Constitutional Law Flashcards
Justiciability
Whether a case can be decided by a federal court depends on:
1) what case is requesting (no advisory opinions)
2) when is the case brought? (is it ripe or moot)
3) who is bringing the case? (does P have standing)
Advisory opinion
Lacks actual dispute between adverse parties or legally binding effect on the parties
Ripeness and mootness
Ripeness = no pre-enforcement review unless:
1) fit for decision (legal issue not factual)
2) P would suffer substantial hardship without review
Mootness = no live controversy and ongoing injury
Exceptions to mootness
1) capable of repetition but evading review because of short duration
2) D voluntarily stops but is free to resume
3) class actions with one live claim
Standing
1) Injury
2) causation
3) redressability
Injury in fact
1) particularized = injury affects P in a person and individual way
2) concrete = injury actually exists
Citizenship standing
No standing merely as citizen or taxpayer except:
1) challenge individual tax liability
2) congressional spending in violation of the Establishment Clause
Third party standing
No third party standing BUT:
1) A claimant with standing in their own right may assert the right of a third party if:
- it is difficult for the third party to assert their own rights or
- a close relationship between the claimant and the third party
2) An organization has standing to sue on behalf of its members if:
- there is an injury in fact to the members
- the members’ injury is related to the organization’s purpose AND
- individual member participation in the lawsuit is not required
3) Free speech claim on behalf of others whose speech would be protected under 1st Am, alleging that the government restricted substantially more speech than necessary
Causation for standing
Must be a causal connection between the injury and the conduct complained of
Redressability for standing
Decision in the litigant’s favor must be capable of eliminating their harm
Congressional conferral of standing
Congress cannot grant standing to someone who doesn’t have an injury, but it can pass a law that creates new interests, the injury of which may be sufficient for standing
Standing to enforce government statutes
P may have standing to enforce a federal law if they are within the zone of interests Congress meant to protect
Test cases
Standing is not defeated just because a P brings a case to test the constitutionality of a law
Sovereign immunity
11th Am = bars a private party’s suit against a state in courts and agencies, unless:
1) express waiver = states consent to be sued
2) implied/structural waiver = yield to certain federal powers
3) local governments can be sued
4) states can sue other states and the federal government can sue states
5) bankruptcy proceedings
6) certain actions against state officers
- personal damages
- enjoin future violative conduct
7) Congress removes the immunity
Political questions
Issues:
1) constitutionally committed to another branch of government or
2) inherently incapable of judicial resolution
Examples:
- challenges to congressional procedures for ratifying constitutional amendments
- President’s conduct on foreign policy
- political gerrymandering
Original jurisdiction of Supreme Court
1) All cases affecting:
- ambassadors
- public ministers
- consuls
2) Cases where a state is a party
Supreme Court’s appellate jurisdiction
1) All cases in which federal judicial power extends under Article III:
- review of constitutionality of acts of other branches
- review state acts under Supremacy Clause
2) Cases where there has been a final judgment by the lower court
A) writ of certiorari = SCT has complete discretion to hear these cases, which come from:
- cases from the highest state court involving 1) the constitutionality of a statute or 2) a state statute allegedly violating federal law
- all cases from federal courts of appeals
B) appeal = SCT must hear these cases, which are confined to decisions by three-judge federal district court panels that grant or deny injunctions
Adequate and independent state grounds
SCT will not review a state court decision that is based on adequate and independent state law grounds, even if federal issues are involved
Adequate grounds = fully dispositive of the case
Federal legislative power
Congress can exercise powers enumerated in Article I, Section 8 plus any necessary and proper powers to carry out its enumerated powers
No federal police power except
- federal lands
- military bases
- reservations
- D.C.
