Con Law 2

Question 1

2nd amendment

Answer 1

The regulation, law, or restriction is invalid unless it is the kind of regulation that existed when the second amendment was passed.
* the government MUST demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation

The appropriate analysis involves considering whether the challenged regulation is CONSISTENT with the principles that underpin our regulatory tradition
* This standard requires a “historical analogue” between the modern regulation and historical regulations, not a “historical twin

The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding

Question 2

How does a court decide level of scrutiny

Answer 2

Precedent
Frontiero Factors
* Discrete and insular minority
* Immutable characteristics
* political powerlessness
* History of Discrimination, harmful stereotypes

Policy reasons
* How will this impact laws intended to help?

Question 3

What does the precedent tell us

Answer 3

Strict Scrutiny = compelling governmental interest & narrowly tailored or necessary to achieve that interest
* Race
* Alienage (state) but subject to exception
* National origin (korematsu)

Intermediate Scrutiny = important governmental objective & must substantially relate to the achievement of those objectives
* Gender/Sex

Rational Basis = legitimate government interest & rationally related
* Age
* Disability
* Income/Economic Status
* Alienage (federally)

Question 4

Equal Protection

Discriminatory intent cases

Answer 4

police comprehension test case
* a discriminatory purpose must be shown before a law race-neutral on its face will be deemed a violation of the equal protection guarantee.
* rejecting the notion that discriminatory impact alone is sufficient

racist death penalty jury case
* Death penalty with statistical data that showed huge disparity not enough to move into strict scrutiny
* where is the evidence to show us that Mr. Mcklensky was individually discriminated against (from the jury, the judge)
* Show us someone in the legislature was hoping writing this law to harm black people

Arlington Heights factors to show discriminatory purpose
* You can make an reasoned assumption based on the sequence of events – Like if it was always R5 which allows it, but then suddenly changed to R3
* Direct evidence – Public comments, memos, etc revealing racial motivations
* Usual procedure – Its the idea that there is this usual procedure which then suddenly changes to not usual
* Legislative history

Yick wo
* No reason whatever, except the will of the supervisors, is assigned why they should not be permitted to carry on
* Two hundred others who have also petitioned, all of whom happen to be Chinese subjects, eighty others, not Chinese subjects, are permitted to carry on the same business under similar conditions.

Question 5

Equal Protection

Race

Facial

Answer 5

Loving – interracial marriage ban
* we applied it equally to blacks and whites
* The court reasoned that equal application of a statute containing racial classifications is not enough to remove the purpose of the fourteenth amendment’s protection from invidious discrimination.
* purpose of white supremacy is not valid

race separation in prison case
* racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally
* by insisting that inmates be housed only with other inmates of the same race, it is possible that prison officials will breed further hostility among prisoners and reinforce racial and ethnic divisions

Judge Child Custody case
* Courts may not use private racial bias as a justification for official court action

Question 6

Affirmative Action

Answer 6

black=white hiring equity case survives today likely
* remedy for proven intentional discrimination by the Alabama Public safety dept
* Compelling purpose = remedy proven intentional discrimination by the Alabama Dept of Public safety
* Means = It did not impose an absolute bar to white advancement, was narrowly drawn to include only specific ranks in the dept, and the dept has annoyed the court for a long time with delay

Current law
* The Court has insisted upon some showing of prior discrimination by the gov unit involved before allowing limited use of racial classification in order to remedy such discrimination
* If there is asian remedy you better show asian racism in your unit – dont include intuits for your black affirmative action, where is the evidence for it

generalized assertion that there has been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy
* No logical stopping point
* No IDENTIFIED discrimination thus no compelling purpose

Harvard Purpose
* Harvard listed some interests that it viewed as compelling (Better educating it students through diversity)
* But they cannot be subjected to meaningful judicial review – Court thought it was unclear how they are supposed to measure these goals

Harvard means
* upset that Harvard and UNC don’t have very clear, meaningful end points in these affirmative action race conscious consideration
* Harvard’s “endpoints” were unmeasurable
* Harvard cant say ok our endpoints are when we have 20% black, 20% asian, 20%white, 20% persian because already quota’s are a fuck no
* also overbroad – By grouping all asian students, for example, the universities are apparently uninterested in south asians v. east asians

