CON LAW II – Fall 2020
Professor Lanctot
EQUAL PROTECTION
I. CONSTITUTIONAL PROVISIONS CONCERNING EQUAL PROTECTION—
a. The Constitution as originally drafted and ratified had no provisions assuring equal protection of
the laws.
b. After the Civil War, widespread discrimination against former slaves led to the passage of the
Fourteenth Amendment. -- "No state shall … deny to any person within its jurisdiction the equal protection of
the laws."
i. The promise of this provision went unrealized for almost a century as the Supreme Court
rarely found any state or local action to violate the Equal Protection Clause until the mid1950s.
ii. Brown v. Board of Education ushered in the modern era of equal protection jurisprudence. -Since Brown, the Supreme Court has relied on the Equal Protection Clause as a key
provision for combatting invidious discrimination and for safeguarding fundamental rights.
iii. In Bolling v. Sharpe, the Court held that equal protection applies to the federal government
through the Due Process Clause of the Fifth Amendment.
1. The Court simply declared that "discrimination may be so unjustifiable as to be
violative of due process."
2. The Supreme Court has expressly declared that "[e]qual protection analysis in the
Fifth Amendment area is the same as that under the Fourteenth Amendment."
II. FRAMEWORK FOR EQUAL PROTECTION ANALYSIS—
a. QUESTION 1: What is the classification?
i. Classification exists on the face of the law—that is, the law in its very terms draws a
distinction among people based on a particular characteristic.
1. Ex. law that prohibits blacks from serving on juries, law that says only those 16
and older can have drivers' licenses
ii. Facially neutral law that has a discriminatory impact and a discriminatory purpose—
discriminatory impact is insufficient alone.
1. Ex. law that requires that all police officers be at least 5'10" tall and 150 pounds
b. QUESTION 2: What is the appropriate level of scrutiny?
i. Carolene Products factors- may be relevant to determining level of scrutiny, but not set in
stone1. Immutable characteristics—race, national origin, gender, the marital status of one’s
parents, etc.
2. Minority—group of people whose practices, race, religion, ethnicity, or other
characteristics are lesser in numbers than the main groups of those classifications.
3. Visible—can’t make a choice to cover it up or hide it
4. Discrete & insular—members of a group that is small and easily recognized as a
group that might be targeted for discrimination
5. Lack of political power—ability of the group to protect itself through the political
process
6. History of discrimination
7. Characteristic is rarely, if ever, relevant to government decision-making
ii. STRICT SCRUTINY: Law must be narrowly tailored to serve a compelling government
interest.
1. Discrimination based on race, national origin, religion, alienage.
a. Alienage classifications must meet strict scrutiny. In the 14th Am., the
term “person” encompasses lawfully admitted resident aliens as well as
citizens of the U.S. and entitles both citizens and aliens to the equal
protection of the laws. (Graham v. Richardson).
2. Burden of proof = Government.
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iii. INTERMEDIATE SCRUTINY: Law must be substantially related to an important
government interest.
1. Discrimination based on gender, non-martial children.
2. Burden of proof = Government.
iv. RATIONAL BASIS TEST: Law must be rationally related to a legitimate government
purpose.
1. All laws not subjected to strict or intermediate scrutiny are evaluated here.
2. Burden of proof = Challenger.
c. QUESTION 3: Does the government action meet the level of scrutiny?
i. In evaluating the relationship of the means of the particular law to the end, the Supreme
Court often focuses on the degree to which a law is underinclusive and/or overinclusive.
1. UNDERINCLUSIVE: Law does not apply to individuals who are similar to those
to whom the law applies. Law does not regulate all who are similarly situated.
2. OVERINCLUSIVE: Law applies to those who need not be included in order for
the government to serve its purpose. Law regulates individuals who are not
similarly situated.
d. FUNDAMENTAL RIGHTS—Sometimes equal protection analysis is used if the government
discriminates among people as to the exercise of a fundamental right.
i. The Court has used the Equal Protection Clause to protect fundamental rights such as
procreation, voting, access to the judicial process, and interstate travel.
ii. The effect is the same whether a right is deemed fundamental under the Equal Protection
Clause or under the Due Process Clause  Government infringements are subject to strict
scrutiny.
III. STRICT SCRUTINY—
a. FACIALLY NEUTRAL—
i. A disproportionate impact is not enough for a race classification.  Rational Basis.
1. Proof of a disproportionate impact of a facially neutral law is not enough; there
must also be proof of a discriminatory purpose for the law to be treated as a racial
or national origin classification.
2. A facially neutral law, serving ends otherwise within the power of government to
pursue, is not invalid simply because it may affect a greater proportion of one race
than another. (Washington v. Davis).
3. There must be actual proof that the government desired discriminatory
consequences, not just that they were aware of them. (Feeny).
ii. Evidentiary tools to prove discriminatory purpose (Village of Arlington Heights)—
1. the impact of the official action—whether it bears more heavily on one race than
another;
2. the clear pattern, unexplainable on grounds other than race
3. the historical background of the decision—particularly if it reveals a series of official
actions taken for invidious purpose;
4. the specific sequence of events leading up to the challenged decision;
5. any procedural or substantive departures; and
6. the legislative or administrative history surrounding the adoption of the decision.
b. COMPELLING GOVERNMENT INTERESTS—
i. Pressing Public Necessity1. Pressing public necessity may sometimes justify the existence of such restrictions; racial
antagonism never can. The court will show deference to military when there is a
serious national security risk, and no other way to identify individuals. “Hardships
are part of war.” (Korematsu).
ii. Remedying Past Discrimination1. Affirmative Actiona. Remedying past discrimination is a compelling interest. (Parents).
b. Affirmative action will be allowed if it is directed at entities that are
proved to have engaged in illegal discrimination.
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2. General Societal Discriminationa. General societal discrimination is NOT a compelling interest. Without
evidence of systematic past discrimination, a city may not enact a plan to
provide a race-based set-aside to exclusively promote minority business
enterprises. (Richmond).
i. There should be evidence of the volume of the qualified minority
employees/contractors seeking hiring/contracts, as compared to
the number actually receiving the jobs/contracts, or specific cases
of discrimination against minority employees/contractors and
statistical evidence of discrimination.
iii. Education1. Social science shows the negative effect that segregation has on African American
children. State-mandated segregation inherently stamps black children as inferior
and impairs their educational opportunities. Separate educational facilities are
inherently unequal and therefore deprive African Americans of EPC rights.
(Brown v. Board of Ed.).
a. Lower courts may fashion remedies “with all deliberate speed.” (Brown II).
iv. Diversity in the Classroom1. Student body diversity is a compelling state interest. (Parents / Grutter / Gratz).
2. The benefits of diversity are substantial, and diversity promotes cross-racial
understanding, helps to break down racial stereotypes, and enables students to
understand people of other races. (Grutter).
3. Defer to educational institution when they talk about their educational mission.
(Grutter).
v. NOT COMPELLING—
1. Invidious discrimination is NOT a compelling interest.
a. A law is not permissible just because it burdens both whites and
minorities. It still rests solely upon distinctions of race and has invidious
purpose. (Loving v. Virginia).