Necessary and proper clause
Congress can use any rational, constitutional means to exercise an enumerated power, as long as it doesn’t violate another provision of the constitution
Can NOT be used alone –> it must work in conjunction with another federal power
Taxing and spending power
Congress may tax and spend to promote the general welfare
- any public purpose not prohibited by constitution
Spending power conditions
Congress can impose conditions on the grant of money to state or local governments (“strings”)
Conditions are valid if they are:
1) clearly stated
2) related to the purpose of the program
3) not unduly coercive
4) do not otherwise violate the constitution
Most federal taxes will be upheld if…
they bear some reasonable relationship to revenue production or to promoting the general welfare
Commerce power
Congress has power to regulate all commerce with foreign nations, tribes and among the states
Federal law regulating interstate commerce must:
1) regulate the channels of interstate commerce
2) regulate the instrumentalities of interstate commerce and persons and things in interstate commerce or
3) regulate activities that have a substantial effect on interstate commerce
Regulating intrastate activity
Congress can regulate intrastate commercial activity if there is a rational basis for which the activity in the aggregate substantially affects interstate commerce
- Must be commercial
- cannot compel activity
- 10th Am = can’t regulate noneconomic activity traditionally regulated by the states
- e.g., Congress can’t criminalize intrastate domestic violence against women
Power to prohibit private discrimination
Commerce clause gives Congress power to prohibit private discrimination in activities that might have a substantial effect on interstate commerce
- e.g., hotels, restaurants
Public discrimination = congress can directly regulate under 14th Am
Other congressional powers
1) war and related power
2) investigatory power
3) property power = eminent domain
4) postal power = exclusive
5) power over citizenship
6) admiralty power
7) power to coin money and fix standards for weights and measures
8) patent/copyright power
Delegation of legislative power
Congress can delegate rule-making or regulatory power to the executive or judicial branches as long as:
1) intelligible standards are set and
2) power isn’t something uniquely confined to Congress
Major questions doctrine
Regulation by an agency of extraordinary economic and political significance (“major questions”) needs clear congressional authorization
Bicameralism and presentment requirements
Bicameralism = passage of a bill by both houses of Congress
Presentment = presenting bill to president for signature or veto
1) no line-item vetoes
2) no legislative vetoes
Speech or debate clause
Conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are immune from prosecution
Implied presidential powers
1) Authorized by Congress = power at its strongest
2) Congress is silent but action is supported by history and necessity = twilight zone
3) Against express will of Congress = action invalid
President’s appointment powers
- ambassadors
- SCT justices
- other officers not provided for in Constitution
Removal powers
By president = high level, purely executive officers at will without any interference by Congress
By Congress = executive officers ONLY through the impeachment process
Veto power
President can veto
Congress can override veto by a 2/3 vote of each house
Pocket veto
1) 10 days to exercise veto power
2) if no action and Congress is not in session = bill automatically vetoed
3) if no action and Congress is in session = bill becomes law
Power over external affairs
No power to declare war, but can act militarily in actual hostilities against U.S. as commander in chief without congress declaring war
Treaty power
1) negotiated by President
2) approved by 2/3 vote in Senate
Treaties and conflicts of law
1) Constitution
2) Federal law, including treaties
3) If a treaty and federal law conflict, last in time prevails
4) Executive agreements
5) State law
Executive agreements
- Signed by President and the head of a foreign country
- used for any purpose a treaty is used for
- no Senate approval required
Executive privilege
President has privilege to keep certain presidential communications secret, especially national security secrets
Exception = criminal proceedings
Executive immunity
Absolute immunity from civil damages based on any action taken within scope of office
Impeachment
President, VP and all civil officers are subject to impeachment
1) Bringing impeachment charges = majority vote in House
2) conviction and removal from office = 2/3 vote in Senate
President’s pardon power
President has unqualified power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
10th Amendment
Powers not granted to the federal government are reserved to states or people