Question 7

Alienage

State

Answer 7

Alienage that is not in the exception is subject to Strict Scrutiny
* the court held State’s desire to preserve limited welfare benefits for its own citizens is inadequate to justify the exclusion of resident aliens from
receiving a portion of those benefits.
* The court emphasized that the Fourteenth amendment encompassed both lawful citizens and aliens from its protections and it entitles them equal protection of the laws in the state in which they reside.

Question 8

Exception?

Alienage

State

Answer 8

a state may discriminate against aliens in a democratic process and the execution of public policy

Teacher – Norwick
* Citizenship
* Teacher case where they’re treating people
differently based on whether they took steps to
become citizens (manifested an intent or not)
* Formation and preservation (maybe) of civic
values

Police – Foley
* Citizenship
* Cannot be a state trooper if not citizen 14th EP
* Law enforcement has discretion – there are going to be some community norms and cultural norms and expectations of the community that we want our
state troopers to know and to follow within their discretion
* Aka execution of public policy

if in exception, rational basis.

Question 9

Alienage

Federally

Answer 9

If the federal government is discriminating based on alienage, the court uses RB.

Example
* Citizenship – legal
* The statute said that you’re denied Medicaid benefits unless you’ve been admitted to be permanent residents.
* Hey if youre here legally – youre contributing to the econ – you are paying taxes
* The federal gov has alot of power in foreign policy, so better left to the legislature and executive branch

Question 10

Gender Cases

Answer 10

VMI
* All male military school = The purpose of this training was to impart on students a strong moral code and instill physical and mental discipline.
* after trouble with law created parallel women school = many of the features which made VMI (D) such a unique opportunity were absent
* for the gender classification to be substantially related to the government interest/purpose, it cannot create or perpetuate legal, economic or social inferiority of women

Pregnancy case
* the Court makes an implicit distinction between gender-based classifications and gender-related ones

Alabama Divorce statute which provided that husband, not wives, could be required to pay alimony
* gender-based stereotypes may not serve to justify classifications based on sex, even when the classification benefits women.
* interest in providing for spouses left unprepared by marriage or in providing for needy spouses are government interests sufficiently important
* Failed means = poor men get screwed and the statute failed to require financially stable wives to pay alimony

All womens nursing school denied man on basis of sex
* Did not prove that women lacked opportunities in the field of nursing = bad purpose
* policy does not seek to remedy past discrimination, but only to perpetuate the stereotyped view of nursing as a woman’s job.
* bad means = failed to show that the classification substantially furthers the purported interest
* actually permits men to attend classes as auditors

Question 11

Rational basis with bite

Answer 11

food stamps case
* purpose? Fighting welfare fraud
* Found evidence that they don’t want hippies to receive welfare
* It can never be legitimate to target a politically unpopular group.

Group home for people with retardation case
* They’re trying to get a permit to be in a particular area for this group home but denied. Everyone gets it except them.
* A case will fail rational basis if it random, arbitrary, capricious = sudden change, everyone was getting it except them thus irrational it did not make sense
* Stereotypes that negative attitudes from neighbors can never be a legitimate purpose

Colorado Constitution
* It is an illegitimate purpose to write in a law that disfavors a group and keep them from seeking future relief – Colorado went too far in the last part
* now you cannot harm any group – cannot be your intent
* actually harming not equalizing

Question 12

Pass rational basis

Answer 12

Officer age case
* Using age as an proxy for those protecting the public and the officers need to do their job physically
* age is not immutable
* means is good = 50 year cutoff is rational

TX property taxes case
* basically richer areas got better schools
* Richness is not immutable, you can vote
* No FR to education

Question 13

Rule Statement for Unenumerated FR

Answer 13

• No State shall deprive any person of life, liberty, or property, without due process of law. 14. The 5th applies the same standard to Fed law. see Windsor.
• If a right is not expressly in the Constitution, there must be a showing that the right is somehow implicit in the constitutional text. Dobbs.
• In determining whether a right is unenumerated, the court must ask whether it is deeply rooted in our history and tradition and whether it is essential to our Nation’s scheme of ordered liberty. Id.
• The court can consider whether the right is part of a broader entrenched right supported by other precedents. Id; see gay marriage case.
• The court has always been reluctant to expand unenumerated FRs because, to a great extent, the court places it out of the arena of public debate and legislative action. Glucksburg.

