Individual Liberties Flashcards
- Establishment Clause - Free Exercise Clause - Freedom of Association - Freedom of Speech
Free Exercise Clause
Laws that intentionally target religious beliefs are subject to what level of scrutiny?
Laws that only incidentally impact religion are subject to what level of scrutiny?
Rational basis review
Laws promoting a particular religion are subject to what level of scrutiny?
What is the 3-part test to determine whether a law violates the Establishment Clause?
Note: This has been overruled, but still be prepared with the old test. See reverse side of card for more detail.
- Action must have a secular (non-religious) purpose;
- Primary effect must neither advance nor inhibit religion; and
- Action does not excessively entangle the government with religion
⚠️ Action will only be upheld if it meets all 3 elements of the Lemon test and only regulates practice of religion; not belief (gov. can never regulate beliefs)
2023 NOTE: The Lemon test has been overruled by Kennedy. The MBE may still test it and it may not - be prepared for both situations. Barbri is continuing to test it.
When is government aid to private, religious schools allowed?
- Aid is for secular instruction/purpose; and
- Does not excessively entangle government (i.e. doesn’t require gov. to oversee programming/funding disbursement)
Are tax deductions given to parents of students in religious schools constitutional?
Yes, as long as they are also given to parents of students in secular schools
Are tax exemptions for religious organizations constitutional?
Yes, as long as they are also given to other non-profit organizations
Is allowing a religious organization to hold its meetings in a public school constitutional?
Yes, as long as there are a broad range of organizations using the facilities and none are given preferential treatment
What is the constitutionality of school prayer? A moment of silence designated for prayer?
*Note: Kennedy v. Bremerton School District, 597 U.S. (2022) essentially overturned the Lemon Test. This update will likely not be tested on the MBE, but be aware of both possible answers.
What is the constitutionality of student led prayer at a public high school football game?
**This changed in the recent decision Kennedy v. Bremerton School Dist. (06/27/2022), but the MBE will likely not be updated to reflect this in July 2022.
Is posting the Ten Commandments in a classroom constitutional?
Is displaying the Ten Commandments on public property constitutional?
No, if the display has a “predominantly religious purpose.” If secular or historical purpose, may be considered constitutional
What is the constitutionality of religious holiday displays in public places (e.g. courthouse)?
Constitutional if surrounded by other holiday symbols that make it clear government is not promoting specific religion
What is the freedom of association?
Protects the right to participate in any club, gathering, or group.
Subject to strict scrutiny: can only infringe if there’s a compelling gov. interest
When can someone be fired or prevented from gaining public employment for association with a group?
- D is active member of subversive organization;
- D knows about the group’s illegal activities; and
- D has specific intent to further illegal activities
What oaths can public employees be required to take?
- Oath to support the Constitution; and
- Oath to oppose a legal or violent overthrow of government
When can a candidate be denied admission to the bar?
On the basis of political affliation if candidate is:
- An active member of subversive organization;
- Knows about the group’s illegal activities; and
- Has specific intent to further illegal activities
Or if candidate interferes with investigation into qualifications
Can the government require disclosure of group membership?
Yes, but if the disclosure would have chilling effect, restriction must meet strict scrutiny.
Regulation that restricts substantially more speech than is constitutionally allowed (i.e. restricts unprotected and protected speech).
Renders regulation void.
Places historically open to the public for expression (e.g. parks and sidewalks). Can be either traditional or designated.