States have general police powers = they can regulate the health, safety and welfare of their people
- upheld if they have a rational basis and legitimate purpose
Exclusive federal powers
- some enumerated powers are exclusively federal because the Constitution limits or prohibits the use of the power by states
- other enumerated powers are exclusively federal because the nature of the power itself can only be exercised by feds
Anti-commandeering principle
- Congress cannot require states to enact state laws or enforce federal laws
- Congress cannot pass a tax that applies only to the state governments
- Regulation of both private people and the states = valid
Intergovernmental immunity doctrine
States cannot interfere with or control the operations of the federal government
- A state’s nondiscriminatory, indirect taxing of the federal government is permissible if it doesn’t unreasonably burden the federal government
Express preemption
Federal law expressly says that states may not adopt laws concerning the subject matter of the federal legislation
- express preemption clauses are narrowly construed
Implied preemption
1) conflict preemption = impossible to follow both federal and state law
2) frustration preemption = state law frustrates or impedes the achievement of a federal objective
3) field preemption = federal law occupies the entire field, barring any state or local law, even if the state law is nonconflicting
- look to regulatory scheme to determine if Congress intended to preempt the entire field
Presumption against preemption
Court start with the presumption that historic state police powers are not to be preempted unless that was the clear and manifest purpose of Congress
Interstate compact clause
Agreements between states
- if agreement increases states’ power at the expense of federal power, congressional approval is required
Privileges and immunities
Prohibits states from discriminating against out of state citizens concerning:
1) important commercial activities and
2) fundamental rights
Privileges and immunities clause only applies when
discrimination by a state against nonresidents is intentionally protectionist in nature
State laws can only discriminate against nonresidents with regard to an important commercial activity or fundamental right if…
the law is necessary to achieve an important government purpose and there are no less restrictive alternatives
- must show that nonresidents either cause or are part of the problem the state is trying to resolve and this law is the only way to solve it
14th Amendment privileges of national citizenship
States cannot deny citizens the privileges or immunities of national citizenship, including:
- right to travel = law that distinguishes between new residents based solely on the length of their residency serves no legitimate state interest
Dormant commerce clause
States can enact laws regulating local aspects of interstate commerce IF:
1) Congress has not enacted laws on the subject AND
2) the state does not discriminate against or unduly burden interstate commerce
State laws that discriminate against interstate commerce
Almost always invalid if they discriminate to protect local economic interests, unless:
1) necessary to achieve an important noneconomic state interest and
2) no reasonable nondiscriminatory alternatives available
Nondiscriminatory state laws
A law that treats local and out of states interests alike is presumptively valid UNLESS:
- the burden outweighs the promotion of a legitimate local interest (the benefit)
Exceptions to the Dormant Commerce Clause
1) congressional approval
2) state as a market participant
3) favoring government performing traditional government functions
State’s durational residency requirement (waiting period) for dispensing benefits
Subject to the strict scrutiny test
- usually found not to satisfy test
- interest in fiscal integrity is NOT sufficient to justify a one-year waiting period of welfare or health benefits
Power of states to tax interstate commerce
Discriminatory taxes = state taxes that discriminate against interstate commerce violate the Commerce Clause
- may also violate Privileges and Immunities Clause or EPC
Nondiscriminatory taxes = valid IF:
1) substantial nexus between activity and the state
2) fair apportionment
3) fair relationship to services or benefits provided by the state
Exceptions to incorporation of Bill of Rights
1) 5th Am’s prohibition of criminal trials without a grand jury indictment
2) 7th Am’s right to jury trial in civil cases
State action can be found in seemingly private individuals who:
1) perform exclusive public functions = activities traditionally and exclusively performed by government or
2) have significant state involvement = state affirmatively facilitates, encourages or authorizes acts of discrimination in private conduct
