[bar]conlaw

8/12/2019 [Bar]Conlaw

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CONSTITUTIONAL LAW

Bar Review Outline (From Lecture)

I.

FEDERAL JUDICIAL POWER

A. REQUIREMENT OF CASES AND CONTROVERSIESJUSTICIABILITY REQUIREMENTS

1. Standing shows he is the proper party to bring suita. Injuryactual or imminent

i. injury must be personally sufferedii. if seeking injunctive relief:

must show likelihood of future harm

b. Causation & redressabilityi. plaintiff must prove that caused harm

& a favorable decision is likely to remedy the injury

c. No third party standingExceptions:

i. close relationship between and 3P doctor/patient; parent/child (but: Pledge case)

ii. injured 3P unlikely to be able to assert own rightsiii. Associational standingif:

(1)memberswould have standing to sue

(2) interests are germaneto the organizationspurpose

(3) neither claim nor relief reqs participationofindividual members

d. No generalized grievances. Plaintiff cant sue solely as a citizenor taxpayer

i. Exception. Taxpayers have standing to challengegovernment expenditurespursuant to federal statutes asviolating theEstablishment Clause only

2. Ripenessmay a federal court grant pre-enforcement review of a statuteor regulation? need to ensure there is a case or controversy

a. Factors:i. hardshipwill suffer without pre-enforcement review

risk of prosecution vs. cost of conformityii. concreteness


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fitness of issues in the record for judicial review3. Mootnessneed ongoing injury at all stages of review

Exceptions:a. capable of repetition but evading reviewb.

voluntary cessation, but

may resume at any timec. class action suitsnot moot as long as one member of the class

has an ongoing injury

4. Political questionsnonjusticiablea. The republicanform of government clauseb. Challenges to presidents conduct of foreignpolicyc. Challenges to impeachment/removal processd. Challenges to partisan gerrymandering

i. FRIG: [f]oreign policy, [r]epublican form, [i]mpeachment,[g]errymandering

B. SUPREME COURT REVIEW1. Writ of certiorari for most cases

a. All cases from state courts of last resortb. All cases from federal courts of appeal

2. Appeals for decisions of three-judge federal district courtsa. mandatory review with no stop at the appellate level

3. SCt has original and exclusive jurisdiction over suits between stategovernments

4. SCt review generally requires final judgmenta. of highest state court, federal courts of appeals, 3-judge panelsb. generally no interlocutory review

5. Adequate and independent state grounds no reviewa. no review if federal-law reversal wouldnt change result

C. LOWER FEDERAL-COURT REVIEW1. Federal courts and state courts cannot hear suits against state govts

a. Sovereign immunityi. 11th Amdt bars suits against states in federal courtii. sovereign immunity bars suits against states in state

courts/federal agenciesb. Exceptions

i. waivermust be explicit


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ii. pursuant to 5 of the 14th Amdtiii. federal govt may sue state govtsiv.bankruptcy

c. Suits againststate officers okayi. for injunctive reliefii.

for money damages out of officers own pocketiii. no suit if state treasury would pay retroactive damages

2. Abstentiona. Federal courts may not enjoin pending state-court proceedings

II. THE FEDERAL LEGISLATIVE POWERA. CONGRESSS AUTHORITY TO ACT

1.

Must be express or implied congressional powera. No general police poweri. Exceptions: MILD: [M]ilitary, [I]ndian reservations,

federal [L]ands and territories, [D].C.

2. Necessary and proper clausea. Congress may use any means not prohibited by the Constitution to

exercise its authorityb. Necessary and proper clause isnt really a separate power; just a

means by which Congress can use other enumerated powers

3. Taxing/spending and commerce powera. Congress may tax and spend for thegeneral welfare1

i. cant otherwise act for general welfare; must betaxing/police power

b. Commerce powerCongress may regulate:

i. channelsof interstate commerce places where commerce occurshighways,

waterways, Internet, etc.ii. instrumentalitiesof interstate commerce, and persons and

things trucks, planes, Internet radiowaves, electricity, cattle, people any transmission

iii. activitiesthat have asubstantial effecton interstatecommerce

1MBE: if answer mentions general welfare, can only be the right answer if the question asks about taxing andspending, or one of the few instances where Congress does have a police power


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aggregate effectWickard v. Filburn for noneconomic activity, substantial effect cannot

be based on cumulative impact (e.g., sexual-assaultlaws)

4.

