Constitutional Law Course Outline

BRANCHES OF GOVT I. JUDICIAL BRANCH (Only S.Ct. required by Const.) A. Art. III power over cases interpreting Constn, fed laws, treaties, admiralty & maritime, disputes bet. states, states & foreign citizens, & citzns of diverse citznship B. Jurisdiction 1. Orig. Juris over cases affecting ambassadors, public ministers, consuls & when state is party (Congress concurrent juris. low fed except state as party) 2. Appellate Juris by writ of cert over cases from fed cts of appeal & state cts over constitutionality fed stat, fed treaty or state statute or state statute violating fed law; appeal of right fed injunction 3- judge panel cases C. Constitutional & Self-Imposed Limits on Exercise of Fed Juris 1. Advisory Opinions Actual case/controversy; not opinion to another branch efftv if executive officer agrees with it 2. Ripeness Actual harm or immediate threat of harm; dispose w/o dealing w/ merits; statute never enforced & no threat of enforcing 3. Mootness Matter resolved, unless capable of repetition yet evading review b/c internal time limit (pregnancy; class action reptv P case resolved) 4. Standing (injury, past or future) Belong to organztn to stop not enough; no concerned person, citizen or taxpayer standing a. Taypayer standing only for establishment of religion challenge to spending program b. Organization if members have INJURY IN FACT related to organztn purpose & indiv. partic. in suit not required c. 1 w/ standing can assert 3P rts if 3P difficulty asserting themselves (membership list disclosure) or special relationship (dr asserting pt abortn restn rts) 5. Adequate/Indep State Grounds (state ct Judgments) Won't hear unless J turned on fed ground (vs state constn). If grounds unclear - says violates both - ct will hear 6. Abstention Fed ct temp. abstain from resolving const'l claim if disposition rests on unsettled Q state law 7. Political Qs (nonjusticiable) a. Republication Form of Govt Clause (wrong ans.) b. Pres. true foreign affairs & military command decisions c. Seating of Delegates Nat'l Political Convention 8. 11th Am Limits on Fed Cts No one other than U.S. or another state can sue a state for damages in fed ct, unless state consents or Congress explicitly says so -> NO IMMUNITY FOR LOCAL GOVTS (state agency school bd) -> Only damage actions barred; get injunction by suing state officer -> 11th n/a state cts (state own immunity except 2 states) II. LEGISLATIVE POWER (Nec/Proper or Gen'l Welfare OUT) A. Enumerated & Implied Powers (those enumerated & any necessary & proper to carry out) 1. Taxing Power Upheld if some reas. relationship to revenue production or if Congress has power to regulate the activity taxed (can't tax exports) 2. Spending Power Can spend for common defense & gen'l welfare; any public purpose OK 3. Commerce Power Exclusive power to regulate all foreign & interstate commerce; includes goods/vehicles bet. states & even intrastate activity that affects commerce in other states 4. War & Related Powers Power to declare war, raise & support armies, provide for & maintain a navy; economic regulation during & post-War OK 5. Investigatory Power (implied power) 6. Property Power Dispose of & make rules for U.S. territories & properties ("Takings" only for another enumerated power only) 7. No Federal Police Power unless re: capital or U.S. territories/lands 8. Bankruptcy Power (nonexclusive power to set uniform rules; state non-conflicting law is OK) 9. Postal Power (exclusive; reas. restrictions but can't deny mail privilege) 10. Power Over Citizenship Can't exclude aliens from adm; deportation notice/hearing for lawful resident aliens. Exclusive power over naturalization; can't remove citizenship; must clearly delegate power for fed agency to deny fed benefits to resident aliens 11. Admiralty Power (plenary & exclusive unless leaves to states) 12. Power Coin Money/Fix Weights & Measures 13. Patent/Copyright Power (can control issuance of patents & copyrights) B. Delegation of Legislative Power OK to delegate to executive/judicial if intelligible standards given & a power not confined to Congress C. Speech and Debate Clause Evidentiary immunity; fed legislators/aides can't be prosecuted/punished for official acts (intro legis., vote, floor debate, com. hearing). Can republish defamatory statement press release/newsletter D. No Congressional Veto of Executive Actions Can't overrule by resolution; must adopt Act (statute or law) NOT legis. veto III. EXECUTIVE POWER (must obey statutes; can't refuse to spend) A. Domestic Powers 1. Appointment & Removal a. Appointment Powers Pres. appts ambassadors, public ministers & consuls, justices & all other officers appt. not otherwise provided for, with Senate advice/consent -> Executive officer makes decisions; does something -> Inferior officers can be appt'd by Pres., cts, heads of dept (according to how Congress provides) ("Special Prosecutors" inferior officers) -> Congress cannot