Rational basis review
Applies to regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications
Law is upheld if it is rationally related to a legitimate government purposes
- usually valid unless arbitrary or irrational
- BOP = person challenging the law
Not suspect or quasi-suspect classes
age, disability, poverty
Intermediate scrutiny
Applies to regulations involving quasi-suspect qualifications (gender and legitimacy)
Law is upheld if it is substantially related (or narrowly tailored) to an important (or significant) government purpose
- BOP = unclear, but usually on the government
Strict scrutiny
Applies to regulations affecting fundamental rights or involving suspect classifications
Law is upheld if it is necessary (least restrictive alternative) to achieve a compelling government purpose
- difficult standard to meet –> laws often invalidated
- BOP = on government
Suspect classifications
race, national origin, alienage
Deprivation under 5th or 14th Amendments
intentional or reckless government conduct
- not merely negligence
Liberty
Physical and legal freedom
- NOT mere harm to reputation
Property
- real or personal
- intangibles
- some government benefits = reasonable expectation of continued receipt
- must be a legitimate claim or entitlement to benefit based on state or federal law or policy
Procedural due process requires:
1) notice
2) hearing
3) neutral decision maker
Kind of hearing required determined by balancing test:
- importance of interest to individual and
- value of specific procedural safeguards to that interest
AGAINST - government interest in fiscal and administrative efficiency
Due process rights are subject to waiver if:
Waiver is voluntary and made knowingly
Substantive due process
Guarantees that laws will be reasonable and not arbitrary
Applicable standards for substantive due process
Fundamental right = strict scrutiny
Non-fundamental right = rational basis review
Enumerated fundamental rights
- All First Am rights
- right to interstate travel
- privacy-related rights
- voting
Unenumerated fundamental rights
1) Deeply rooted in nation’s history and tradition AND
2) essential to the concept of ordered liberty
Relationship between substantive due process and equal protection
SDP = government denies everyone the right
EP = government denies a person or class of persons the right (discrimination)
Privacy-related rights
- marriage
- procreation
- contraception
- childrearing
Subject to strict scrutiny
Rights related to marriage
1) ban on interracial marriage = fails SS
2) ban on same-sex marriage = fails SS
3) Restricting rights of prison mates to marry = reasonably related legitimate penological interests
4) minimum age requirements = RBR
Abortion
No fundamental right to abortion in the Constitution
- states may regulate
- restrictions on abortion are entitled to a strong presumption of validity (RBR)
Right to interstate travel
Fundamental right to:
1) travel from state to state and
2) be treated equally after moving into a new state
Invalid residency requirements
- one-year residency to receive full welfare benefits
- one-year residency to receive state-subsidized medical care
- one- year residency to vote in state
Valid residency requirements
- thirty-day residency to vote in state
- one-year residency to get divorced
Right to vote
Fundamental right = restrictions other than on basis of residence, age, and citizenship are invalid unless they pass strict scrutiny
Validity of restrictions on right to vote
- property ownership = invalid
- residency requirements = reasonable time periods are valid
- identification = valid
- poll taxes = invalid
- early registration for primaries = valid
One person, one vote principle
Applies whenever any level of government decides to select representatives to a governmental body by popular election from individual districts
- state and local elections = populations of voting districts must be substantially equal (10% variance presumptively valid)
- congressional elections = must be almost exact mathematical equality
Constitutionality of gun permit laws
Criteria must be clear
- any law that gives an official discretion is unconstitutional
Standard of review for right to bear arms
Government must justify regulation by demonstrating it is consistent with the country’s historical tradition of firearm regulation
Right to fair notice
Laws must give fair notice of conduct that is forbidden or required
- regulation that fails to give fair notice violates DPC
Unspecified rights
Standard of review unclear, but because SCT has not named as fundamental rights, assume RBR
- intimate sexual conduct
- right to refuse medical treatment
Right to refuse medical treatment
Part of an individual’s liberty right
- NO right to assisted suicide
- states can compel vaccination against contagious diseases
Applicable standards for equal protection claims