10th Amendmentall powers not granted to the US, nor prohibited tothe states, are reserves to the states or the peoplea. Congress cannot compel state regulatory or legislative action

i. but can attach strings to grants conditions must be expressly stated and related to

the purpose of the grantb. Congress may prohibit harmful commercial activity by state

governments

5. Section 5 of the 14th AmendmentCongress may not create new rightsor expand the scope of rights

a.

may only prevent or remedy constitutional violations throughproportionate and congruent laws

B. DELEGATION OF POWERS1. No limits on Congresss ability to delegate legislative powers

a. Intelligible standardb. No laws invalidated since 1937 as violating nondelegation

2. Legislative and line-item vetos are unconstitutionala. Need bicameralism & presentment

i. necessary for overturning executive action3. Congress may not delegate executive powers to itself or its officers

III. FEDERAL EXECUTIVE POWERA. FOREIGN POLICY

1. Treatiesagreements between US & foreign country, negotiated by thePresident and ratified by the Senate

a. Treaties prevail over conflicting state lawsb. Conflict between treaty and federal statute: last in time controlsc. Treaties invalid if conflict with the Constitution

2. Executive agreements


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a. Definition: agreements between the US & foreign country,effective when signed by the president and the head of a foreignnation

b. Executive agreements may be used for any purposei. never been invalidated as violating treaty power

c.

Executive agreements prevail over conflictingstatebut notfederallaw

3. President has broad powers as Commander-in-Chief to use Americantroops in foreign countries

B. DOMESTIC AFFAIRS1. Appointment and removal power

a. Appointment poweri. President appoints ambassadors, federal judges, officersii.

Congress may vest appointment of inferior officers in thePresident, heads of departments, lower federal courts

inferior officers = can be fired by officersb. Removal powerunless limited by statute, President may fire any

executive-branch officeri. Congress may limit removal if:

office is one where independence from thePresident is desirable and

statute cannot prohibit removal; only require goodcause

2. Impeachmenta. President, Vice President, federal judges, officers impeachable for:

i. treason, bribery, high crimes & misdemeanorsb. Impeachment does not remove a person from office

i. Impeachment requires majority in Houseii. Conviction requires 2/3vote in Senate

3. President has absolute immunity to civil suits for money damages foractions while in officebut not for actions that occurred prior to takingoffice

4. Executive privilege for presidential papers and conversations,but suchprivilege must yield to other important government interests

5. President may pardon those accused or convicted offederal crimesa. except in cases of impeachment


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IV. FEDERALISMA. PREEMPTIONSupremacy clauseConstitution and laws and treaties

pursuant = supreme law of the land

1.

Express preemption

2. Implied preemptiona. federal/state law mutually exclusive state law preemptedb. st law impedes achievement of fed objective st law preemptedc. Congress shows clear intent to preempt state law

3. States may not tax or regulate federal-government activitya. Paying state taxes out of federal treasury = unconstitutionalb. Federal government need not comply with state envtl regs

B.

DORMANT COMMERCE CLAUSE AND PRIVILEGES ANDIMMUNITIES CLAUSE OF ARTICLE IV

1. Definitionsa. Dormant Commerce Clause2

i. law is unconstitutional if it places an undue burdenoninterstate commerce

ii. implied power from Commerce Clauseb. Privileges andImmunities Clause of Article IV

i. No state may deny citizens of other states the privileges andimmunities it affords its own citizens

ii. antidiscriminatoryc. Privileges andImmunities Clause of the 14th Amdt3

i. narrow constructionSlaughterhouse Casesii. right to travelfundamental right

2. Always ask: Does the state/local law discriminate against out-of-staters?

3. If no discrimination:a. Priv & Imm Clause of Art IV applyb. If burdens > benefits, violates D.C.C.

4. If it does discriminate against out-of-staters:a. Violates D.C.C. unless necessaryto achieve an important

government purpose

i. protectionist purpose important purpose2MBE may refer to negative implications of the Commerce Clause, which is the same thing as the D.C.C.3Always a wrong answer on the MBE unless the question involves the right to travel


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Maine v. Taylorlaw against importation ofbaitfish OK

ii. Exceptions Congressional approval Market-participant exception

govt may prefer its own citizens in receivingbenefits from govt programs or in dealing with

govt-owned businessesb. If discriminates re: ability to earn livelihood, violates Priv & Imm

Clause of Art IV unless the law is necessary to achieve animportant government purpose

i. must discriminate against out-of-statersii. discrim must be re: civil liberties and important economic

activities (namely: ability to earn a living) cf. recreational activitiesdiscrimination OK

iii. corporations and alienscannot invoke this provisioniv.