2. NO burdens on the right to travel. (Saenz).
a. Strict scrutiny is used to review the constitutionality of a state rule that
discriminates against some of its citizens because they have been
domiciled in the state for less time than others.
b. A state interest in preventing people from gaining more welfare benefits is
NOT compelling.
c. CITIZENSHIP CLAUSE—The Citizenship Clause does not provide for,
and does not allow for, degrees of citizenship based on length of
residence. Neither the duration of their residency nor the identity of their
prior residences has any relevance to their need for benefits.
c. NARROWLY TAILORED—
i. Remedies in school segregation cases (Swann)—
1. RACIAL BALANCES OR RACIAL QUOTAS—Very limited use made of
mathematical ratios was within the equitable remedial discretion of the District
Court.
a. The use of mathematical ratios was no more than a starting point in the
process of shaping a remedy, rather than an inflexible requirement.
b. Awareness of racial composition of the whole school system is likely to be
a useful starting point in shaping a remedy to correct past constitutional
violations.
2. ONE-RACE SCHOOLS—Existence of some small number of one-race, or
virtually one-race, schools within a district is not in and of itself the mark of a
system that still practices segregation by law
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a.
Schools all or pre-dominantly of one race in a district of mixed population
will require close scrutiny to determine that school assignments are not
part of state-enforced segregation
b. The court should scrutinize such schools, and the burden upon the school
authorities will be to satisfy the court that their racial composition is not
the result of present or past discriminatory action on their part
3. REMEDIAL ALTERING OF ATTENDANCE ZONES—As an interim
corrective measure, this cannot be said to be beyond the broad remedial powers of
a court
a. “Racially neutral” assignment plans proposed by school authorities to a
district court may be inadequate; such plans may fail to counteract the
continuing effects of past school segregation resulting from
discriminatory location of school sites or distortion of school size in order
to achieve or maintain an artificial racial separation
b. An assignment plan is not acceptable simply because it appears to be
neutral
4. TRANSPORTATION OF STUDENTS—No basis for holding that the local
school authorities may not be required to employ bus transportation as one tool of
school desegregation
a. Assignment of children to the school nearest their home serving their
grade would not produce an effective dismantling of the dual system
b. An objection to transportation of students may have validity when the
time or distance of travel is so great as to either risk the health of the
children of significantly impinge on the educational process
ii. Race neutral means first / no less discriminatory means—
1. A city must use race-neutral alternatives first. (Richmond).
2. For an affirmative action program to be upheld, the college or university must
prove that no less discriminatory alternative can achieve diversity. The government
must show there are no better ways to achieve diversity. (Fisher).
iii. Using race as one factor—
1. Colleges and universities may use race as one factor, among many, in admissions
decisions. Applicants must be evaluated as individuals. (Grutter).
2. Race must be one of many factors, not the determining factor. (Parents
Involved).
3. Racial balance CANNOT be the goal. Public schools may not assign students to
schools solely on the basis of race. (Parents Involved).
iv. No numerical set-asides or quotas—
1. Universities may use race as a factor to ensure diversity, but quotas, additional
points, or numerical quantification of benefits are impermissible. (Gratz / Fisher).
IV. INTERMEDIATE SCRUTINY—
a. FACIALLY NEUTRAL—
i. A disproportionate impact is not enough for a race classification.  Rational Basis.
1. Proof of a disproportionate impact of a facially neutral law is not enough; there
must also be proof of a discriminatory purpose for the law to be treated as a racial
or national origin classification.
2. A facially neutral law, serving ends otherwise within the power of government to
pursue, is not invalid simply because it may affect a greater proportion of one race
than another. (Washington v. Davis).
3. There must be actual proof that the government desired discriminatory
consequences, not just that they were aware of them. (Feeny).
ii. Evidentiary tools to prove discriminatory purpose (Village of Arlington Heights)—
1. the impact of the official action;
2. the clear pattern, unexplainable on grounds other than race
3. the historical background predating the decision;
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4. the specific sequence of events leading up to the challenged decision;
5. any procedural or substantive departures; and
6. the legislative or administrative history surrounding the adoption of the decision.
b. IMPORTANT GOVERNMENT INTERESTS—
i. Exceedingly Persuasive Justification1. Intermediate scrutiny requires the government to provide an exceedingly persuasive
justification for policies that discriminate against women. (VMI).
ii. Traditional Police Powers1. Traditional police powers, like traffic safety, are important interests. (Craig v.
Boren).
iii. Inherent Differences—Physical & Biological1. Inherent differences exist between men and women, but these differences can be
used only for purposes such as remedying the history of sex discrimination against
women, or promoting equal employment opportunities. (VMI).  They can’t be
used to create social inferiority.
2. Young men and women are not similarly situated with respect to the problems and
the risks of sexual intercourse. Preventing teenage pregnancy is an important
interest. (Michael M.).
3. Men and women, because of the combat restrictions on women, are not similarly
situated for purposes of a draft or registration for a draft, because there is a military
need for combat-ready troops (the underlying issue, though, is that women are
banned from combat). (Rostker).
4. Immigration rules favoring mothers over fathers because it serves the
government’s interest in ensuring there is a biological relationship between the
parent and child. (Nguyen).
iv. Remedying Past Discrimination1. Gender classifications benefiting women based on role stereotypes are generally
NOT allowed. (Orr v. Orr).
2. Gender classifications benefiting women designed to remedy past discrimination
and difference in opportunity are generally permitted. (Califano v. Webster).
v. NOT IMPORTANT—
1. No generalizations or stereotypes.
a. Justifications may not rely on overbroad generalizations about the
different talents, capacities, or preferences of males and females. (VMI).
b. The court will invalidate a law, even if it benefits women, if it is based on
stereotypical assumptions about gender roles. (Hogan).
c. The mere recitation of a benign compensatory purpose is not an
automatic shield. Instead, the compensatory purpose can only be invoked
if members of the gender benefited by the classification actually suffered a
disadvantage related to the classification. (Hogan).
2. Must be the real reason.
a. The purported interest in the classification must be the real reason.
(VMI).
c. SUBSTANTIALLY RELATED—
i. No categorical rules—
1. Broad categorical rules based on inconclusive statistics are not substantially
related. (Craig v. Boren).
ii. Ineffectiveness of a gender-neutral statute—
1. A gender-neutral statute would not be as effective at preventing teenage
pregnancy. (Michael M.).
iii. Comparable alternative—
1. There must be a meaningful educational alternative for women. (VMI).
iv. Substantial relation—
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1. A statute favoring children of citizen mothers over citizen fathers in granting U.S.
citizenship violates the EPC because the law is not substantially related to a state
interest in ensuring the child’s connection to the U.S., and the state cannot
demonstrate that preventing statelessness is an important interest. (Sessions v.
Morales-Santana).
d. RATIONAL BASIS W/ BITE—Children of undocumented aliens—
i. Rational basis with bite because (Plyler v. Doe)
1. Blameless group—They were being punished by being denied an education
because of their parents’ choice to bring them into the country
2. Complete deprivation—The court also emphasized the importance of education
and the unfairness of leaving children without this crucial service. It would create a
sub-class of illiterate persons within the country’s borders, adding to
unemployment, welfare, and crime.
ii. It must further a legitimate interest, but there is no interest in denying education to
children.