Fundamental right or suspect class = strict scrutiny
Quasi-suspect class = intermediate scrutiny
No fundamental right or quasi-suspect or suspect class = rational basis review
Proving discriminatory classification
Must be intent on part of government to discriminate:
- facial discrimination
- discriminatory application of a facially neutral law
- facially neutral law with a discriminatory impact on a protected class
Schools and racial classification
- Segregation = unconstitutional
- Integration by bussing = must be narrowly tailored to remedy past segregation
- racial balancing (assigning students to schools on the basis of race solely to promote diversity) does not satisfy SS
Affirmative action
Must be narrowly tailored for a compelling interest (SS):
1) remedying past government discrimination
- NOT for remedy of general past societal discrimination
2) sometimes where there was no past discrimination, but must be narrowly tailored
Affirmative action in higher education
Having a diverse student body is NOT an interest compelling enough to overcome SS
Alienage classifications by federal government
Congress has plenary power over aliens, so federal alienage classifications are NOT subject to SS
- valid if they are not arbitrary and unreasonable
Alienage classifications by state and local governments
Generally subject to SS EXCEPT:
- participation in state government or non-elective offices involving important public policy (e.g., police officers, schoolteachers) = RBR
Undocumented aliens
NOT a suspect class
- laws are subject to RBR
- denial of free public education to undocumented children is invalid
Gender classifications
Quasi-suspect = intermediate scrutiny
- must be substantially related to an important government purpose
- government bears burden of showing an exceedingly persuasive justification for discrimination
Invalid gender classifications
1) gender-based death benefits
2) gender-based peremptory strikes
3) alimony for women only
4) discriminatory minimum drinking age
Valid gender classifications
1) discriminatory statutory rape laws
2) all-male draft
3) requiring male fathers to prove paternity of non-marital children born abroad to obtain US citizenship for them
Distinctions between marital and nonmarital children
Reviewed under intermediate scrutiny = must be substantially related to important government purpose
- laws discriminating against entire class of nonmarital children are likely invalid
- laws distinguishing within the class are more likely to be valid
Other classifications evaluated under RBR
-age
-disability
- wealth classifications
Taking Clause
5th Am = private property may taken:
1) for public use
2) with just compensation
Includes personal and real property and intangibles
What is a taking?
- physical confiscation
- permanent, regular occupation
- temporary occupation = case by case
Exceptions to what is a taking
1) developmental exception
2) public emergency exception (war)
Use restrictions (regulatory takings)
Regulation leaves no economically viable use of the land = taking
Decreasing economic value = balancing test:
1) economic impact
2) investment-backed expectations
3) public interest
“public use” limitation
Anything rationally related to a legitimate public purpose (health, welfare, safety, economic reasons)
Just compensation
Fair market value when taken
Inverse condemnation
Taking by occupation or regulation without condemnation proceedings = owner can bring action for inverse condemnation
If granted, government must either:
1) pay just compensation OR
2) terminate regulation and pay damages that occurred while regulation was in effect
Taking vs regulation
1) condemnation of land to build highway = taking
2) creating public access easement on private property = taking
3) abolishing inheritance rights = taking
4) zoning ordinances that merely prohibit most beneficial use = regulation
5) ordering destruction of diseased trees = regulation
6) landmark ordinances generally = regulation
Contract clause
limits ability of state and local governments to enact laws that retroactively impair contract rights
- no comparable clause applicable to federal government
Standard of review for impairment of public vs private contracts
Public contracts = heightened scrutiny, especially if if legislation reduces contractual burdens on the state
Private contracts = intermediate scrutiny
Ex post facto laws
Cannot pass a law that retroactively alters criminal offenses of punishments in a substantially prejudicial manner for the purpose of punishment for some past activity:
1) criminalizes act that was innocent when done
2) imposes greater punishment for act than it was done
3) reduces evidence required to convict from what was required when committed
Bills of attainder
Legislative acts that punish individuals without trial are unconstitutional
What is speech?