appt members of body w/ adm. or enforcement powers (can give investigatory powers) -> Congress can hire/fire its own staff but can't give executive power to anyone it can hire/fire b. Removal Powers Pres. can remove high level pure executive any reason & other executive apptmts by Congress limitns (i.e. good cause). Congress can remove executive officers only thru impeachment 2. Pardons (Congress hands off) Pres. for all fed offenses (not impeachment) 3. Veto Power Veto override 2/3 each house; 10 days & if doesn't law if in session, automatic veto if not 4. Pres. has NO legis. power w/o Congress authorizing 5. Power to Prosecute Congress can't require criminal prosecution (BILL OF ATTAINDER); done by Executive officer B. Power Over External Affairs 1. No power to declare war; can act militarily in actual hostilities against U.S. w/o declaratoin 2. Day-to-day foreign relations 3. Treaties (w/ 2/3 Senate consent). Treaties are Supreme law = to fed act; most recent if conflict. Treaties & executive agreements must comply w/ Constn 4. Executive Agreements (no consent) Pres. & head foreign country; fed law prevails C. Executive Privilege/Immunity 1. Privilege to keep nat'l security secrets confident'l but Pres. communications where need can be gotten by prosecution -> Look for ans. that talks about balancing branch interests 2. Pres./Aides absolute immunity civil damages for official actions D. Impeachment - MAJ House vote to bring charges; 2/3 Senate to convict & remove. All civil officers s/to it -> Impeachment (bringing of charges) grounds include treason, bribery, high crimes & misdemeanors THE FEDERAL SYSTEM I. RELATIVE SPHERES OF FEDERAL & STATE POWERS A. Exclusive Federal Powers Ltd to fed by Constn expressly (treaties) or impliedly (declaring war) B. Exclusive State Powers (anything not delegated to fed) -> When state regulates something it's b/c has authority to do so under its police powers to regulate health, safety, welfare unless violates Constn C. Concurrent Fed/State Power (Supremacy Clause) 1. State & fed laws conflict (inconsistent), fed wins (even adm. regs) (WATCH FOR FED JUST BEING MIN. STANDARD) 2. Fed wins over state law preventing achievement of fed objective (license w/held despite disch. J in bankruptcy) 3. Preempted if fed meant to occupy field even if nonconflicting (check comprehensiveness; is there an agency created to administer?) D. Interstate Compact Clause (2 states) Congress approval if € states' power at expense of fed. power E. Foreign Affairs exclusive to fed govt II. INTERSOVEREIGN LITIGATION U.S. can sue state w/o consent (S.Ct. nonexclus. J); state can't sue U.S. w/o consent; can't sue fed officer if $ from public treasury - can if ultra vires activity; state can sue another state in S.Ct. or citizen can sue another state in citizen's state III. INTERGOVERNMENTAL TAX & REGULATION IMMUNITIES 1. Congress can tax or regulate state/local govt activities if applies to public and private sector 2. Fed tax or regulation on purely state/local govt activity may be ltd by 10th Am. -> Except can restrict state activities violating civil liberties or indirectly regulate thru conditions imposed w/ spending power *usually 10th Am will invalidate tax/reg is wrong 3. State can impose nondiscriminatory, indirect taxes on fed govt if don't unreas. burden (state inc. tax on fed e/ees) IV. PRIVILEGES & IMMUNITIES CLAUSES (Art. IV & 14th Am NO!) Prohibits Discrimination by state against Nonresidents (NOT aliens, corptns) 1. Applies to fundamental rights (pursuit of livelihood & civil liberties) (can discriminate recreational activity; fishing license) -> state/city can't require live there to work there except certain govt jobs if good reason 2. Valid only if substantial justification & no less restrictive means 3. Relationship w/ Dormant Commerce Clause (affects interstate commerce) STATE REGULATION OR TAXATION OF COMMERCE I. REGULATION OF INTERSTATE COMMERCE A. Regulation of Commerce by Congress 1. Conflicting state laws superseded; non-conflicting may be preempted (see preemption) 2. Congress can permit state regs that would violate Commerce Clause (but can't OK violation of civil liberties) or prohibit those that would be upheld B. State Regulation Absent Congressional Action Can regulate local aspects if doesn't discriminate against or unduly burden interstate commerce (if does violates Dormant Commerce Clause which unlike P&I applies to aliens/corptns) 1. Discriminatory Regs/Laws Always invalid if discriminate against interstate commerce to protect local economic interests (e.g. forbids out of state bus. to compete) unless the reg. furthers an important non-economic state interest & no reasonable non-discriminatory alternatives. States can prefer own citizens when mkt participant; can restrict subsidies to own citizens (benefits, tuition) -> *discriminatory laws can also violate P&I or Equal Protection Clause 2. Nondiscriminatory Regs/Laws Valid unless burden on