Freedom of Assocation & Religion

Question 1

Freedom of Association

Answer 1

Laws that prohibit or punish group membership must meet STRICT SCRUTINY

Question 2

Official Duty Exception for Public Employees

Answer 2

Government employer may punish a public employee’s speech whenever the speech is made ON THE JOB and PURSUANT TO OFFICIAL DUTIES, even if the speech touches on a matter of public concern

Question 3

Public Employee Speech not made pursuant to official duties

Answer 3

If NOT PUBLIC CONCERN, courts give gvt employer deference and allow employer to punish employee for speech disruptive of the workplace

If PUBLIC CONCERN, courts balance employee’s rights as a citizen to comment on matters of public concern against gvt’s interest as an employer in efficient performance of public service

Question 4

Participation in Political campaigns

Answer 4

may prohibit federal executive branch employees from taking an active part in political campaigns

Question 5

Receiving honoria

Answer 5

if RANK AND FILE employees, banning gvt employees from accepting an honoraium is unconstitutional

Question 6

patronage

Answer 6

public employee may not be hired, fired, promoted, or transferred based on party affiliation or political views except when party affiliation and views are relevant

Question 7

Loyalty Oaths

Answer 7

Gvt may require employees to take loyalty oaths, so long as they are not overbroad or vague

Ex: cannot prohibit membership in Communist Party or require abstention from advocating the overthrow of government (too abstract, overbreadth)
Ex: Oath requiring support of Constitution and to oppose UNLAWFUL overthrow of gvt is valid
Ex: oath requiring support of the flag is INVALID

Question 8

Disclosure of Association

Answer 8

laws that require disclosure of group membership, which such disclosure would chill association, must meet SS

Question 9

Groups that discriminate

Answer 9

Laws that prohibit a group from discriminating are constitutional unless they interfere with INTIMATE ASSOCIATION or EXPRESSIVE ACTIVITY

Dale v. Boyscouts

Question 10

Free Exercise Clause

Answer 10

Prohibits gvt from punishing someone on the bases of her religious beliefs, but generally does NOT prohibit regulation of conduct

Ex: prohibits religious oaths of employees
Ex: prohibits excluding clerics from holding public office
Ex: prohibits courts from declaring a religious belief as false

Court has NEVER held an asserted religious belief to be not religious. BUT, FEC cannot be used to challenge a neutral law of general applicability (peyote)

Question 11

Religious Exemptions

Answer 11

FEC does NOT require religious exemptions from generally applicable regulations that happen to burden religious conduct

Exception: religious orgs are granted exemption from employment discrimination suits when choosing who will be its ministers
Exception: Amish have eemption from law requiring compulsory school attendance until 16

Question 12

Establishment Clause

Answer 12

Gvt required to pursue a neutral attitude towards religion. Statute invalid unless the action:

(1) has a SECULAR PURPOSE
(2) has a PRIMARY EFFECT that neither advances nor inhibits religion; and
(3) no EXCESSIVE ENTANGLEMENT with religion

Question 13

Sect preference

Answer 13

gvt action that prefers one religious sect over another violates Establishment Clause unless SS is met. Won’t even get to Lemon test.

Question 14

“Religious”

Answer 14

Unclear what constitutes a religion or a religious belief, but clear FEC does NOT protect only the traditional, established, and organized religions.

Test: religious if it OCCUPIES A PLACE IN THE BELIEVER’S LIFE PARALLEL TO TAHT OCCUPIED BY ORTHODOX RELIGIOUS BELIEFS