is likely to incite or produce such action. Brandenberg v. Ohio
45
Vagueness
o A statute is “void for vagueness” if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited. United States v. Williams
o Ex: A law that bans “annoying” speech in certain public places
What is annoying to some if not to others – not clear what the parameters are
46
Overbreadth
A law that burdens a substantial amount of speech or other conduct constitutionally protected by the First Amendment is “overbroad” and therefore void.
47
Prior restraints definition
o A prior restraint is a regulation of speech that occurs in advance of its expression (e.g., publication or utterance).
48
Prior restraints exceptions test
Prior restraints are generally presumed to be unconstitutional, with limited exceptions. Bantam Books, Inc. v. Sullivan. These rare exceptions require at a minimum that:
There is a particular harm to be avoided
Certain procedural safeguards are provided to the speaker, such as standards must be narrowly drawn, reasonable, and definite.
49
Prior restraints burden
o The burden is on the government to prove that the material to be censored is not protected speech. Freedman v. Maryland, 380 U.S. 51 (1965).
50
Prior restraints test for content neutral permitting regimes
* Licensing scheme must serve an important interest
* Scheme must contain clear licensing criteria that leave little discretion for the licensing authority
* Scheme must contain adequate, expeditious, procedural protections, including prompt judicial review
51
Freedom not to speak: when gov compels speech
o Compelled speech is subject to strict scrutiny
o Rationale: A state may not compel individuals to engage in involuntary expression: You cannot be forced to declare a belief.
o Examples:
Child’s right not to recite the Pledge of Allegiance (West Virginia state board v. Barnette)
o Compelled financial support: One can be compelled to join or financially support a group with respect to one’s employment, but one cannot be forced to fund political speech by that group. (Abood)
52
Government speech definition
o When the government itself speaks, it is not constrained by the Free Speech Clause of the First Amendment. Therefore, government speech (public service announcements, agricultural marketing campaigns, etc.) need not be viewpoint-neutral.
53
When is gov speaking
- Monuments on public property
- Specialty license plates
- Funding private messages (must be viewpoint neutral)
54
Gov funding as speech
o Government may choose what it will and will not fund as a form of speech.
55
Unconstitutional conditions doctrine
• Gov cannot condition conferral of a discretionary benefit on the relinquishment of a constitutional right if the condition constitutes a penalty
56
Campaign related speech: Campaign contributions level of scrutiny
Statutes limiting campaign contributions are subject to intermediate scrutiny: they must be “closely drawn” to correspond with a sufficiently important interest.
57
Limits on Contributions to candidates allowed?
o The government may limit contributions to individual candidates because excessive contributions to candidates create a danger of corruption and the appearance of corruption. Buckley v. Valeo
o aggregate limits on the amount a donor may contribute to candidates for federal office, political parties, and political action committees are invalid under the First Amendment. They restrict participation in the political process and do little to further the prevention of “quid pro quo” corruption or the appearance of such corruption in campaign financing. McCutcheon v. Federal Election Commission
58
Can gov limit Contributions to political parties?
o The government may limit contributions to a political party that are used to expressly advocate for the election or defeat of a particular candidate (also known as “hard money”) as well as contributions that are used for other purposes, such as promoting the party itself (also known as “soft money”). McConnell v. Federal Election Commission
o The government may require a political party to disclose contributors and recipients unless the party can show that such disclosure would cause harm to the party. Brown v. Socialist Workers
59
Political campaign expenditures
o In contrast to campaign contributions, restrictions on expenditures by individuals and entities (including corporations and unions) on communications during an election campaign regarding a candidate are subject to strict scrutiny.
o So long as the source of the funding is disclosed, there is no legal limit to the amount that corporations and unions may spend on “electioneering communications.” Citizens United v. Federal Election
o In addition, expenditures by a candidate on her own behalf cannot be limited. Buckley v. Valeo
60
Regulations on time place and manner of expression
o The government’s ability to regulate the time, place, and manner of speech varies with the forum in which the speech takes place.
61
Public forum regulation requirements
In all types of public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions:
• Are content-neutral as to both subject matter and viewpoint neutral (i.e., it is not necessary to hear what is said in order to apply the regulation);
• Are narrowly tailored to serve a significant governmental interest; and
--By this standard, the restriction cannot burden more speech than is necessary to serve the stated interest. (McCullen v. Coakley)
• Leave open ample alternative channels for communication of the information.