Question 14

Unenumerated FR standards

Answer 14

• If a right in question is held not be a FR, then the Court uses RBR. Dobbs.
• The Gov action must be sustained if it is rationally related to a legitimate state purpose. Id.
• If it is a FR, then the court uses SS. Roe.
• The gov action can only be justified by a compelling interest and that the gov action must be narrowly drawn. Id.

Question 15

FR cases

Marriage Infringement

Answer 15

Boddie (indigent criminals pay)
* Right to marry was infringed because requiring payment from indigent criminals to pay for a divorce violated individuals due process rights.

Califano (lost benefits not enough)
* disabled adults relying on Social Security disability benefits → if they get married, they can lose those benefits.
* Just because YOU feel like you cannot get married → is not really an obstacle because you literally can
* No one is barring you from the application to get married in this benefits case whereas in the divorce case you literally could not get the application

Zablocki (child support not paid case)
* preventing an individual from obtaining a marriage license without court approval if the person has a minor child not in custody for whom there was a court order to pay child support
* SS analysis
* purpose – ensuring child support paid
* Means – by block marriage and STILL have issue of children not getting paid

Question 16

Obergefell – Gay marriage case

Answer 16

Marriage is essential to the human condition
* but it has not stood in isolation from developments in law and society (continuity and change)

The court reasoned
* the right to marriage is inherent in the concept of individual autonomy – contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution so why respect privacy with these rights and not the decision to enter these rights through marriage
* all Court precedent supports a two person union
* safeguards childrearing, procreation, and education related to the fundamental right of childrearing
* the Nation’s traditions make it a keystone in social order (ordered liberty!)

Question 17

Custody

Answer 17

Stanley (unmarried fathers)
* the children of unwed fathers become wards of the State upon the death of the mother
* State said because unwed fathers are presumed unfit to raise their children and it is unnecessary to hold individualized hearings to determine whether particular fathers are unfit
* Overinclusive and not narrowly tailored enough to the states purpose – If the state were truly devoted to ensuring that children have fit parents, it would not automatically presume the unfitness of an unwed father

Michael H.
* A biological father did not have a liberty interest in a relationship with his child because there was no tradition of protecting the father’s rights when the mother is married to someone else. The courts prefer upholding the sanctity of childbirth within a marriage than the potential natural father to assert parental rights.

Question 18

Family autonomy

• Grandma cant live with grandsons case
• other version case

Answer 18

Grandmother cant live grandsons
* The city suggests that any constitutional right to live together as a family extends only to the nuclear family
* History and tradition analysis – Institution of the family is deeply rooted in this nations history and tradition
* The tradition of uncles aunts cousins and especially grandparents sharing a household along with parents and children has roots deserving of constitutional recognition, especially in times of trouble
* Purpose = overcrowding, min traffic and congestion, financial burden school
* Means = the ordinance permits any family consisting only of husband, wife, and unmarried children to live together, even if the family contains a half dozen licensed drivers

Different holding when unrelated

Question 19

Child Upbringing

• No german in class case
• Grandma visitation rights case
• Amish hybrid case

Answer 19

Meyer (no german in class)
* criminalized teaching any language other than english
* held that the Constitution does not permit government interference with a parent’s right to make education-related decisions, such as a decision to have a child study a foreign language