discrimination must be necessary to achieve an importantgovernment purpose

C. STATE TAXATION OF INTERSTATE COMMERCE1. States may not use their tax systems to help in-state businesses2. States may only tax activities that have asubstantial nexusto the taxing

state3. State taxation of interstate companies only if taxation isfairly apportioned

D. FULL FAITH AND CREDIT TO JUDGMENT OF COURTS IN OTHERSTATES

1. Court rendering judgment must have PJ & SMJ2. Judgment on the merits3. Judgment final

V. THE STRUCTURE OF THE CONSTITUTIONS PROTECTION OFINDIVIDUAL LIBERTIES

A. IS THERE GOVERNMENT ACTION?1. Constitution only applies to government action2. Congress may by statute apply constitutional norms to private

conducta. 13th Amdt can be used to prohibit private race discrimination


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i. Only slavery violates the 13th amdt, but discrimination canviolate a federal statute adopted by Congress under the

13th Amdtb. C.C. can be used to apply constitutional norms to private conductc. Congress cannot use 5 of the 14th Amdt to regulate private

behaviori. only to regulate state & local governments3. Exceptions

a. Public functionsi. private entity performing a task traditionally and

exclusively performed by the federal government very narrow exception . . . running utility public

function

b. Entanglementi. If govt affirmatively authorizes, encourages, or facilitates

unconstitutional activity govt must stop, or activity must comply

ii. Courts may not enforce racially restrictive covenantsiii. State action when govt leases premises to a restaurant that

racially discriminatesiv. State action when govt provides free textbooks to schools

that racially discriminatev. NO state action when a private school, > 99% funded by

govt, fires a teacher because of her speech govt subsidy state action

vi.NO state action when NCAA orders suspension of abasketball coach at a state university

vii.State action when private entity regulates interscholasticsports within a state

viii. NO state action when a private club with a liquorlicense racially discriminates

B. APPLICATION OF THE BILL OF RIGHTS1. Applies directly only to thefederalgovernment2. Applies to states and local governments through Due Process Clause

of the 14th AmendmentExceptions (not incorporateddont apply to states)

a. 2nd Amdt right to bear armsb. 3rd Amdt right not to have a soldier quartered in a persons homec. 5th Amdt right to grand jury indictment in criminal casesd. 7th Amdt right to a jury trial in civil cases


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e. 8th Amdt right against excessive finesC. LEVELS OF SCRUTINY4

1. Rational basisa.

Law will be upheld if rationally related to a legitimategovernment purpose

i. any conceivable purpose, not necessarily actual purposeb. Challengerhas BoP

i. very deferential; govt almost always wins

2. Intermediate scrutinya. Upheld if substantially related to an important government

purpose

i. actual government purposeii.

narrowly tailored

but need not be the best wayiii. must be a successful means of achieving the objective

b. Government has BoP3. Strict scrutiny

a. Upheld if necessary to achieve a compelling governmentpurpose

i. vital, crucial, actualgovernment purposeii. least restrictive alternative

necessary = no less restrictive alternative wouldmeet the goal

more than narrowly tailoredb. Government has burden of proof

i. usually loses

VI. INDIVIDUAL RIGHTSA. DEFINITIONS

1. Procedural due processa. Procedures that govt must follow when govt takes away life,

liberty, or property (esp. notice & hearing)b. plaintiff will be seeking a procedural remedy

2. Substantive due process4Must precisely define in essays


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a. Is there an adequate justification for taking away a persons life,liberty, or property?

b. govt must show reason3. Equal protection

a.

treatment of people relative to each otherb. similarly situated should mean similar treatmentB. PROCEDURAL DUE PROCESS

1. Has there been a deprivation of life, liberty, or property?a. Definitions

i. Deprivation of liberty occurs if there is a loss of asignificant freedom provided by the Constitution or astatute

Examples

Except in an emergency, before an adult can beinstitutionalized, need notice and hearing first When parent institutionalizes a child, only need a

screening by a neutral factfinder Harm to reputation by itself loss of liberty Prisoners rarely have liberty interests

ii. Deprivation of property occurs if there is an entitlementand that entitlement is not fulfilled

No distinction between rights and privileges forD.P.