62
Types of public forums
Traditional public forums
designated public forums
limited public forums
63
Trad'l public forums
o Traditional public forums are those that are historically associated with expression such as sidewalks, streets, and parks
o Strict scrutiny applies to content-based exclusions in traditional public forums
o The government CANNOT change a traditional forum to a nonpublic forum
o Restrictions on speech in a public forum must be both content and viewpoint neutral.
64
Designated public forums
o Designated public forum is one that has not historically been used for speech-related activities, but which the government has opened for such use
o Such as civic auditoriums, publicly owned theaters, or school classrooms that the public is allowed to use afterhours.
o The government CAN change a designated forum to a nonpublic forum
o Difference from trad’l public forum: Here, Gov need not open or continue a designated public forum.
-Regulations must be viewpoint and content neutral
65
Limited public forums
o Limited public forum is a public forum created by the government that is limited to use by certain groups or dedicated solely to the discussion of certain subjects.
o The gov is entitled to restrict speech within the limited public forum to maintain the forum’s purpose, so long as the restrictions
are reasonable in light of the forum and
viewpoint neutral.
66
Limited public forum analysis
1) Look @ the scope of the forum, and
• Determine whether the limited public forum’s scope is reasonable and viewpoint neutral. (external)
--Viewpoint neutral: The government may prohibit speech on certain issues altogether, but it may not allow only one side of an issue to be presented.
2) Look @ Restrictions internal to the forum (from perspective of forum’s scope)
• If the speaker falls within a limited public forum’s scope, evaluate the speaker’s exclusion using strict scrutiny.
67
Unwilling listeners rule
Under the First Amendment, a state may curtail a person’s freedom of speech directed at unwilling listeners as a proper content-neutral, reasonable time, place, and manner restriction. (Hill v. Colorado)
68
Nonpublic forum
A nonpublic forum is essentially all public property that is not a traditional or designated public forum.
Examples include government offices, schools, jails, and military bases. Sidewalks on postal service property and airport terminals are also considered nonpublic forums.
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Nonpublic forum test
The government may regulate speech-related activities in nonpublic forums as long as the regulation is
• (i) viewpoint-neutral and
o The regulation need not be content-neutral, but it must be viewpoint-neutral.
o The government may prohibit speech on certain issues altogether, but it may not allow only one side of an issue to be presented.
• (ii) reasonably related to a legitimate governmental interest.
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Personal property speech regulations
Governmental regulation of speech on a person’s own private property will rarely be upheld, particularly content-based regulations.
While the government has some limited powers to regulate speech on private property, outright bans on certain types of speech, such as signs in a person’s yard or window, are impermissible.
71
Content based regulations
o Content-based laws – those that target speech based on its communicative content – are presumptively unconstitutional & may be justified only if the government survives strict scrutiny by proving the law is
narrowly tailored
to achieve a compelling government interest
o However, even regulations that are not content-based on their face may still be content-based in application or in intent, and these laws, too, will generally be subject to strict scrutiny. Brown v. Entm’t Merchs (state law that prohibited the sale of violent video games to minors is an unconstitutional content restriction on speech)
72
Unprotected speech
Speech may be restricted based on its content if the speech falls into one of the following historic and traditional categories of unprotected speech:
- Obscenity
- child pornography
- incitement to violence/engage in imminent lawless activity
- Fighting words
- true threats
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Obscenity test
In determining whether material is obscene, the average person, applying contemporary community standards must find that the material, taken as a whole,
(1) appeals to the prurient interest (shameful or morbid sexual interest)
• Contemporary community standards: federal district in which jury is sitting.
(2) depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
• Patently offensive means representations or descriptions of sexual acts, normal or abnormal, actual or simulated, which are readily or visibly distasteful
(3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
74
Privacy right and obscenity
The sale, distribution, and exhibition of obscene material may be prohibited. However, the right to privacy generally precludes criminalization of possession of obscenity in one’s own home. Stanley v. Georgia
75
Land use restrictions/obscenity
Narrowly drawn zoning ordinances may be used to restrict the location of certain adult entertainment businesses (e.g., adult theaters, adult bookstores, strip clubs) if the purpose of the regulation is to reduce the impact on the neighborhood of such establishments, but they may not be used to ban such establishments entirely. City of Renton
76
Incitement to imminent lawless activity test
Brandenburg v. Ohio Test
Under the First and Fourteenth Amendments, a state may only regulate speech that advocates violence if
• the speech is intended to incite imminent illegal activity and
• it is likely to incite imminent illegal activity.