- words
- symbols
- conduct that is:
1) inherently expressive OR
2) intended to convey a message AND reasonable likely to perceived as such
Unprotected speech
1) incitement = intended and likely to produce imminent lawless action
2) fighting words = likely to provoke an immediate violent response
- true threats = words intended to convey a serious threat of bodily harm
3) obscenity
4) defamatory speech
5) some commercial speech
6) neutral regulations
Obscenity
Depiction of sexual conduct that taken as a whole:
1) appeals to prurient interest in sex using a contemporary community standard
2) is patently offensive under contemporary community standard AND
3) lacks serious value using a national, reasonable person standard
Private possession of obscene material
In the home = cannot be punished
- except for child porn
Land use regulation for obscenity
Zoning regulation may limit location or size of adult entertainment establishments if the regulation is designed to reduce the secondary effects of such businesses
- can NOT ban businesses altogether
Defamation of a public official or public figure
Involves the First Am
P must prove all elements of defamation PLUS:
1) falsity
2) actual malice
- knowledge that of falsity OR reckless disregard for the truth
Defamation of a private figure on matter of public concern
matters of public concern = issues important to society or democracy
Actual damages = P must prove negligence
Punitive/statutory damages = P must prove actual malice
Commercial speech is NOT protected if it is:
1) false
2) misleading OR
3) about illegal products or services
Regulation of commercial speech upheld only if it:
1) serves a substantial government interest
2) directly advances that interest
3) narrowly tailored to serve that interest (reasonable fit between goal and means chosen)
Required disclosures in commercial speech
May be required if they are not unduly burdensome and are reasonably related to state’s interest in preventing deception
Content-based regulations
Restricts speech based on the subject matter or viewpoint of the speech
Subject to SS and presumptively unconstitutional
Content-neutral regulations
Restrictions that are both subject matter-neutral and viewpoint-neutral
Subject to intermediate scrutiny = must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than is necessary to further those interests
Time, place and manner restrictions
Speech restrictions on government property
Extent to which government can restrict speech on government property depends on type of property involved:
1) public forum
2) designated public forum
3) limited public forum
4) nonpublic forum
Traditional public forum and designated public forum
Traditional = public property historically open to speech-related activities
Designated = public property not historically open for speech-related activities, but which govt has opened on a permanent or limited bases by practice or policy
Content-based regulation = SS
Content-neutral regulation = intermediate scrutiny
- must leave open alternative channels of communication
Limited public forum and nonpublic forum
Limited = government forums not historically open for speech and assembly, but opened for specific speech activity
Nonpublic = government property not held open for speech activities
Government can restrict speech to preserve spaces for their intended uses
Valid if:
1) viewpoint neutral and
2) reasonably related to a legitimate govt purpose
Viewpoint based = subject to SS
Speech restrictions on higher education campuses
Forum doctrine applies
Speech restrictions in public schools
Public schools ≠ public forums
- speech can be reasonably regulated to serve school’s education mission
Personal student speech on campus
Cannot be censored absent evidence of substantial disruption
- exception = speech promoting illegal drug use
Personal student speech off campus
Limited to restricting speech to prevent:
- cheating
- bullying
- threats
- safety or educational concerns that outweigh speech interests
School speech
Restrictions on speech related to school’s teaching must be reasonably related to legitimate educational concerns
Unprotected government employee speech
Speech while at work concerning a private concern or a matter of public concern = punishable if disruptive to work environment
NO 1ST AM PROTECTION
Protected government employee speech
Speech on matter of public concern not made pursuant to employee’s official duties = balancing test
- value of speech against gov’t interest in efficient workplace operation
Loyalty oaths
Cannot be overbroad or vague
overbroad = prohibiting membership in Communist party or requiring abstention from advocating overthrow of the government
invalid = oath requiring public employees to support the flag
Valid = oath requiring employees to support Constitution and oppose unlawful overthrow of govt
Void for vagueness doctrine
DPC invalidates laws that don’t give notice of what is prohibited
- applies more strictly when 1st Am activity is involved