Entitlement = reasonable expectation of continuedreceipt of benefits

b. Govt negligence sufficient for deprivation of D.P.; generallymust be intent or recklessness.

i. But in emergency situations, govt liable under D.P. only ifits conduct shocks the conscience

c. Generally, govt failure to protect from privately inflicted harms denial of D.P.

i. Only if govt creates danger, or has custody, does govthave a duty to protect

2. What procedure is required?a. Balancing test

i. importance of interest to the individualii. ability of additional procedures to increase accuracy of

factfinding/decrease risk of erroneous deprivationiii. govt interest (usually saving $)

b. Examplesi. Welfare benefitsnotice & hearing before termination


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ii. SS disabilitypost-termination hearingiii. Student disciplined by public schoolneed notice of

charges and opportunity to explainiv. Custody terminationneed notice & hearingv. Punitive damagesrequires instructions to jury and

judicial reviewvi. American citizen detained as enemy combatant must beaccorded D.P.

vii.Except in exigent circumstances, pre-judgment attachmentor govt seizure of assets must be preceded by notice &hearing

exigent circumstances = reason to believe personwould get rid of property if they had notice

govt may seize property used in illegal activityeven if owner is innocent holder

C.

ECONOMIC LIBERTIES

1. Rational-basis reviewminimal constitutional protection2. Takings clause5th Amdtgovt may take private property for public

use if govt provides just compensationa. Is there a taking?

i. possessory takinggovt confiscation or occupationamount of taking unimportant

ii. regulatory takingif leaves no reasoanble economicallyviable use of property

decrease in value takingiii. miscellania

govt conditions on development must be justifiedby a benefit that is roughly proportionate to theburden imposed (otherwise is a taking)

property owner may bring a takings challenge toregulations that existed before the property wasacquired

temporary denial of use of property taking as longas govt action is reasonable

b. Is the taking for public use?i. Public use = govt must act with a reasonable belief that the

taking will benefit the publicc. Is just compensation paid?

i. Measured in terms of loss to the ownerii. reasonable market value

3. Contracts clauseno state shall impair the obligations of contracts


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a. Applies only tostate or local interference with existing Ksi. no application to the federal govt

b. State & local govts must meet intermediate scrutiny to interferewith private Ks

i. Does the legislationsubstantially impair a partys rightunder an existing K?ii. If so, is the law a reasonably and narrowly tailored meansof promoting an important and legitimatepublic interest?

c. State & local interference with govt Ks must meet S.S.d. Ex post facto clause applies only in criminal cases

i. law that criminally punishes conduct lawful when done, orincreases criminal punishment after act committed

ii. retroactive civil liability only need meet r.b. testiii.bill of attainder = law directing punishment of an individual

without trial

D.

RIGHT TO PRIVACYFundamental rt protected under substantive D.P. S.S.

1. Right to marry2. Right to procreate3. Right to custody of ones children

a. govt may create an irrebuttable presumption that a marriedwomans husband is the father of her child

4. Right to keep the family togethera. family: must be related

5. Right to control the upbringing on ones children6. Right to purchase and use contraceptives7. Right to abortion (no longer S.S.)

a. Prior to viability: states may not prohibit but may regulate aslong as no undue burden

i. 24-hour waiting period undueii. Reqmt that abortion be performed by licensed physician

undueiii. Prohibition on partial birth abortion undueiv. After viability, states may prohibit unless necessary to

protect womans life or healthb. Govt has no duty to subsidize abortions or provide facilities for

themc. Spousal consent & notification laws unconstitutionald. Parental notice/consent laws OK for unmarried minors abortion if

alternative procedure provided whereby minor may appear before ajudge who can approve the abortion by finding it would be in theminors best interests or that she is mature enough to decide forherself


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8. Right to privacy protects right to engage in private homosexualactivity

a. Level of scrutiny unspecified9. Right to refuse medical care

a. Competent adults have a right to refuse medical care, even if life-savingi. no level of scrutiny specified

b. State may require clear & convincing evidence that a personwanted treatment terminated before it is ended

c. State may prevent family members from terminating treatment foranother

10. No constitutional right to physician-assisted suicideE. 2ND AMDT RIGHT TO BEAR ARMS

1. Level of scrutiny unspecified2.

Govt may regulate who has weapons & locations where allowed3. For purposes of self-defense

F. THE RIGHT TO TRAVELE.P. and Priv & Imm 14th Amdt1. Laws that prevent people from moving into a state must meet S.S.2. Durational residence requirements must meet S.S.

a. worry of chilling interstate travelb. for voting, 50 days = maximum residency requirement

3. Restrictions on intl travel = R.B.G. THE RIGHT TO VOTE15th Amdt; E.P. fundamental right

1. Laws that keep some voters from voting must meet S.S.a. poll taxes; property ownership requirements

2. Regulations on electoral process to prevent voter fraud need only beon balance, desirable

3. One person, one vote must be met for all state/local electionsa. Voting districts within an area must be about the same in

population4. At-large elections constitutional unless proof of a discriminatory

purpose

a. more than just discriminatory impact5. Use of race in drawing election districts must meet S.S.6. Counting uncounted votes without standards in a presidential election

violates E.P.