V. RATIONAL BASIS REVIEW—
a. OVERVIEW—
i. The rational basis test is the minimal level of scrutiny that all government actions
challenged under equal protection must meet. The basic requirement is that a law meets
rational basis review if it is rationally related to a legitimate government purpose.
ii. The challenger has the burden of proof when rational basis review is applied, and there is a
strong presumption in favor of laws that are challenged under the rational basis test.
iii. The Court often has said that a law should be upheld if it is possible to conceive any
legitimate purpose for the law, even if it was not the government's actual purpose.
iv. TWO QUESTIONS—
1. Does the law have a legitimate purpose?
2. Is the law rationally related to achieving it?
b. LEGITIMATE GOVERNMENT PURPOSE—
i. Traditional Police Purpose1. The government has a legitimate purpose if it advances a traditional police
purpose, like protecting safety, public health, or public morals. (Railway
Express).
ii. Anything Else1. Virtually any goal that is not forbidden by the Constitution will be deemed
sufficient to meet the rational basis test.
2. The Court has declared that under rational basis review the actual purpose behind
a law is irrelevant and the law must be upheld "if any state of facts reasonably may
be conceived to justify" its discrimination.
3. Rarely is there a single, identifiable purpose for a law. – Legislators might have
radically different reasons for supporting a specific legislative act.
iii. NOT LEGITIMATE PURPOSE—
1. A bare congressional desire to harm a politically unpopular group CANNOT
constitute a legitimate government purpose. (U.S. Dept. of Agriculture v.
Moreno).
2. There is no legitimate purpose in singling out a particular group and precluding it
from using the political process. (Romer v. Evans).
3. Irrational fear and prejudice do not constitute a legit purpose. (Cleburne).
c. RATIONALLY RELATED—
i. Tolerant of under-inclusiveness and over-inclusiveness
1. Substantially under-inclusive laws are allowed because the government may
incrementally get at a problem. (Railway Express).
2. Substantially over-inclusive laws are allowed, especially if any alternative rule
would be less precise or more costly. If it does not circumscribe a class of persons
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characterized by some unpopular trait or affiliation, it does not create or reflect a
special likelihood of bias. (Beazer).
d. APPLICATION—All classifications not subject to strict or intermediate scrutiny fall under this
test.
i. Sexual orientation—
1. Targeted and injurious denial of basic rights can bear no rational relation to any
legitimate purpose. There is no legitimate purpose in singling out a particular
group and precluding it from using the political process. (Romer v. Evans /
Lawrence v. Texas / Obergefell).
a. Obergefell applies to all things having to do with marriage. (Pavan).
2. The purpose and effect of DOMA are to disadvantage married same-sex couples.
The legislative history makes this clear. “DOMA writes inequality into the entire
United States Code” and ensures the disparate treatment of legally married couples
living within the same state. (Windsor).
3. Intentionally discriminating against an individual for being homosexual or
transgender requires discriminating against the individual in part because of sex.
(Bostock). SO RB OR INTERMEDIATE?
ii. Disability classifications—
1. The state may not rely on a classification whose relationship to an asserted goal is
so attenuated as to render the distinction arbitrary or irrational.
2. Rational basis because
a. Large amorphous group (not discrete & insular)
b. Not politically powerless (there is a lot of legislation to protect them
c. Not rarely irrelevant to government decision-making (the government
takes special steps to protect people with disabilities)
3. However, a classification involving the disabled will still be struck down if
a. no other facilities require a permit and the home would pose no special
threat;
b. the law is based on mere attitudes or fears; or
c. the law is an irrational prejudice towards the group (animus).
iii. Alienage related to democratic process (Foley)—
1. Only rational basis review is used for alienage classifications related to selfgovernment and the democratic process. Hence, a state may deny aliens the right
to vote, hold political office, or serve on juries.
2. STANDARD OF REVIEW—Scrutiny is not so demanding where the court deals
with matters firmly within a State's constitutional prerogatives. The State need only
justify its classification by a showing of some rational relationship between the
interest sought to be protected and the limiting classification.
3. TEST FOR EXCEPTION—Examine each position in question to determine
whether it involves discretionary decision-making, or execution of policy, which
substantially affects members of the political community. GOVERNMENTAL
FUNCTION.
a. Teachers come well within the “governmental function” principle
recognized in Foley. (Ambach v. Norwick).
iv. Wealth classifications—
1. Poverty is not a suspect classification, and discrimination against the poor should
only receive rational basis review. (Rodriguez).
2. Poll taxes are unconstitutional as a denial of equal protection. The state may not
allocate the right to vote based on wealth. (Harper).
3. BUT evenhanded restrictions that protect the integrity and reliability of the
electoral process itself are not invidious and satisfy the standard set forth in
Harper. (Crawford).
a. The court balances the burden on the right to vote against the state’s
interest in preventing fraud. There is a minimal burden, especially because
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most people already have photo ID, and those that don’t can cast a
provisional ballot and later verify identification. The interest is important
because it prevents fraud and preserves confidence in the electoral system.
STATE ACTION
I.
Requirement for State Actiona. These issues arise when a person is being harmed by a private party that they think is aligned with the
government. Look for privatized government services.
II.
Public Functions Exception- A private entity must comply with the Constitution if it is performing a
task that has been traditionally, exclusively done by the government.
a. Traditionally, exclusively, reserved to the state (Jackson)
i. The public functions exception only applies to tasks that are traditionally, exclusively done by
the government.
b. Delegation Theory / Balancing Test (Marsh)
i. The determination of state action is a balancing test where the court weighs the interests of
the private property owner and the constitutional rights involved. Considers whether the
private property is used for a public purpose.
ii. When we balance the constitutional rights of owners of property against those of people to
enjoy freedom of press and religion, we remain mindful of the fact that the latter occupy a
preferred position.
1. The more an owner, for his advantage, opens up his property for use by the public
in general, the more his rights become circumscribed by the statutory and
constitutional rights of those who use it.
III.
Entanglement Exception- Private conduct must comply with the Constitution if the government has
authorized, encouraged, or facilitated the unconstitutional conduct.
a. Private conduct must comply with the Constitution if the government has authorized, encouraged, or
facilitated the unconstitutional conduct. (Shelley).
i. Judicial actions (Shelley)1. Court enforcement has the government, through its judicial branch, facilitating
discrimination. Judges are government actors, and judicial remedies are state
action.
ii. Government licensing and regulation (Burton)1. Government licensing or regulating is insufficient for a finding of state action, unless
there is other government encouraging or facilitating of unconstitutional conduct.
2. The government must be so entangled with a private actor that there is a
“symbiotic relationship” sufficient to create state action.
3. If the state has so far insinuated itself into a position of interdependence with the
private actor, it must be recognized as a joint participant in the challenged activity.
iii. However, where a state does not significantly involve itself with invidious discriminations
by a private entity (e.g. by establishing or enforcing policies), no state action has occurred,
and the private entity is not prohibited from discriminating against people on the basis of
race. (Moose Lodge).
IV.
Entwinement Exception (Brentwood)a. State action may be found if there is such a close nexus between the state and the challenged action
that seemingly private behavior may be fairly treated as that of the state itself.
THE FIRST AMENDMENT: FREEDOM OF EXPRESSION
I.
