First Amendment Flashcards
What is the Establishment Clause?
In General
i) Rule (discriminatory legislation)—Where a law prefers one religion (or religious sect) over others, strict scrutiny applies
ii) Rule (neutral legislation)—Where legislation is neutral on its face (Lemon test):
(1) The statute must have a secular legislative purpose;
(2) The principal or primary effect or purpose must neither advance nor inhibit religion; and
(3) The statute must not foster an excessive government entanglement with religion
Establishment Clause and Religious Activities Conducted at Public Schools & Public School Curriculum
Rule: School prayer is per se unconstitutional
(1) Other invalid activities at public schools:
(a) Period of silence “for meditation or voluntary prayer”
(b) Posting Ten Commandments on the walls of classrooms
(c) Rabbi/other cleric to conduct non-denominational prayer as part of a graduation ceremony
(d) Prayer before a high school football game
(2) Valid activity: religious club holding its meetings in a public school i) State cannot put religious classes in public schools (i.e., anti-evolution laws)
Establishment Clause and Other Government Endorsement of Religion
i) Examples of constitutional action:
(1) Including a crèche in a Christmas display in a park, especially where there’s also a Santa Claus and candy canes
(2) Posting the Ten Commandments as a monument along with other monuments surrounding the State Capitol
(3) Sunday closing laws
ii) Examples of unconstitutional action:
(1) Placing the Ten Commandments on the walls of courthouses is unconstitutional (no secular purpose)
(2) Delegation of authority to religious organizations is unconstitutional
Establishment Clause and Tax Deductions
i) General rule: A property tax exemption for religious institutions is valid if treated the same as other non-profits
ii) A tax exemption from sales and use taxes available only for the sale of religious magazines and books is an invalid endorsement of religion
Establishment Clause and Government Aid to Religious Schools
i) States can provide money to both public and private schools for:
(1) Secular textbooks;
(2) Standardized secular exams;
(3) School lunches;
(4) Library media materials and computers; and
(5) Interpreters for deaf students
ii) States cannot give money to:
(1) Be used directly for religious instruction; or
(2) Religious secondary schools for salaries of teachers of secular subjects (risk of “excessive government entanglement”)
(a) May give such money to schools at the university level
iii) Forms of valid government aid:
(1) Providing bus fare for both public and private (including some religious) schools
(2) Giving a tax deduction to all parents based on actual expenditures for children attending
any public, private, or religious school
(3) A voucher program that allows parents to send their children to parochial or religious schools with state aid
Establishment Clause and Providing Public Services through Religious Institutions
If the government has a sex education program where it gives funding to both secular and religious organizations to carry out the program, it is constitutional
What is the Free Exercise Clause?
A person’s religious beliefs are absolutely protected
i) Government may not determine the truth or falsity of a person’s religious beliefs
(1) But government may determine a person’s sincerity in his claim of religious belief
What are the applications and exceptions of the Free Exercise Clause?
Rule (important): Where an individual’s conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity if the regulation is “neutral in respect to religion and is of general applicability”
i) Applications of the rule:
(1) Criminalizing possession of peyote with no exception for American Indians who use peyote for religious rituals
(2) Outlawing polygamy
(3) Jewish Air Force doctor violating uniform dress requirements by wearing a yarmulke while on duty
(4) Applying Social Security tax to an Amish employer whose religious beliefs prohibited him from making payments and receiving benefits
ii) Exceptions (cases that haven’t been overruled):
(1) States can’t deny unemployment benefits to a person whose religious faith observes Saturday as the Sabbath
(2) States can’t require Amish children to attend high school
What is Freedom of Expression?
General principle: The government may not interfere with or distort the marketplace of ideas, especially with respect to political speech
When does Strict Scrutiny apply for speech regulation?
Rule: Strict scrutiny applies when the government engages in content-based discrimination
What are the exceptions to Strict Scrutiny regulation of speech?
(1) Exceptions:
(a) Unprotected or low-value speech
(b) Government as speaker
(c) Content-neutral conduct regulation
(d) Content-neutral time, place, and manner regulation
What is the standard of review for Unprotected Speech?
Rule: A regulation that relates to unprotected speech is subject to rational basis review
What are the categories that Unprotected Speech includes?
(1) Speech that advocates violence or unlawful action;
(2) Fighting words;
(3) Hostile audience speech;
(4) Obscene speech; and
(5) Defamatory speech
Unprotected Speech: Speech that advocates violence or unlawful action
Rule: Advocacy that is (1) directed to inciting or producing IMMINENT lawless action and (2) is likely to incite or produce such action
Unprotected Speech: Fighting Words
Words likely to incite an ordinary citizen to commit immediate physical retaliation
(i) The speech must be more than annoying or offensive; must be a direct, personal insult
- fighting words statutes are subject to facial invalidity if the conduct proscribed is vague or over-broad
- fighting words statutes designed to punish certain viewpoints are unconstitutional