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c. " " designed to remedy past discrimination/differences inopportunity willbe allowed

E. ALIENAGE CLASSIFICATIONS1.

Generally S.S. when government discriminates against noncitizens2. R.B. for alienage classifications re: important government functions(self-government and the democratic process)

a. Voting, serving on jury, being a police officer, public-schoolteacher, probation officer (jvpopot?)

3. R.B. for congressional discrimination against aliens4. Intermediate scrutiny for discrimation against undocumented alien

children

F. DISCRIMINATION AGAINST NONMARITAL CHILDREN(ILLEGITIMACY)

1. Intermediate scrutiny2. Laws denying benefits to all nonmarital kids, but granted to all

marital kids = unconstitutionala. More difficult if benefit given tosome nonmarital kids

G. OTHER DISCRIMINATION R.B.1. Wealth discrim2. Age discrimination3. Disability discrim4. Economic regulations5. Sexual orientation discrim

VIII. THE FIRST AMENDMENTA. FREE SPEECH METHODOLOGY

1. Content-based vs. content-neutrala. Content-based generally S.S.

i. Subject-matter restrictions (regulated topics)ii. Viewpoint restrictions (regulated ideologies)

b. Content-neutral generally intermediate scrutiny2. Prior restraintsjudicial order or administrative system stops speech

before it occursa. Court order preventing speech must meet S.S.


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i. Procedurally proper court orders must be complied withuntil vacated or overturned

Person who violates court order is barred from laterchallenging

ii. gag orders on press preventing pretrial publicity =unconstitutionalb. Govt can require a license for speech only if there is an important

reason for licensing and there are clear criteria leaving almost nodiscretion to the licensing authority.

i. Licensing schemes must contain procedural safeguardssuch as prompt determination of requests for licenses &judicial review

3. Vagueness and overbreadtha. Unconstitutionally vague if a reasonable person cannot tell what

speech is prohibited and what speech is permitted

i.

e.g., a law prohibiting sale of books that tend to corruptmoralsb. Unconstitutionally overbroadif regulates substantially more

speech that is constitutionally allowablei. e.g., a law prohibiting all live entertainment

c. Fighting words laws are always unconstitutionally vague andoverbroad

i. Fighting words protected under the Constitution, but SCtalways finds such laws unconstitutionally vague andoverbroad

4. Symbolic speecha. Govt can regulate conduct that communicates if it has an

important interest unrelated to suppression of the messageand ifthe impact on communication is no greater than necessary toachieve govts purpose

i. flag-burning is constitutionally protectedii. draft-card burning not constitutionally protectediii. nude dancing not protectediv. cross-burning protected

unlessproof of intent to threaten or intimidatev. election campaigns

contribution limits = constitutionalexpenditure limits = unconstitutional

vi.ballot initiatives contribution & expenditure limits = both

unconstitutional


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5. Anonymous speech is constitutionally protectedB. UNPROTECTED/LESS PROTECTED SPEECH

1. Incitement of illegal activitya.

Punishable ifsubstantial likelihood of imminent illegal activity andspeech is directedto causing imminent illegality

2. Obscenity and sexually oriented speecha. The test

i. material must appeal to theprurient interest shameful or morbid interest in sex

ii. material must bepatently offensive under the lawprohibiting speech

local standardiii. taken as a whole, the work must lack serious redeeming

Artistic, Literary, Political, or Scientific value national standard

b. Govt may use zoning ordinances to regulate the location of adultbookstores and movie theaters

i. erogenous zoning is permissiblec. Child pornography may be completely banned, even if not obscene

i. material must use children in the productiond. Govt may not punish private possession of obscene materials, but

may punish private possession of child porne. Govt may seize assets of businesses convicted of violating

obscenity lawsf. Profane and indecent speech is generally protected by the 1st Amdt

i. exception: over the (free) broadcast media cable, etc. treated differently b/c voluntary invasion

of homeii. exception: in schools

3. Commercial speecha. Central Hudson test

i. Regs on speech that is truthful & not misleading upheld if: (1)reg serves substantial govt interest (2)reg directly advances the govt interest (3)law is narrowly tailored to serve the interest

b. Ads for illegal activity, and false or deceptive ads, not protected bythe 1st Amdt

c. True commercial speech that inherently risks deception can beprohibited

i. Govt may prevent professionals from advertising orpracticing under a trade name