CONTENT-BASED REGULATION—
i. FRAMEWORK—
1. TEST = STRICT SCRUTINY
a. PRESUMPTIONS—
i. Presumption for speech  Absent something else, speech is
protected
ii. Viewpoint/content-based regulation  Presumptively invalid
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b. UNPROTECTED—Content-based speech may be prohibited if it is
“unprotected”i. Incitement (Brandenburg)
ii. Fighting Words (Chaplinsky)
iii. True Threats (Black)
iv. Obscenity (Miller)
c. LESS PROTECTED—Some speech is “less protected”i. Indecent or “low value” speech
ii. Commercial speech
d. IF PROTECTED  Evaluate under strict scrutiny.
2. THRESHOLD QUESTIONS—
a. VAGUENESS—
i. A law is vague if it is not written clearly enough to provide notice
of the activity that is being prohibited.
b. OVERBREADTH—
i. Overbreadth problems arise when a law sweeps so broadly that it
burdens both protected and unprotected expression.
c. VIEWPOINT—
i. Discrimination on the basis of viewpoint is impermissible even
when unprotected expression is the regulatory focal point.
ii. UNPROTECTED SPEECH—
1. INCITEMENTa. Brandenburg Test- Three requirements for incitement (Brandenburg)i. The speaker intended to incite unlawful activity;
ii. The speech was likely to incite unlawful action; and
iii. The risk of unlawful activity was imminent.
b. Clear & Present Danger Testi. Whether the words used are used in such circumstances and are
of such a nature as to create a clear and present danger that they
will bring about the substantive evils that Congress has a right to
prevent. (Schneck).
1. If the act, its tendency and the intent with which it is
done are the same, there is no ground for saying that
success alone warrants making the act a crime.
(Schneck).
2. Attempts to cause and incite insubordination, disloyalty,
mutiny and refusal of duty in the military is unprotected
speech. (Frohwerk / Debs / Abrams).
c. The Reasonableness Approachi. Every presumption is to be indulged in favor of the validity of the
statute, and it may not be declared unconstitutional unless it is an
arbitrary or unreasonable attempt to exercise the authority vested
in the State in the public interest. (Gitlow).
d. The Risk Formula Approachi. Whether the gravity of the “evil,” discounted by its improbability,
justifies such invasion of free speech as is necessary to avoid the
danger. (Dennis).
2. FIGHTING WORDS (Chaplinsky)a. Definedi. Fighting words are those that, by their very utterance, inflict
injury or tend to incite an immediate breach of the peace.
b. Must be likely to provokei. The state can only ban fighting words, personally abusive
epithets, that are inherently likely to provoke violent reaction. (Cohen).
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1. Mere offensiveness does not qualify words as fighting
words, but were they delivered in a way likely to invite an
unthinking, violent response?
c. Must be directed at a particular individual (Cohen)i. The mere presumed presence of unwitting listeners or viewers
does not serve automatically to justify curtailing all speech
capable of giving offense. It must be directed at someone in
particular.
d. Vagueness or overbreadth (Gooding)i. A state statute prohibiting fighting words may still be
unconstitutional if it’s over-inclusive. A statute criminalizing
“opprobrious” and “abusive” speech is over-inclusive because it
encompasses more speech than just “fighting words.”
e. No content-based restrictions (R.A.V.)i. By discriminating within a category of fighting words, an
ordinance will trigger strict scrutiny.
1. Gov’t may proscribe libel; but it may not make the
further content discrimination of proscribing only libel
critical of the gov’t.
2. Power to proscribe speech on the basis of one content
element (e.g., obscenity) does not entail the power to
proscribe it on the basis of other content elements.
3. Gov’t may not regulate use based on hostility – or
favoritism – towards the underlying message expressed.
ii. R.A.V. calls the “unprotected” classification into question. —
These categories aren’t entirely unprotected; the gov’t still may
not pick and choose, even within these categories, based on
viewpoint.
iii. EXCEPTIONS—Two circumstances where content-based
distinctions within categories of unprotected speech would be
allowed1. Where the distinction advances the reason why the
category is unprotected.
2. Where the restriction of speech is meant to prevent
secondary effects.
3. TRUE THREATS (Black)a. Definedi. A true threat occurs when an individual means to communicate a
serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals.
ii. It can be seen as a variation of fighting words that does not
require imminence or a face-to-face confrontation.
b. Intenti. Governments may prohibit cross-burning done with the intent to
threaten or intimidate, but not the act itself because it is not
evidence of an intent to threaten.
ii. The speaker must mean to communicate a serious intent to
commit an act of unlawful violence to a particular individual or
group of individuals. The speaker need not actually intend to
carry out the threat.
4. OBSCENITYa. Backgroundi. Obscenity is a category of speech unprotected by the First
Amendment. (Roth).
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ii. There are legitimate state interests at stake in stemming the tide
of commercialized obscenity. (Paris Adult).
iii. Regulation of obscenity is permissible even on the basis of
unprovable assumptions. (Paris Adult).
b. Miller Test for Obscenityi. Material is obscene if1. the average person, applying contemporary community
standards, would find that the work, taken as a whole,
appeals to the prurient interest;
2. the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state
law; and
3. the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.
iii. LIMITED PROTECTION—
1. OFFENSIVE SPEECHa. Protectedi. The use of indecent or vulgar language is protected by the First
Amendment as long as the context in which the language is used
does not trigger some other unprotected status, like fighting
words.
ii. One man’s vulgarity is another man’s lyric. (Cohen).
iii. Most cases are decided on vagueness or overbreadth grounds.
b. Must invade substantial privacy interests (Cohen)i. While a state may prohibit a speaker from imposing unwelcome
views in the privacy of another person’s home, outside of the
home we are subject to objectionable speech. Dialogue can be
shut off only if substantial privacy interests have been invaded in
an intolerable manner.
c. Broadcast (Pacifica)i. Broadcast media is uniquely pervasive and intrusive into the
home and uniquely accessible to children. The individual’s right
to be left alone in the home outweighs the First Amendment
rights of an intruder.
d. Internet (Reno)i. With no history of government regulation, strict scrutiny is the
standard. Protecting children from exposure is a compelling
interest, but it was too much of a burden and there were less
restrictive means.
ii. You have to make an effort to access the internet. It is not
pervasive like broadcast.
iii. “Indecent” and “offensive” is too vague and could include
conversations about birth control or homosexuality. They cover
large amounts of non-pornographic material with serious
educational or other value.
2. CHILD PORNOGRAPHY (Ferber)a. The government may prohibit the exhibition, sale, or distribution of child
pornography even if it does not meet the test for obscenity.
b. The state’s interest in safeguarding the physical and psychological wellbeing of a minor is compelling.
i. The material must use children in its production. (Ashcroft).
3. ADULT FILMS – ZONING ORDINANCES (Young)a. The state may legitimately use the content of adult films as the basis for
requiring geographic disbursement of adult movie theaters. As long as the
11
4.
5.
6.
7.
city does not completely suppress adult entertainment, it may impose
special zoning requirements.
b. Legitimate purposes of the city include commercial planning efforts and
preserving the character of local neighborhoods.
c. This is a permissible content-based restriction that survives strict scrutiny.
ANIMAL CRUELTY – CONTENT-BASED (Stevens)a. This is a content-based restriction so it is presumptively invalid unless the
government can show it is narrowly tailored to serve some compelling
interest.
b. The benefits of restrictions to the First Amendment must outweigh the
costs. But speech is not subject to a simple cost-benefit analysis – there
must be a compelling interest.
c. A statute cannot prohibit more speech than they are meant to protect.