77
Fighting words
Words that
by their very nature are likely to incite an immediate breach of the peace/violent reaction AND
are targeted at an individual
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Fighting words content based distinctions
Statutes designed to punish only fighting words that express certain viewpoints are unconstitutional. Content based distinctions within the category of otherwise unprotected fighting words is prohibited. (R.A.V. v. St. Paul)
79
True threats
True threats are unprotected statements where
the speaker means to communicate a serious expression of an intent to commit unlawful violence
to a particular individual or group
80
New categories of unprotected speech?
States are not free to create new categories of unprotected speech/content-based restrictions without persuasive evidence that such restrictions have a long-standing history of proscription. Brown v. Entm’t Merchs
81
Less protected speech
Commercial speech
| Profanity/indecent speech
82
Commercial speech
Commercial speech: speech that does no more than propose a commercial transaction
-Restrictions on commercial speech receive intermediate scrutiny
-Elements for analyzing restrictions on commercial speech: (from central Hudson gas v. public service commission of NY)
• (1) the speech must not advertise illegal activities or constitute false or deceptive advertising that is unprotected by the First Amendment
• (2) the asserted governmental interest must be substantial
• (3) the regulation must directly advance the asserted interest; and
• (4) the regulation must be narrowly tailored to achieve the government’s asserted interest
o Reasonable fit: Narrow tailoring is satisfied here when the regulation promotes substantial gov interest that would be achieved less effectively absent the regulation (a reasonable fit between the government’s ends and the means chosen to accomplish those ends)
83
profanity/indecent speech
Gov can regulate profane and indecent speech
To protect captive audiences, especially in the home
To protect minors, especially (but not only) in the school context;
And on some forms of media.
84
Secondary effects doctrine
a regulation of speech may be treated as content neutral if its purpose is to control harmful side-effects of the speech, even if the regulation in fact limits speech because of its content
• Intermediate scrutiny is applied
• Usually only applied in context of erotic/adult entertainment
85
Right of association
Freedom of association protects the right to form or participate in any group, gathering, club, or organization virtually without restriction, although the right is not absolute.
o An infringement upon this right may be justified by a compelling state interest.
o A nondiscrimination law cannot require the government to force a private association to accept members. Right of association would be violated. (Boyscouts)
o A private association cannot be required to disclose its membership list. Right of association includes right to remain anonymous
86
Freedom of religion
* The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
* Both the Establishment Clause and the Free Exercise Clause have been incorporated into the Due Process Clause of the Fourteenth Amendment and are therefore applicable to the states.
87
Free exercise clause two freedoms
o The Free Exercise Clause of the First Amendment has been construed to include two freedoms: the freedom to believe and the freedom to act.
o The degree of protection that individuals are afforded from governmental interference in religion depends on whether religious belief or conduct is involved.
88
Religious belief
The freedom to believe in any religion or none at all is absolutely protected and cannot be restricted by law.
The government may not deny benefits or impose burdens based on religious belief, Cantwell v. Connecticut,
Gov may not require affirmation of a belief, West Virginia State Bd. of Educ. v. Barnette
Gov may not determine the reasonableness of a belief, although it may determine the sincerity of the person asserting that belief, United States v. Ballard
89
Religious conduct
Religious conduct, on the other hand, is not absolutely protected.
Generally, only state laws that intentionally target religious conduct are subject to strict scrutiny. Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test.
90
Intentionally targeting religious conduct
o Strict scrutiny applies when the government purposely targets conduct because it is religious or displays religious beliefs. Church of the Lukumi Babalu Aye
91
Generally applicable laws incidentally affecting religious practice
o Neutral state laws of general applicability that have the incidental effect of interfering with one’s ability to engage in religious practices are subject only to the rational basis test. Employment Div. v. Smith,
o Hybrid rights exception: Must have two constitutional rights at issue to trigger strict scrutiny application to facially neutral/generally applicable law (Yoder)
92
RFRA
• Under the Religious Freedom Restoration Act, which is applicable only to the federal government, not to the states, even neutral laws of general applicability are subject to strict scrutiny if they substantially burden the free exercise of religion.