Overbroad regulations
Speech or speech-related conduct regulation invalidated as overbroad if it punishes substantially more speech than is necessary
Effect of overbroad regulation
Facially invalid unless threat of constitutionally protected expression has been removed by a court
Prior restraints
Court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards
- disfavored but treated under standard free speech doctrine
- usually fail absent a special societal harm
1st Am right to access trial
1st Am guarantees public and the press a right to attend criminal and civil trials
- right may be outweighed by an overriding interest
Free Exercise Clause
Prohibits government from punishing someone on the basis of their religious belief or related religious status or conduct
Religious beliefs for 1st Am purposes
Includes tenets of traditional religions and beliefs that play a role in believer’s life
- SCT has never held that an asserted religious belief was not religious for 1st Am purposes
Sincerity vs truthfulness for religious belief
Courts can question the sincerity of a person’s belief but not the truthfulness of the belief
Laws that discriminate based on religion are subject to
strict scrutiny
Law discriminates against religion if
it is either:
1) facially discriminatory based on religious OR
2) facially neutral but narrowly tailored to target religion (by design)
Neutral laws of general applicability
Laws that are facially neutral and generally applicable are NOT subject to Free Exercise Clause
- law that gives officials discretion to grant exemptions is NOT generally applicable –> refusing religious exemption request may trigger SS
Religious exemptions from generally applicable laws
Free Exercise Clause does NOT require religious exemptions from generally applicable laws that happen to burden religious conduct
- BUT granting such an exemption does NOT violate the Establishment Clause
Exceptions to no requirement for religious exemptions
1) Ministers = religious organizations exempt from suits alleging employment discrimination by ministers and ministerial positions
2) Unemployment compensation cases = cannot exclude people who quit their jobs for religious reasons
3) Right of Amish not educate children = exemption from law requiring compulsory school attendance until age 16
Religious organizations and government benefit programs
States cannot exclude otherwise qualified entities from public benefits because of religious status
- no compelling interest in doing so
Establishment Clause
Prohibits government sponsorship of religion
- government cannot aid or formally establish a religion
- government must be neutral toward religion
Neutrality principle in the Establishment Clause
The government generally must remain neutral with respect to religion, neither favoring nor disfavoring it
Coercion in exercise of religion (Establishment Clause)
Government may not directly or indirectly coerce people to exercise or refrain from exercising their religion
History and tradition approach for Establishment Clause
EC must be interpreted by reference to historical practices and understandings
- Court looks to Founders’ intent and original meaning of the Establishment Clause (would Founders have considered it acceptable?)
- Religious message may be neutralized, making it acceptable in certain settings (e.g., legislative prayer, which has been around since the Continental Congress)
Principles of the Establishment Clause to analyze
1) neutrality
2) coercion
3) history and tradition
4) Founders’ intent
Types of Establishment Clause cases
1) cases preferring one religious sect over others
2) limited group of cases unconnected to financial aid or education
3) cases involving financial aid to religiously affiliated institutions
4) cases concerning religious activities in public schools
Sect preference and the Establishment Clause
Government action that prefers one religious sect over another violates the Establishment clause
- SS applies to determine validity
- favoritism is not necessary to achieve a compelling interest
Cases unconnected to financial aid or education and Establishment Clause
A law favoring or burdening religion or a specific religious group is invalid
- e.g., exempting only “traditional religions” from state registration requirements)
BUT
A law favoring or burdening a large segment of society that happens to include religious groups will be upheld
- e.g., Sunday closing law
Cases involving financial benefits to religious institutions
Statute authorizing governmental aid to a religiously affiliated institution must be neutral toward religion
1) recipient based aid = neutral benefit program is valid even if public funds go to a religious org
2) aid to grade and high schools = state-subsidized private education cannot deny same funding to religious schools
Religious activities in public schools and the Establishment Clause
if school accommodates non-religious use of school property, it must also accommodate religious groups