VIDEO GAMES – CONTENT-BASED (Brown v. Entertainment Merchants
Association)a. Video games communicate ideas – and even social messages, and as a
result, this is a content-based restriction. Therefore, there must be a
compelling interest and narrowly drawn means.
i. No compelling interest because there is no direct causal link of
harm. Nothing more than a correlation.
ii. Also underinclusive because it failed to restrict other depictions
of violence to children and overinclusive because it prevented
children from purchasing games on their own even when parents
did not object.
b. A state possesses legitimate power to protect children from harm, but that
does not include a free-floating power to restrict the ideas to which
children may be exposed. When speech is not obscene as to children,
Congress cannot suppress it merely from ideas or images that they think
are unsuitable for them.
c. Historically, the nation has rarely taken steps to insulate children from
depictions of violence.
FALSE SPEECH – CONTENT-BASED (Alvarez)a. A law that makes it a crime to falsely claim the medal of honor must meet
exacting scrutiny because it is a content-based restriction. It is
unconstitutional because there is no proof of harm from false claims and
there are less restrictive alternatives.
b. False speech is not outside the scope of the First Amendment.
COMMERCIAL SPEECHa. Proposal of a commercial transaction (Virginia State Board of
Pharmacy)i. Speech that “does no more than propose a commercial
transaction” is protected by the First Amendment. It plays a vital
role in our socioeconomic system.
ii. Speech in aid of pharmaceutical marketing is protected because
content-based restrictions must have a compelling interest and no
alternative content-neutral means. (Sorrel).
iii. Total bans are subject to a rigorous standard of review. (44
Liquormart).
b. Commercial Speech Test (Central Hudson)i. Does the speech advertise illegal activities or constitute false or
misleading advertising that is unprotected by the First Am.?
ii. Is the government’s restriction justified by a substantial government
interest?
iii. Does the law directly advance the government’s interest?
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II.
1. The regulation cannot be ineffective or remote in
achieving the interest.
iv. Whether the regulation is no more extensive than necessary to achieve
the government’s interest.
1. A state law prohibiting advertisement of liquor prices is
more extensive than necessary. (44 Liquormart).
2. A regulation prohibiting tobacco advertising within 1,000
feet of a playground or school is not a reasonable fit. The
substantial geographic reach of the regulations combined
with the breadth of outdoor advertising they prohibit,
make it unlikely that they are not more extensive than
necessary to achieve the government’s
interest. (Lorillard Tobacco Co. v. Reilly).
CONTENT-NEUTRAL REGULATION—
a. REGULATORY METHODOLOGIES THAT IMPACT EXPRESSION—
i. SPEECH OR CONDUCT?
1. First, decide if the conduct is symbolic speech.
a. An intent to convey a particularized message was present, and
b. In the surrounding circumstances, the likelihood was great that the
message would be understood by those receiving it.
2. If the conduct is expressive, decide on the standard of review.
a. For regulation directed at an interest unrelated to speech, use the O’Brien
Test.
b. If the regulatory focus is related to the suppression of expression, and
government targets it based on its content, apply strict scrutiny.
i. Government may not prohibit the expression of an idea simply
because it finds the idea offensive or disagreeable. This is a
content-based restriction. (Texas v. Johnson)
3. CONDUCT-REGULATION TEST (O’Brien)a. it is within the constitutional power of the government;
b. it furthers an important or substantial governmental interest;
c. the governmental interest is unrelated to the suppression of free expression; and
d. the incidental restriction on free speech is no greater than needed to further the
government interest.
ii. SECONDARY EFFECTS (Renton)1. Regulation that burdens speech may be content-neutral if a court can identify a
regulatory interest unrelated to the suppression of expression.
2. A content-based standard of review does not operate where the city’s
“predominate purpose” is unrelated to expression, and instead, is the secondary
effects of crime.
a. The ordinance must be designed to prevent crime, and preserve the
quality of the neighborhoods, not to suppress the expression of
unpopular views.
3. The secondary effects test hasn’t been used outside sexually explicit speech.
4. No proof that nude dancing caused crime is necessary. The city can rely on the
experience of other cities to reasonably conclude that it increases crime. (Renton).
b. PUBLIC FORA—
i. THE PUBLIC FORUM1. Where the expressive activity occurs on government property.
2. The level of protection of the speech depends on how the property is classified.
3. REGULATIONa. Government is strictly limited in its ability to regulate private speech in
the traditional and designated public forums.
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b. CONTENT-NEUTRAL  Time, place, and manner restrictions that are
reasonable and content neutral can be imposed to protect a significant
governmental interest. Viewpoint discrimination is prohibited.
i. They are justified without regard to the content of the regulated
speech
ii. They serve a significant government interest, and
iii. They leave open ample alternative channels for communication
of the information
c. CONTENT-BASED  Must be sufficiently tailored to accomplish a
substantial government interest.
ii. TRADITIONAL PUBLIC FORUMS1. Recognition of the public foruma. Falling in this category are streets, sidewalks, and parks, which have been
held in trust for the use of the public and used for purposes of assembly.
(Hague).
b. A prohibition over distributing handbills in public streets is an overly
burdensome imposition on freedom of speech. (Schneider).
2. Content-neutral restrictions are constitutional as long as they are (Ward)a. narrowly tailored to serve a significant government interest;
b. applied without regard to the content of the regulated speech; and
c. leave open alternative channels of communication.
3. Narrowly tailored requirement (Ward)a. The narrowly tailored requirement is not coextensive with a least
burdensome alternative standard. The regulation need only promote the
interest more effectively than would be achieved without the law. A law
will not be struck down merely because the court can identify a less
restrictive alternative means.
4. Picketing in the public foruma. Government cannot regulate signs or differentiate between them based
on content because it is viewpoint discrimination. (Reed).
b. Although styled as a TPM regulation, an ordinance may still discriminate
on the basis of content. Minus a compelling reason to differentiate
between one type of picketing from another, governments cannot regulate
in terms of subject matter. (Mosley).
i. Although traffic safety and aesthetic appeal are compelling
government interests, they fail because there is no evidence that
some signs are less appealing or more dangerous than others.
ii. There can be no content or viewpoint-based restrictions in a
public forum. (Boos).
iii. A law allowing police to disperse demonstrators is permitted
because it is content-neutral and serves important interests in
safety and order. (Boos).
c. Even content-neutral regulations that ban all picketing must pass Ward.
5. Licensesa. Courts insist on procedures that limit an administrator’s discretion and
prohibit discrimination on the basis of content.
6. Buffer zonesa. A law creating a buffer zone of 35-feet is content-neutral even if focused
on reproductive centers, if its application does not depend on what the
persons says, just where they are. (McCullen).
iii. DESIGNATED/LIMITED PUBLIC FORUMS1. Defined-
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a.
A designated public forum of a public facility that is not a traditional
public forum, but one the government has intentionally dedicated to
expressive activity.
b. A limited public forum is characterized by restricted access for use by
certain groups or dedicated solely to the discussion of certain subjects. To
qualify as a limited public forum, the government must intend to open a
nontraditional public forum to a wide class of people for expressive
activity.
c. Publications funded by the government are metaphysical designated/LP
forums, because they are a public forum created for public expression.
(Rosenberger).