93
Ministerial exception to discrimination laws
• Religious institutions can rely on a “ministerial exception” to federal and state employment discrimination laws in their decision to hire or fire a minister.
94
Free exercise analysis
Generally applicable / neutral law that is causing effect on religion?
• Is that effect on religion an incidental effect?
If both yes, then apply smith rational basis standard
If either answer is no, consider:
• Is there another fundamental right in play? (hybrid rights) Y= Apply strict scrutiny (yoder)
• Must show Compelling gov interest / narrow tailoring
Is there targeting based on religion? Yes=strict scrutiny
• Lakumi framework factors to consider whether there is intent to discriminate based on religion
o Hist background of decision that led to enactment
o Series of events, procedural and substantive variations from normal standards
o Leg and admin history involved
Check for ministerial exception
95
Establishment clause scrutiny
o When a governmental program shows preference to one religion over another, or to religion over nonreligion, strict scrutiny applies.
o Not every governmental action that impacts religion is unconstitutional.
96
Lemon test
To determine whether a particular program violates the Establishment Clause, the Court most often has applied the three-part test developed in Lemon v. Kurtzman,
A governmental action that benefits religion is valid if:
• i) It has a secular purpose;
• ii) Its principal or primary effect neither advances nor inhibits religion; and
• iii) It does not result in excessive government entanglement with religion.
97
Other tests for establishment clause
Divisiveness Test: Justice Breyer in Van Orden
Breyer asserted that avoiding religious divisiveness is a major goal of the establishment clause
Endorsement Test: O’connor’s concurrence in Lynch v. Donnelly
Holds invalid government actions if a reasonable observer would conclude that they constitute endorsement of a religion
Coercion test-Justice kennedy, Lee v weisman
The government may not coerce anyone to support or participate in religion or its exercise.
Coercion that is psychological is sufficient to be an establishment
History and tradition test
The Establishment Clause must be interpreted according to historical practices and understandings with respect to prayer at government gatherings.
98
Financial aid to religious institutions
Governmental financial assistance to religious institutions is permitted if
- -the aid is secular in nature,
- -used only for secular purposes, and,
- -when the aid is distributed among secular and religious institutions, the distribution criteria must be religiously neutral.
99
Public school and religion
Generally, religious activities conducted in public schools violate the Establishment Clause. The following practices have been held invalid as clearly promoting religion:
• i) Prayer and Bible reading, Engel v. Vitale, 370 U.S. 421 (1962);
• ii) A designated period of silence for “meditation or voluntary prayer,” Wallace v. Jaffree, 472 U.S. 38 (1985);
• iii) Nondenominational prayer led by a cleric at graduation ceremonies, Lee v. Weisman,
• iv) Posting the Ten Commandments on public-school classroom walls, Stone v. Graham, 449 U.S. 39 (1980); and
100
Access to public facilities by religious groups
If a public school allows student groups or organizations to use its facilities when classes are not in session, allowing a religious organization to use those facilities does not violate the Establishment Clause.
Furthermore, to prohibit such a group from using those facilities because religious topics would be discussed would violate the First Amendment guarantee of free speech.
101
Religious displays
A display of the Ten Commandments on public property is an impermissible violation of the Establishment Clause if the display has a “predominantly religious purpose.”McCreary County v. ACLU,
If the display also communicates a secular moral message, or its context conveys a historical and social meaning, it may be upheld. Van Orden v. Perry,
This is a highly context-dependent, case-specific inquiry.
Government holiday displays will generally be upheld unless a reasonable observer would conclude that the display is an endorsement of religion
The context of the display is key—a nativity scene in a courthouse under a banner reading “Gloria in Excelsis Deo” was struck down as endorsing religion, but a nearby outdoor display of a Christmas tree, Chanukah menorah, and other seasonal symbols was upheld as mere recognition that Christmas and Chanukah are both parts of a highly secularized winter holiday season. County of Allegheny v. ACLU, 492 U.S. 573 (1989).
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• Lakumi framework factors to consider whether there is intent to discriminate based on religion
o Hist background of decision that led to enactment
o Series of events, procedural and substantive variations from normal standards
o Leg and admin history involved