Troxel (Grandma visitation rights case)
* Overview: Government can’t make a decision in an area that implicates a fundamental right without heeding the fundamental right subject to exceptions
* The problem with the Washington statute at issue in this case was not that it allowed grandparents to petition for visitation rights, but that it completely disregarded the fundamental right that parents have to make decisions regarding their children.
* Too broad – According to the statute any person may petition the court for visitation rights at any time and all the court has to do is follow the “best interest of the child rule”
* This gives the judge undue ability to overturn decisions of a “fit” parent
* Thus, in effect a washington court can disregard and overturn any decision by a fit custodial parent concerning visitation rights

Yoder (amish rights case) religion and upbringing so SS
* Amish parents have a constitutional right to exempt their 14/15 yo children from compulsory school attendance law because it would threaten their children’s religious beliefs.
* purpose = Whether making sure that children have basic schooling to at least age 16 is a compelling interest that justifies interfering with parents’ choice to terminate formal schooling at an earlier age
* Means = the nature of the amish community shows that additional schooling is unnecessary

Question 20

Right to Procreate

involuntary sterilization

Answer 20

Skinner (involuntary sterilization case)
* SCOTUS has held that the right to procreate is a fundamental right and therefore any attempt by the government to impose involuntary sterilization has to meet SS
* If a law will forever deprive one of a liberty it will not survive
* Underinclusive because two similarly situated criminal offenses won’t be treated the same under the sterilization criminal law

Question 21

Right to Purchase and Use Contraceptives

• married people cannot buy contraceptives case
• no contraceptives to unmarried individuals

Answer 21

Griswold (married people cannot buy contraceptives)
* operates directly on an intimate relation of husband and wife
* in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by a means that has a destructive impact upon the marital relationship.
* Right to procreate but also the right of when to procreate

Eisenstadt (no contraceptives to unmarried individuals!)
* If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as a decision whether to bear or beget a child
* EP analysis
* The court said that the prohibition of distributing contraceptive serve no legitimate government purpose

Question 22

Dobbs

NO HISTORY

Answer 22

The proper legal analysis is History and Tradition
* Many states have a expansive history of criminalizing abortion
* common law described it as criminal
* although authorities differed on the severity of punishment, none endorsed it
* no common law case/authority that suggests a positive right to procure abortion at any stage
* colonial times = illegal
* mostly illegal (states) until roe
* an unbroken tradition of prohibiting abortion with criminal punishment existed until Roe
* no pre-roe history of abortion protection!

Essential part of a broader entrenched right (ordered liberty)
* ordered liberty sets limits and defines the boundry between competing interest
* Roe and Casey each balanced b/w interests of a woman who wants abortion and interests of potential life
* BUT the people in various states may evaluate those interests differently
* some states think right to abortion should be more than roe; others way less
* so how can it be so essential?

The state can have an interest in protecting potential life
* none of the other precedents take this into account

Question 23

Right to refuse treatment

YES HISTORY

Vegatative coma case

Answer 23

Cruzan (vegatative coma case)
* guardian seeks to discontinue lifesaving medical treatment but state requires clear and convincing evidence of vegetables consent to this
* at common law, the touching of another without consent or legal justification was a battery.
* thus we have informed consent for medical treatment
* The logical corollary of this doctrine is that the patient generally possess a right to not consent, or to refuse treatment
* Thus SS
* purpose = protection/preservation human life
* means = Not all incompetent patients will have loved ones available to serve as surrogate decision-makers, and even where family members are present, there will be unfortunate instances in which family members will not act in the patient’s best interest

Question 24

Assisted Suicide

NO HISTORY

washington assisted suicide ban

Answer 24

Glucksberg (washington assisted suicide ban)
* It has always been a crime to assist a suicide in the State of Washington.
* In almost every State—indeed, in almost every western democracy—it is a crime to assist a suicide.
* Indeed, opposition to and condemnation of suicide—and, therefore, of assisting suicide—are consistent and enduring themes of our philosophical, legal, and cultural heritages
* voters and legislators continue for the most part to reaffirm their States’ prohibitions on assisting suicide
* RB review
* purpose = protecting ethics med profession and human life
* means = reasonably ensures against risk by banning

Question 25

Lawrence

YES HISTORY

private consensual homosexual activity case

Answer 25

• Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533.
• The English prohibition was understood to include relations between men and women as well as relations between men and men.
• Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men.
• Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private.
• A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault.