2. Regulationa. Subject-matter regulation is permissible if it is reasonable and preserves the
purpose of the forum. The government may limit the use of the forum
based on subject matter and speaker identity. (Rosenberger).
b. The government may not bar one or more viewpoints of a particular
subject matter. Viewpoint discrimination is prohibited. (Rosenberger).
i. E.g. the school may be able to prohibit all funding for religious
content in school group newspapers, but not just Christianity.
3. Designated forum and the Establishment Clausea. Religious speech cannot be treated less favorably than other protected
speech.
i. E.g. Denying funds to a religious student group of one religion is
impermissible VP-based discrimination against religious speech.
(Rosenberger).
b. A school creates a limited public forum by opening its facilities to
community groups so the regulation must be viewpoint neutral. (Good
News Club).
i. Although a compelling government interest in not violating the
Establishment Clause may justify viewpoint-based discrimination,
the government must have a valid Establishment Clause
argument. (Good News Club).
c. An “all comers” policy for “recognized student groups” is both
reasonable in light of the school’s nondiscriminatory educational mission
and viewpoint neutral because the policy is justified without reference to
the content or viewpoint of the challenged speech. (Christian Legal
Society).
i. But where such policies exist, they can be challenged based on
claims that the schools actually discriminate in recognizing
student groups.
iv. NONPUBLIC FORUM (ISKCON)1. To be a traditional public forum, the property at issue must be of a type whose
principal and historical purpose is the free exchange of ideas.
2. Regulation limiting expressive activity conducted on property that is not traditionally
available for public expression or is not a designated public forum need only be reasonable,
as long as regulation is not an effort to suppress the speaker’s activity due to
disagreement with the speaker’s view.
c. GOVERNMENT SPEECH—
i. General1. The government’s own speech is exempt from First Amendment scrutiny. The
forum in which the government chooses to speak does not affect the analysis.
ii. Selective receptivity—monuments (Summum)-
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III.
1. A city may selectively accept what it allows to reflect the views of the city. Public
parks are identified in the public mind with the government. Monuments are also
giant and permanent.
2. Imposing viewpoint neutrality on the government would be paralyzing.
iii. License plates1. Messages on specialty license plates are government speech because they have
long been used by states to convey messages, they are often closely identified in
the public mind with the state, and the state maintains direct control over the
messages conveyed on the plates. (Walker).
iv. Trademarks1. Trademarks are private speech, not government speech. If trademarks constituted
government speech, other government systems of registration could be
characterized in the same way. (Matal v. Tam).
2. If private speech could be passed off as government speech by simply affixing a
government seal of approval, government could silence or muffle the expression
of disfavored viewpoints.
d. PRIOR RESTRAINTS—
i. Court Orders: The Collateral Bar Rule (Near)1. An injunction that perpetually enjoins a newspaper from publishing or circulating
any publication whatsoever containing a malicious, scandalous, or defamatory
matter is unconstitutional.
2. The appropriate way to deal with this speech is after-the-fact punishment, not a
prior restraint.
3. Injunctions stopping speech would be allowed only in exceptional cases, such as
national security.
ii. Licensing (Watchtower)1. Content neutrality is violated by restrictions that grant excessive discretion to
administrators.
2. A licensing requirement would put a substantial burden on speech by preventing
anonymous speech, spontaneous speech, and discouraging speakers who do not
wish to seek a license.
a. Must have an important purpose.
b. No standardless discretion.
c. Must be procedural safeguards.
3. Targeted restrictions could be supported by the municipality’s legitimate interest in
protecting residents from crime and fraud (door-to-door canvassing).
(Watchtower).
4. Licensing is an impermissible prior restraint (Lovell)a. Ordinance prohibits the distribution of literature of any kind at any time,
at any place, and in any manner without a permit from the city manager.
b. Whatever the motive which induced its adoption, its character is such that
it strikes at the very foundation of the freedom of the press by subjecting
it to license and censorship.
SPEECH IN PUBLIC SCHOOLS—
a. BELOW UNIVERSITY LEVEL—
i. General1. Protection for student speech varies depending on the nature of the speech.
Political speech is afforded more protection, while lewd or drug-related speech is
not.
2. Courts defer to the institution in authoritarian environment.
ii. Material and Substantial Disruption Test (Tinker)1. Schools may suppress speech by students only if it causes a substantial or material
disruption or invades other students’ rights.
iii. No Undifferentiated Fear or Avoidance of Unpopular Viewpoint (Tinker)-
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IV.
1. Undifferentiated fear or apprehension of disturbance is not enough to overcome
the right to freedom of expression.
2. Also, did the school prohibit the wearing of all symbols of political or
controversial significance? That would be viewpoint discrimination and the
silencing of political speech.
3. Encouraging drug-use is not undifferentiated fear. (Morse).
iv. Special Characteristics of School Environment (Bethel)1. First Amendment rights in schools must be applied in light of the special
characteristics of the school environment and must be consistent with its basic educational
mission.
2. The restriction must be reasonably related to pedagogical concerns.
a. Was it offensive to teachers and students or seriously damaging to a less
mature audience?
b. Was it unrelated to any political viewpoint?
c. Did it undermine the school’s educational mission?
3. The special characteristics of the school environment and the governmental
interest in stopping student drug abuse allow schools to restrict student expression
that they reasonably regard as promoting illegal drug use at a school sponsored event.
(Morse).
v. School-Sponsored Activities (Hazelwood)1. Educators do not offend the First Amendment by exercising editorial control over
the style and content of student speech in school-sponsored expressive activities so long
as their actions are reasonably related to legitimate pedagogical concerns.
2. A school newspaper is not a public forum because it is part of the school
curriculum. The school can exercise greater control over this form of student
expression to assure participants learn whatever lessons the activity is designed to
teach, that readers or listeners are not exposed to material that may be
inappropriate to their level of maturity, and that the views of the individual
speaker are not erroneously attributed to the school.
3. Morse was also a school-sponsored activity.
COMPELLED SPEECH—
a. COMPELLED SPEECH—
i. General1. A state may not compel individuals to engage in involuntary expression. Just as
there is a right to speak, there is a right to be silent and refrain from speaking.
(Barnette).
ii. Inherently Expressive1. To be compelled speech, the speech must be more than incidental to the
regulation of conduct.
2. If the act does not dictate the content of the speech and there is nothing
approaching a government mandated pledge or motto that the institution must
endorse, it is not compelled speech. (Rumsfeld).
a. To be compelled, it must be inherently expressive and sufficiently
interfere with the message of the school. (Obvious difference between
speech the school sponsors and speech the school permits because it is
legally required to do so.)
b. Was it in compliance with the law, or a reflection of their own beliefs?
3. Counterargumenta. E.g. a parade cannot be forced to include marchers with a message it does
not wish to convey. There is an inherent expressiveness of marching to
make a point, the parade’s overall message is distilled from the individual
presentations along the way, and each unit’s expression is perceived as
part of the whole.
iii. Core Political Speech-
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1. An author’s decision to remain anonymous is an aspect of the freedom of speech
protected by the First Amendment. When a law burdens core political speech, the
courts apply exacting scrutiny. (McIntyre).
a. State interests of preventing fraudulent and libelous statements and
providing the electorate with relevant information were not sufficiently
compelling.
b. FREEDOM OF ASSOCIATION—
i. Laws Prohibiting and Punishing Membership1. The government may punish membership only if it proves that a person actively
affiliated with a group, knowing of its illegal objectives, and with the specific intent
to further those objectives.