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ii. Govt may prohibit atty in-person solicitation of clients forprofit

letters OK; in-person OK if offering free servicesiii. State may not prohibit accountants from in-person

solicitation of clients for profit

d.

Govt regulation of commercial speech must be narrowly tailored,but need not be the least restrictive alternative

4. Defamationa. If is a public official/running for public office, may recover

with clear and convincing evidence of falsity and actual malicei. actual malice = known falsity or reckless disregard for truth

b. Same for public figurei. public figure = achieved widespread fame or notoriety, or

voluntary cast oneself into a central role in a particularpbulic matter

c.

Private figure, public concern: falsity & negligence re: truthi. presumed/punitive damages require proof of actual maliced. Private figure, private concern

i. presumed/punitive damages without actual malice5. Privacy

a. Govt may not create liability for truthful reporting of informationlawfully obtained from the govt

b. No liability if media broadcasts a tape of an illegally interceptedcall, if media didnt participate in the illegality and the matter is ofpublic importance

c. Govt may limit its dissemination of information to protect privacyi. 1st Amdt right of public to attend criminal trials

6. 1st Amdt doesnt protect speech by govt employees on the job in theperformance of their duties

7. Other govt restrictions based on content must meet S.S.C. WHAT PLACES ARE AVAILABLE FOR SPEECH?

1. Public foragovt properties that govt is constitutionally required tomake available for speech (classic examples: sidewalks and parks)

a. Regulations must be subject-matter and viewpoint neutral, elseS.S.

b. If subject-matter and viewpoint neutral:i. Regulations must be reasonable time/place/manner

restrictionsii. Serve important government interest


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iii. Leave open adequate alternative places for communicationc. Govt reg of public fora need not use least restrictive alternative

i. just narrowly tailoredd. City officials cannot have discretion to set permit fees for public

demonstrations

i.

othewise risk of content-based discrimination

2. Limited public fora (designated fora)govt properties that govt couldclose to speech, but voluntarily leaves open

a. Same rules as for public forab. School facilitiesnonpublic fora evenings & weekends

i. unless school opened to public at this time3. Nonpublic foragovt properties that govt constitutionally can and does

close to speech; govt can regulate as long as regulation is reasonable andviewpoint-neutral

a.

Military bases = nonpublic forab. Areas outside prisons and jailsc. Advertising space on city busesd. Sidewalks on post-office property (often tested on MBE)e. airports

i. can prohibit solicitations for moneyii. cannot prohibit leafletting

4. No 1st Amdt right to use private property for speech purposesa. Including shopping centers

i. but CA constitution does allowD. FREEDOM OF ASSOCIATION

1. Laws that prohibit/punish membership in a group S.S.a. To punish, must show:

i. active affiliationwith a groupii. knowledgeof illegal activitiesiii. specific intentof furthering those illegal activities

b. Govt may require disclosure of membership, where suchdisclosure would chill association, only if S.S. met

c. Laws that prohibit a group from discriminating are constitutionalunless they interfere with intimate association or expressiveactivities

E. FREEDOM OF RELIGION1. Free exercise clause

a. Cannot be used to challenge a neutral law of general applicability


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i. not neutral/not generally applicable S.S.b. Govt may not deny benefits to those who quit their jobs for

religious reasons

2. Establishment clausea.

The testi. Must be a secular purpose for the law

primiary purpose cant be religious advancementii. Effect of the law must be neither to advance or inhibit

religioniii.No excessive government entanglement with religioniv. SEX: [s]ecular purpose, [e]ffect of law, no e[x]cessive

entanglementb. Govt cannot discriminate against religious speech or among

religions unless S.S. metc. Govt-sponsored religious activity in public schools =

unconstitutional (not even silent prayer)i. but religious student and community groups must havesame access to school facilities as nonreligious groups

d. Govt may give aid to parochial schools, so long as it is notactually used for religious instruction

i. Govt may provide parents with vouchers for use inparochial schools

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