Question 26

Rule Statement for Freedom of Speech content-based

Content based v. Content neutral

Answer 26

• Congress shall make no law abridging the freedom of speech. 1st.
• A government has no power to restrict expression because of its message, its ideas, or content. Reed.
• Regulation of speech is content based if a law applies to a particular speech because of the topic discussed or the idea or message expressed and will be subject to strict scrutiny. Id.
• Thus, content-based laws are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. Id.
• Content-neutral laws are those that are agnostic to speech or are time, manner place solely. see Electric billboards case; see chicago teachers picketing case.
• Content-neutral laws are subject to IS, which must be narrowly tailored to serve a significant gov interest. see electric billboards case.

Question 27

Reed

Town sign case

Answer 27

Reed (town sign case)
* City ordinance that regulated presence of outdoor signs, but had 23 categories
* Town’s sign code is content based on its face: Defines temporary directional and sets rule on it, Defines political signs and sets rules on it
* SS
* Purpose = Preserving the town’s aesthetic qualities Traffic safety
* Means = Aesthetics
* Temporary directional signs are no greater eyesore then ideological or political ones yet the code allows for unlimited proliferation of larger ideological signs while strictly limiting directional ones.
* Means = Traffic safety
* How is limiting temporary directional signs necessary to eliminate threats to traffic safety but limiting others is not. How do directional signs pose a greater threat to traffic than political signs?

Question 28

City of Austin

Off-premises Digital billboards

Answer 28

City of Austin (Off-premises Digital billboards)
* The city distinguished between on premises and off premises signs in it’s code
* It especially regulates off premises signs to protect the aesthetic value and public safety
* Austin regulation of digital signs is content neutral thus IS
* The cities provisions at issue here do not single out any topic or subject matter for differential treatment
* A signs substantive message itself is irrelevant to the application of the provisions
* Rather the cities provisions distinguish based on location
* A given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not

Question 29

City of Chicago v. Mosley

Answer 29

Ordinance prohibiting picketing within 150 feet of school during school hours. So far neutral which means IS. BUT they added an exception for peaceful labor picketing. now its content/viewpoint.
* The central problem with Chicago’s ordinance is that it describes permissible picketing in terms of content.
* Peaceful picketing on the subject on the school labor management dispute is permitted, but all other peaceful picketing is prohibited
* Government may not grant the use of a forum to people whose views it finds acceptable (picketing disputing the school) but deny use to those wishing to express less favored or more controversial views.

Question 30

Williams-Yulee v. Florida Bar

judge election money case

Answer 30

She argued that the First amendment protects a judicial candidate’s right to solicit campaign funds, because money is speech. Court said SS applies.
* prohibited candidates for judicial office from personally soliciting campaign funds, but allowed the establishment of a committee to “secure and manage funds.”
* compelling interest in protecting the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary
* Judges, who are supposed to exercise strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity.
* Judge argued not narrowly tailored enough through least restrictive means b/c they can discuss issues with any person but they cannot ask for money personally but their campaign can
* however, FL cannot accomplish its compelling interest through the less restrictive means of recusal rules and campaign contribution limits because they would have to recuse themselves from everything

Question 31

Alvarez

Stolen Valor Case

Answer 31

Alvarez (stolen valor case)
* Stolen Valor Act makes it a crime for a person to falsely claim to have received military honors or decorations
* Alvarez lied about having won the congressional medal of honor
* Content based speech law
* SS
* Means
* Gov failed to meet its burden to prove the harms from people lying about military honors to justify the law
* Gov could achieve the goals in narrower (less harmful to free speech) ways, like making lists of awards available to easily fact check and expose lying people

Question 32

Rule statement for Viewpoint.

Answer 32

Viewpoint discrimination will never survive SS. See Matal; Rav.

Question 33

Viewpoint cases

• Slants
• Fuct
• Fighting words viewpoint case

Answer 33

Matal (slants trademark)
* Matal wanted to trademark the word “slants” by reclaiming the word but the USPTO rejected the trademark on the ground that it was disparaging to Asians under the Lanham Act.
* The court said this is an obvious form of viewpoint discrimination because you cannot see something as disparaging unless you put a lens of viewpoint on it.