2. The government may require disclosure of membership, where disclosure will chill
association, only if it meets strict scrutiny. State must prove compelling
interest. (NAACP).
ii. Compelled Association1. Public universities may constitutionally subsidize campus groups by imposing a
mandatory student fee structure, even if some students find some campus groups
objectionable, as long as the universities remain viewpoint-neutral in their
allocation of funding support. (Southworth).
2. The viewpoint neutrality test is sufficient to protect the rights of students
objecting to a mandatory activity fee. The speech the university seeks to encourage
in the program is distinguished not by discernible limits but by its vast, unexplored
bounds.
iii. Laws Prohibiting Discrimination1. Frequently, groups wishing to discriminate challenge laws adopted by state and
local governments claiming that freedom of association protects their right to
discriminate and exclude whomever they want from their group.
2. The compelling interest in stopping discrimination justifies interfering with such
association freedoms. Freedom of association would protect a right to discriminate
only if it is intimate association or where the discrimination is integral to express
activity.
3. A state may prohibit a private organization from excluding members on the basis
of gender upon a showing of a compelling interest in preventing gender-based
discrimination that outweighs competing First Amendment interests in upholding
the freedom of association. (Roberts).
4. Requiring the Boy Scouts to admit homosexuals violated their freedom of
expressive association. (Dale).
iv. RELATIONSHIPS—The Bill of Rights protects the right to form personal relationships
without interference by the state. BUT it doesn’t protect all relationships. (Roberts).
1. PROTECTEDa. Marriage
b. Co-habitation with relatives
c. Distinguished by small circles, high selectivity, and seclusions from others
2. UNPROTECTIONa. Large business enterprise
b. Doesn’t receive the same constitutional protection
3. Does a relationship deserve constitutional protection? Considera. Size
b. Purpose
c. Policies
d. Selectivity
e. Congeniality
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THE FIRST AMENDMENT: RELIGION
I.
THE FREE EXERCISE CLAUSE—
a. Attempt to define “religion” in three contextsi. The “Supreme Being” Test1. Whether a given belief that is sincere and meaningful occupies a place in the life of
its possessor, parallel to that filled by the orthodox belief in God of one who clearly
qualifies for the exemption. (Seeger).
2. Under this view, the court broadly defines religion to include non-theistic views of
those who do not believe in a supreme being, but whose beliefs play the role of a
religion and function as a religion in their life.
3. The belief in God is not a prerequisite of religion.
ii. Requirement for “sincerely held” beliefs1. The judiciary can determine only whether religious beliefs are sincerely held, not
whether they are true or false. Men may believe what they cannot prove. (Ballard).
2. To give government the power to determine what is true and false would
undermine religion.
3. The problem is that there is no measure for sincerity.
iii. Relevance of religious dogma and shared beliefs1. An individual can claim a religious belief even if it is inconsistent with the
doctrines of his religion. (Thomas v. Review Board / Frazee).
b. BURDENS ON RELIGIONi. Generally applicable neutral laws with incidental effects (Smith)1. The court will not apply strict scrutiny to a law that is neutral and generally
applicable.
2. Neutral laws of general applicability need only be rationally related to a legitimate
government interest in order to survive a constitutional challenge.
3. The Free Exercise Clause does not relieve an individual of the obligation to
comply with a valid and neutral law of general applicability on the ground that it
prohibits conduct that his religion requires.
4. GENERALLY APPLICABLE NEUTRAL LAW—
a. All citizens must comply with a neutral law, even if that law burdens
religious practice.
b. The neutral law is prohibited only if joined with other issues of
constitutional importance. (Ex. Free speech or parental rights)
c. Rejected the argument that the law must pass the Sherbert strict scrutiny
test. -- The Sherbert test has only been used to invalidate gov't action in the
context of the denial of unemployment benefits.
i. Applying a strict scrutiny test to general criminal laws would
invite anarchy.
5. Governmental entities owe a duty of neutrality toward religion. (Masterpiece
Cake Shop).
ii. Congress’s power (Boerne)1. Congress cannot enact a law expanding the religious exception. Broad as the
power of Congress is under the Enforcement Clause of the Fourteenth
Amendment, RFRA contradicts vital principles necessary to maintain separation
of powers and federal balance.
c. DISCRIMINATION AGAINST RELIGIONi. Laws that explicitly discriminate against religion have always received heightened scrutiny.
1. If the law is not neutral, it must survive strict scrutiny. A law is not neutral if the
object of the law is to infringe upon or restrict practices because of their religious
motivation. The key question is whether the law was adopted because of the
religious nature of the practices at issue. (Church of Lukumi).
ii. How do courts decide whether a law discriminates against religion?
19
II.
1. If it refers to religious practice. (“Sacrifice” and “Ritual” also have secular
meanings.)
2. Even if it is facially neutral, official action that targets religious conduct is telling.
Therefore, the court can consider not only the wording and the function, but also
the background. (Did citizen objections lead to the ordinance?)
d. INTERFERENCE WITH RELIGIONi. MINISTERIAL EXCEPTION  Courts are bound to stay out of employment disputes
involving those holding certain important positions with churches and other religious
institutions. (Hosanna-Tabor / Our Lady).
THE ESTABLISHMENT CLAUSE—
a. FRAMEWORK—
i. If a law is not discriminatory, the court should apply the Lemon Test.
ii. Then look to the arguments on either side1. Endorsement
2. Coercion
3. Tradition & Historical Practice
4. Neutrality
5. Accommodation
6. “Ceremonial Deism”
7. Acknowledgement
8. Hostility
9. Diversion
10. Direct/Indirect
11. True Private Choice
b. FINANCIAL AID TO RELIGIOUS ORGANIZATIONSi. The Lemon Test1. First, the statute must have a secular legislative purpose;
2. Second, its principal or primary effect must be one that neither advances nor inhibits
religion; and
3. Third, the statute must not foster an excessive government entanglement with religion.
a. Some relationship between church and state is inevitable. In determining
whether there is entanglement, it is necessary to look ati. the characters and purposes of the institutions that are benefited;
ii. the nature of the aid; and
iii. the resulting relationship between the government and the
religious authority.
ii. Political Divisiveness (Lemon)1. In communities where so many people are served by church-related schools,
partisans concerned with raising costs will inevitably promote political action to
achieve their goals. However, those opposed to state aid will employ campaign
techniques to prevail.
2. While political debate and division are normal and healthy in the democratic
system, political division along religious lines is an evil that was meant to be
protected by the First Amendment.
3. It is bad if political fragmentation and divisiveness along religious lines are likely to
be intensified.
c. CRITICISMS OF THE LEMON TEST AND AID TO SCHOOLSi. NEUTRALITY (Mitchell)1. If the government, seeking some legitimate secular purpose, offers aid on the same
terms, without regard to religion, to all who adequately further that purpose, then
it is fair to say that any aid going to a religious recipient only has the effect of
furthering that secular purpose.
20
2. As long as a neutral, secular aid program does not define recipients based on
religion, and does not create an incentive to undertake religious indoctrination, it is
permissible.
