Final- Short Answer Outlines

Question 0

Sherbert test

Answer 0

1. Is there compelling gov interest

2. Is it being pursued in the least restrictive means?

Question 1

RFRA 1993

Answer 1

1. Clinton, return to Sherbert test
2. Congress disagrees with ED v. Smith decision
3. Boerne v. Flores, church renovation, RFRA cannot protect state decisions

Question 2

Clear and present danger

Answer 2

1. After Schneck v. US this becomes public metaphor and standard 1st amendment cases
2. Laws prohibiting C&PD speech are constitutional
3. Replaced by Brandenburg v. Ohio where speech must promote “imminent lawless action”

Question 3

Lemon Test (establishment clause)

Answer 3

1. Pennsylvania superintendents purchase secular & non materials
2. Contrasts with Everson v. BOE
3. Creates Lemon test

Question 4

Lemon Test

Answer 4

1. Statutes must have secular legislative purpose
2. May neither advance nor prohibit religion
3. May not foster any “excessive entanglements” with religion

Question 5

State Action Docterine

Answer 5

1. Protections in the constitution only apply to the coercive power of state against individual, not individual against individual
2. CR case of 1883 clarifies discrepancies regarding this from CR 1875

Question 6

Sherbert Test (Free Exercise Clause)

Answer 6

1. Sherbert v. Verner Sabbath work
2. Court rules in her favor and makes text
3. Free exercise clause states congress shall make no law respecting or prohibiting religion

Question 7

Categories of unprotected speech in Chaplinsky

Answer 7

1. Establishes fighting words
2. His preaching was offensive to men of common intelligence and average understanding
3. Lude and obscene, profane, liablest, and fighting/injuring through speech

Question 8

Prior Restraint and the First Amendment

Answer 8

1. Imposed gov censorship
2. 1st amendment makes this unconstitutional
3. Certain provisions like Miller Test exist

Question 9

Miller Test

Answer 9

Requires people and businesses to consider

1. Would the average person find this prurient or offensive
2. Does the work depict sexual conduct or excretory functions in an offensive way
3. Does it as a whole lack literary, artistic, political, or scientific value.

Question 10

O’Brien Test (Freedom of Speech)

Answer 10

1. Burns draft card
2. Court respects communication, but not destruction of gov property
3. Creates O’Brien test

Question 11

O’Brien Test

Answer 11

Laws must

1. Be within the constitutional power of the gov to enact,
2. Further important or substantial gov interest
3. Be unrelated to the suppression of expression
4. If the gov interest outweighed suppression of speech

Question 12

Flag Burning and First Amendment

Answer 12

1. Texas v. Johnson
2. Convicted under Texas statute
3. Overturned by SC because communicative action is protected under freedom of speech. Offensive does not hold grounds of illegal
4. Hard to carve our freedoms of speech

Question 13

Espionage Act 1917

Answer 13

1. Similar to 1878 sedition act
2. Failure to comply = fine or prison
3. Brings panic to citizens
4. Also leads to Schneck decision, calculus different

Question 14

Standards of Review under Equal Protection Clause

Answer 14

1. Advancement > conflicting decisions
2. Stare decisis defied in racial and religious freedom cases protected by Equal Protection over time
3. Court allows for “Benine” discrimination, we see standards change from decisions like Plessy to Brown

Question 15

Same-Sex Marriage and 14th Amendment

Answer 15

1. US v. Windsor
2. DOMA sec 3 leads to tax issues
3. Sec 3 & case overturned

Question 16

Separate but Equal

Answer 16

1. Plessy v. Ferguson
2. Cars were equal, so courts support separation
3. 1954 Brown v. BOE rules separate but equal inherently unequal

Question 17

Civil Rights Act of 1875

Answer 17

1. If you discriminate you pay the person or spend a year in jail
2. Overturned by CR act 1883 bc this go a beyond US powers of enforcement stated in State Action Doctrine and 14th amendment

Question 18

De Jure and De Facto Segregation

Answer 18

1. Definitions considered in 1973 case Keyes v. School District #1 & others
2. After Brown states claim to have de Jure segregation, but build schools& neighborhoods with racial patterns
3. Courts may “discriminate” if it means integration

Question 19

Race and University Admissions

Answer 19

1. 2 U of M decisions made on the same day
2. Gutter v. Bollinger- law school- no bc no quota system
3. Gratz v. Bollinger- undergrad- yes bc not individually assessed
   “We believe 25 yrs from now the use of racial preference will no longer be needed to further diversification”