FIRST AMENDMENT SUPPLEMENT
1. Establishment Clause
A. Step 1: Is the government acting with neutrality or discrimination?
i.
If neutrality, State’s refusal to grant exemptions/accommodations is
Constitutional IF there is a rational basis for the believing the no-exemption
policy services a legitimate gov’tal interest
1. Exceptions
a. Hybrid claims***
b. Laws w/ individualized treatment
2. Simple equal treatment is always enough for rational basis, almost
3. However, if law sets forth process where principles are set on a case-bycase basis, State then must consider religion as a factor to be weighed and
assessed
B. Step 2: If the ‘
2. FREE EXERCISE CLAUSE
A. Typically Application & Issue Grouping
i.
(1) gov’t prohibits behavior that a person’s religion requires
a. Reynolds v. United States: law prohibiting polygamy is constitutional
even though Mormons claim polygamy is required by their religion
b. Employment Division v. Smith [peyote case]
ii.
(2) gov’t requires conduct that a person’s religion prohibits
a.
iii.
(3) individuals claim that law burdens or makes observance of religion more
difficult
B. Free Exercise Clause Test & Examples of Types
i.
Whether the law is neutral and of general applicability [N&GA]?
1. If yes, the law must only need to meet rational basis review
2. If no, then the law must meet strict scrutiny
ii.
Neutral & Generally Applicable Examples
1. Federal law prohibits multiple marriages. N&GA b/c a religion was not
singled out. Applied to all persons, regardless of whether they wanted
multiple marriages b/c of religion or were Joe Dude. Reynolds v. United
States
2. State law required businesses to be closed on Sundays. N&GA because law
applied to all businesses across a spectrum. Law was challenged because
Orthodox Jews were required by their religion to be closed on Saturday
and the State law required businesses to be closed Sunday. The effect of
being closed Saturday (religious reasons) and Sunday (law) would make
it difficult for a Orthodox Jew to follow their religion because they could
not afford to be out of business for 2 days. Law was upheld because it
passed r/b. Braunfled v. Brown
iii.
Non-Neutral Example
1. Church of Lukumi Babalu Aye v. Hialeah
a. Religion used animal sacrifices as one of their principle forms of
practice. Branch of this religion planned to build school, worship
center, and other buildings in a city.
b. Law was passed which banned animal sacrifice after religion made it
public they wanted to move to the city
c. Held: law was not neutral because its clear object was to prohibit a
religious practice. Law spoke of “sacrifice” and “ritual” and the
purpose of the law was to prohibit the religion from being able to
practice in the city.
d. Held: the law was also not of general applicability because the city ’s
law was justified by reducing animal cruelty but the law was drafted
to forbid few killings but those occasioned by religious sacrifice.
e. Held: b/c law was not N&GA, strict scrutiny was applied and the law
was found to be unconstitutional
C. Employment Division v. Smith [Peyote Case]
i.
Law prohibited use of peyote and users of peyote who were fired because of
peyote were disqualified from unemployment benefits
ii.
Law was N&GA. Peyote is an illegal drug and the law applied to all citizens
regardless of their religious views.
iii.
Law was challenged by a member of a Native American tribe who was
discharged because of his peyote use. The Indian tribe used peyote in religious
ceremonies.
iv.
Held: law was N&GA, and only had to survive a rational basis. Law was
constitutional
v.
Notes
1. In Smith, the court expressly rejected the use of S.S. for challenges of
neutral laws that burdened religion.
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2. Scalia: “because we are a cosmopolitan nation made up of people of
almost every conceivable religious preference … because we value and
protect that religious divergence, we cannot afford the luxury of deeming
presumptively invalid every regulation of conduct that does not protect
an interest of the highest order.
3. SHORT ANSWER REVIEW QUESTION COVID
A. Peyote case; law is uncertain; according to Tepker the Scalia law in Peyote is still
current law
B. Yes, rational basis applies, but the regulation appears to treat churches worse than
other businesses. Essential stores like grocery stores, doctor’s offices, and other
similar entities have less restrictions. Under the rules, Churches are being not
treated the same (arguably worse). Treat churches as well as any other business and
keep close to public health justifications.
C. Scalia’s Individualized Exception
i.
Whenever you are discussing a gov’t rule, reg, or law that applies to a lot of
people, but is assessed on a case by case basis (committee, etc) there might be
grounds for constitutional scrutiny if the value of religious freedom is ignored.
Would possibly trigger quasi-close scrutiny (no one has ever said this but the
effect has been this)
D. Check up on City of Philadelphia Adoption agency
4. LONGER ESSAY
A. What principles are at stake?
B. Analytical framework for understanding the risk of danger of what is at state
C. More resembles classical advocacy
5. LEMON TEST
A. Not formally overruled
B. Scalia: LT is a ghoul that lays in the grave but is never buried
C. 1st Prong is still alive and valid
D. 2nd prong is where the issue is being challenged and pushed back (maybe
implication of neutrality)
i.
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Entanglement, O’Connor
ii.
Quasi-coercion, Kennedy
E. 3rd Prong of entanglement has been absorbed by the 2nd prong
F. Look at the slideshow Tepker gave us
G. McCreary & Haskell represent existing law for Establishment Clause
VIEWPOINT MESSAGE DISCRIMINATION: EXACTING SCRUNTINY
1. INCITEMENT
A. Modern Test: Brandenburg v. Ohio
i.
Elements
1. Imminent harm,
2. Likelihood of producing illegal action, and
3. Intent to cause imminent illegality
i.
This intent requirement is the biggest separator between
prior incitement tests & the modern approach. Intent =
“specific intent”
2. FIGHTING WORDS
A. Modern Test: Cohen v. California (Fuck the Draft)
i.
Elements
1. Direct personal insults/personally addressed abusive epithets
2. Intentionally designed, and
3.
inherently likely to provoke hostile reaction
3. DEFAMATION
A. Normal Defamation Elements: NY Times v. Sullivan
i.
False statement about a public figure
ii.
Actual malice
1. Reckless disregard for truth or knowledge of falsity
B. Private Persons
C. IIED
i.
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4. OBSCENITY
A. Modern Doctrine: Miller v. California
i.
Expression
1. Taken as a whole
2. Appeals to the prurient interest
a. Using contemporary community standards applied by average person
b. Prurient: strong effect of sexuality or sexual longing
3. Depiction of sexual conduct or explicit description
a. State statute specific—> due process issues
i.
Specific description of images that cannot be sjown because
they are patently offensive
4. Lacks serious literary, artistic, political, or scientific value
B. Obscenity & Zoning
i.
Usually does not fall under exacting scrunity!
ii.
Instead, re-route zoning of sexual expression to time, place, and manner
regulations
CONTENT DISCRIMINATION: CLOSE SCRUNITY [SS]
1.
MEANING
A. Channeling
i.
Gov’t may “channel” or restrict particular types or forms of expression, even if
protected, in pursuit of substantial or important governmental objectives, if the
regulations are “narrowly tailored” so as to not burden or disadvantage
particular philosophies or viewpoints
B. Quasi-Ad-hoc Balancing
i.
Specific Categories
1. Ban on electioneering near polling places-> Intermediate Scrutiny +
compelling ad-hoc balancing. Still called “close scrutiny” for exam but just
know this is a lesser version of close scrutiny and a stiffer review than
intermediate scrutiny
2. Regulations of Political Campaigns Contributions
3. Regulation of Truthful Commercial Speech
4. Deference Approach: zoning of sexual expression (obscenity, see slide
above); this is close to rational basis if narrowly tailored to limit the
zoning to just porn stuff and other like expression
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