Ianco (fuct case)
* Clothing manufacturer trademark registration for “F.U.C.T.” was denied based on a provision of the Lanham act that prohibited registration of trademarks which are “scandalous” or “immoral”
* Distinguishing between two different ideas and picks one idea as the preferential view
* The statute clearly favors sets of ideas that are “inducing societal nods of approval” and are “aligned with conventional moral standards”

Rav (fighting words viewpoint case)
* Ordinance prohibited placing on public or private property symbols . . .
* Although the phrase in the ordinance, “arouses anger, alarm or resentment in others,” has been limited by the Minnesota Supreme Court’s construction to reach only those symbols or displays that amount to “fighting words,”
* the remaining, unmodified terms make clear that the ordinance applies only to “fighting words” that insult, or provoke violence, “on the basis of race, color, creed, religion or gender.”
* The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.

Question 34

Conduct + Speech

Answer 34

• Congress shall make no law abridging the freedom of speech. 1st.
• When speech and conduct are mixed, a Court must first determine whether the conduct was expressive. Flag burning case.
• conduct is expressive when there is an intent to convey a specific message and there is a substantial likelihood that message would be understood by those receiving it. Spence.
• if it is expressive, a Court will decide whether the regulation is related to the suppresion of free expression. Flagburning.
• If it is not related to the suppresion of expression, the regulation only need to further an important or substantial governmental interest and the incidental restriction of the First Amendment freedoms is no greater than is essential to the furtherance of that interest. Draft card case.
• If it related, the Court will apply SS. Flag burning case.

Question 35

O’brien

Draft card case

Answer 35

Gov Action
* Involved individuals who burned their draft cards to protest the Vietnam war in violation of a federal law which made it a crime to knowingly “destroy” or “mutilate” draft registration certificates – facially conduct
* O’brien destroyed his draft card in front of a courthouse – no question this is speech

Important gov interest
* Administrative work, efficacy of the draft

Found no intent to suppress free speech
* Aka here, it is administrative, the draft cards, it is not trying to stop people from expressing themselves politically

Incidental? meaning?
* Meaning it was incidental. It was almost collateral damage we weren’t intending to harm.
* They are essentially saying → is it the least restrictive means to speech?
* So here they say, well, if you’re really trying to make it so that someone literally has their card and knows their number.
* I’m not really sure how in 1968 we could have done this differently.

Question 37

Freedom of Association rule statement

Answer 37

under the 1st and 14th Amendment, the freedom to associate, although implicit, has been protected. NAACP.
* The court has found infringement of the freedom to associate in forced disclosure and forced association scenarios. Boy scouts.
* to receive 1st amendment protection, a group must engage in expressive association. Id.

The right to associate for expressive purposes is not absolute
* infringements may be justified if there is a compelling state interest;
* unrelated to the suppression of ideas; and
* cannot be achieved through means significantly less restrictive of associational freedoms. Jaycees.

Question 38

Freedom of Religion Rule Statements

Answer 38

• Congress shall make no law prohibiting the free exercise of religion. 1st.

State laws are subject to the smith test. Smith.
* Incidental burdens to religion are not subject to strict scrutiny under the Free Exercise clause if the law is generally applicable and neutral. Foster Care Case.
* If it is not generally applicable or neutral, the gov must demonstrate its course was justified by a comelling state interest and was narrowly tailored. Coach case.

Fed laws are subject to SS. RFRA.

Question 39

Establishment Clause Rule Statement

Answer 39

• Congress shall make no law respecting an establishment of religion. 1st.
• the Establishment Clause must be interpreted by reference to historical practices and understandings. Football Coach case.

This Court has long held that the government may not, consistent with a historically sensitive understanding of the Establishment Clause
* make a religious observance compulsory.”
* Government “may not coerce anyone to attend church,” nor
* may it force citizens to engage in “a formal religious exercise.” Football Coach case