3. However, governments may not discriminate against otherwise eligible recipients
by disqualifying them from a public benefit solely because of their religious
character. This triggers strict scrutiny. (Trinity Lutheran). This situation is
different from Locke, where the plaintiff was refused a scholarship because of what
he proposed to do, not for who he was.
ii. DIVERSION (Mitchell)1. As long as the government itself does not participate in the diversion, there is no
violation. Any diverted sectarian use is attributable to private actors, not the
government.
iii. TRUE PRIVATE CHOICE (Zelman)1. Where a government aid program is neutral with respect to religion, and provides
assistance directly to a broad class of citizens who, in turn, direct government to
religious schools wholly as a result of their own genuine and independent private
choice, the program is not readily subject to challenge under the Establishment
Clause.
2. Any perceived endorsement of religion is attributable to the individual recipient,
not to the government.
3. The government’s role ends with the disbursement of benefits; therefore, there is
no impermissible effect of advancing religion.
iv. DIRECT/INDIRECT1. While some might allow assistance to parochial schools that does not establish a
preference, others are reluctant to permit direct financial aid to such institutions.
2. A direct subsidy to a parochial school might not be permitted, while a subsidy to a
parent whose child attended the school would be allowed. (Zelman).
3. No violation when school pays for printing of religious newspaper because direct
payment went from the university to the printer. (Rosenberger).
d. STATE-SPONSORED PRAYER—
i. IN PUBLIC SCHOOLS (Engel)1. Under the Lemon Test, prayers in public schools have a religious purpose and a
religious effect.
2. Neither the fact that the prayer may be denominationally neutral nor the fact that
its observance on the part of the students is voluntary can serve to free it from the
limitations of the Establishment Clause.
3. The court will strike down state mandated prayers whenever young,
impressionable children are involved.
ii. LEGISLATIVE PRAYER – EXCEPTION TO LEMON (Galloway)1. The Establishment Clause should not void practices that have long been an
accepted part of our social customs.
2. It does not violate the Establishment Clause for a town board to begin virtually
every meeting over a ten-year period with a prayer by a Christian minister. The
court stressed the long history of prayers before legislative sessions and expressed
deference to government.
a. Absent a pattern of prayers that over time denigrate, proselytize, or betray
an impermissible government purpose, a challenge based solely on the
content of prayer will not likely establish a constitutional violation.
b. To hold that invocations must be nonsectarian would force the
legislatures that sponsor prayers and the courts that are asked to decide
these cases to act as supervisors and censors of religious speech, a rule
that would involve government in religious matters to a far greater degree
than is the case under the town’s current practice of neither editing nor
approving prayers in advance nor criticizing their content after the fact.
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iii. GRADUATION PRAYER (Lee)1. Coerciona. Government may not coerce anyone to support or participate in religion,
or otherwise act in a way that establishes a state religion.
b. Clergy-delivered prayers at public school graduations are inherently
coercive because there is great pressure on students to attend their
graduation ceremonies and to not leave during the prayers.
iv. PRAYER AT ATHLETIC EVENTS (Santa Fe)1. Endorsementa. Under the endorsement test, one of the relevant questions is whether an
objective observer would perceive it as a state endorsement of prayer in
public schools. An objective high school student will perceive a pregame
prayer as stamped with the school’s seal of approval.
e. CURRICULUM ISSUES—
i. INTELLIGENT DESIGN (Kitzmiller)1. ID in publics schools amounts to an endorsement of religion because it imposes a
religious view of biological origins into the biology course.
2. It is a back-door method for bringing creationism back into schools and therefore
is religiously motivated and unconstitutional.
f. OFFICIAL ACKNOWLEDGEMENT—
i. THE TEN COMMANDMENTS1. Large display on public grounds (Van Orden – declined to use Lemon)a. Hostilityi. The government must not evince a hostility to religion by
disabling the government from in some ways recognizing our
religious heritage.
ii. There is no constitutional requirement that the government
throw its weight against efforts to widen the effective scope of
religious influence.
b. Accommodationi. When the state encourages or cooperates with some religious
acts, it is respecting the religious nature of the American people
and accommodating public services to their needs.
ii. There is much historic, social, and legal background to the Ten
Commandments.
2. Displays in courthouses (McCreary)a. However, where a display has a predominantly religious purpose and lacks
neutrality between religions, it establishes religion.
b. There can be no transparent claim to secularity. Effort to create a secular
purpose after an injunction will not erase religiously motivated efforts.
ii. HOLIDAY DISPLAYS (Allegheny)1. Endorsementa. A religious display is constitutional if it represents multiple religions and a
secular message because it is sufficiently neutral. However, one religious
scene by itself is unconstitutional because it alone can be seen as an
endorsement. It depends on the context.
b. Under the Lemon Test, a display fails the effect prong if it is sufficiently
likely that the reasonable observer will perceive the display as an
endorsement or disapproval of their individual religious choices.
iii. LONGSTANDING MEMORIALS (American Legion)1. A presumption of constitutionality applies under the Establishment Clause to
longstanding memorials with historically secular purposes and traditions, even if
such a memorial uses a religious symbol on public land.
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g. RELIGION AND FREE SPEECH TENSIONS—
i. SPEECH AND RELIGION1. Viewpoint discriminationa. Any benefit to religion is incidental where the government’s provision for
secular services and for secular purposes is on a religion neutral basis.
Therefore, to obey the Establishment Clause, the government cannot
deny eligibility for funding to any group because of its viewpoint.
(Rosenberger).
b. An “all comers” policy for “recognized student groups” is both
reasonable in light of the school’s nondiscriminatory educational mission
and viewpoint neutral because the policy is justified without reference to
the content or viewpoint of the challenged speech. (Christian Legal
Society).
i. But where such policies exist, there can be challenges based on
claims that the schools actually discriminate in recognizing
student groups.
ii. USE OF PUBLIC-SCHOOL FACILITIES1. Where the government is operating a limited public forum, it may not engage in
viewpoint discrimination. (Good News Club).
iii. COLLEGE SCHOLARSHIPS1. Given that the First Amendment protects free exercise but prohibits
establishment, it might be appropriate for a court to deal differently with religious
education for the ministry than with education for other callings. This differential
treatment simply reflects the tension between the two clauses rather than hostility
towards religion. (Locke).
2. Keep in mind, that avoiding establishment concerns is not a compelling interest
where there is a clear infringement on free exercise like in Trinity Lutheran.
SECOND AMENDMENT: RIGHT TO BEAR ARMS
I. Striking Down Gun Regulations- Historical Argumentsa. An ordinance that prohibits possession of handguns and imposes significant restrictions on long guns is
unconstitutional. (Heller).
b. The absolute prohibition of handguns held and used for self-defense in the home is unconstitutional.
c. However, the right secured by the Second Amendment is not unlimited. States must be free to regulate
who can possess firearms based on certain safety concerns. (Ex. States are free to deny handgun
registration and possession to felons and the mentally ill.)
d. COUNTERARGUMENT: The Second Amendment creates a right to have firearms for the purpose of
militia service. You would not make people register for a First Amendment right.
e. The court did not identify a level of scrutiny.
II. Concealed Firearmsa. There is no Second Amendment right for the members of the general public to carry concealed
firearms in public. Any prohibition or restriction a state may choose to impose on concealed carry,
including good cause, is allowed. (Peruta).
i. Overwhelming historical sources.
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