commerce outweighs promotin local interest (are lesser restrictions available?) -> *MBE: look for fed legis. superseding, preempting or authorizing the state reg. in the Q. If not, apply discriminatory vs. nondiscriminatory standards C. State Liquor Control (21st Am) Can intrastate regulate (control consumption sale, use w/in borders) unless only for local mfr economic preference. Interstate s/to Commerce Clause & fed can regulate thru spending power II. POWER OF STATES TO TAX INTERSTATE COMMERCE Congress complete power to forbid or authorize state tax affecting interstate commerce (look in Q for fed authority allowing) 1. Discriminatory Taxes not allowed unless Congress authorizes (may also violate P&I or Eq. Prot. Cl.) 2. Non-discriminatory taxes OK if activity has a substant'l nexus to the state, fair apportionment under rational formula & fairly related to serv./benefits state provides A. Use Taxes (goods bought OUTSIDE state to USE IN) Valid but seller doesn't have to collect it unless has sufft nexus w/ taxing state B. Sales Taxes 1. If sale occurs w/in state, tax by seller's state OK (even if goods removed from state). But if sale takes place to buyer outside state, Seller's state tax invalid 2. Buyer's state can tax if interstate seller has substant'l contacts w/ Buyer's state (not just mail order solicitation) C. Ad Valorem Property Taxes 1. NO Tax on Interstate Commerce Commodities. If goods in interstate commerce exempt from tax until reach destination (when they are intermixed) 2. Tax on Instrumentalities Used to Transport Goods Interstate. Depends on if had taxable situs in taxing state (rec'd benefits or protection from the state; not just passing thru) and if instrumentality value properly apportioned to amt of contacts w/ each taxing state D. Privilege, License, Franchise or Occupational Taxes 1. "Doing business tax" OK if substant'l nexus to taxing state, tax fairly apportioned, doesn't discriminate against interstate commerce and fairly relates to services provided by the state 2. Can't flat license tax mere solicitors of local orders for goods shipped interstate 3. License taxes on interstate carriers OK to compensate for raod use if don't discriminate 4. Interstate Passenger tax OK if based on fair approximation of use & doesn't discriminate E. Net Income Taxes Can't impose fairly apportioned, nondiscriminatory net income taxes on interstate firms conducting bus. in state (not sales people only) F. Value Added Tax - (at each stage of production or distribution); OK if meets D.1. INDIVIDUAL GUARANTEES AGAINST GOVT'L OR PRIVATE ACTION I. LIMITATIONS ON POWER & STATE ACTION REQUIREMENT A. Constitutional Restrictions on Power Over Individuals 1. Bill of Rights (applies to fed but most inc. thru 14th Am Due Process Cl.) 2. 13th Am - prohibits slavery (Congress can prohibit racial discrimination by govt or private citzien -> Anti-discrimination laws make conduct illegal, not unconstn'l (not unconstn'l but IS illegal for private co. to refuse to hire blacks) 3. 14th Am (Requires State Action) - states can't deprive of life, liberty, property w/o due process & eq. prot. of laws 4. 15th Am (Requires State Action) - prohibits fed & state govts from denying right to vote for race/color 5. Commerce Clause can prohibit private racial discrim. in activities connected w/ interstate commerce 6. Congress has inherent power to protect rts of Nat'l citizenship B. State Action Requirement Any govt action (local, state, city). Also private people doing exclusive publlic functions or have significant state involvement (when state affirmatively facilitates, encourages or authorizes discrimination acts by citizens; not just enforcing trespass laws) II. RETROACTIVE LEGISLATION A. Contract Clause. States can't enact laws retroactively impairing K rights (fed flagrant = 5th Am Due Process Cl) -> State legis. substantially impairing existing private K invalid unless important & legit govt interest & reas. and narrowly tailored means to promote interest -> State legis. impairing Ks w/ state as party scrutinized little more strictly B. Ex Post Facto Laws (laws that retroactively alter criminal offenses or punishments) -> State nor feds can do unless doesn't affect substantive elements C. Bills of Attainder Legis. acts inflicting punishment w/o judicial trial (state nor feds can do) III. PROCEDURAL DUE PROCESS A. Fair Process (notice/hearing) required for govt agency to take life, liberty or property; must be intent'l, not neglig. B. Life, Liberty or Property Taken? 1. Liberty: loss of significant freedom of action or denied freedom provided by Constn or statute (confinement, phy. punishment, right to engage in gainful employment) 2. Property: legitimate claim or ENTITLEMENT to benefit under state/fed law, not mere EXPECTATION (*do NOT pick right vs. mere privilege) C. How Much/Type Process Required? Depends on importance of interest to individual, how valuable the procedures are in protecting that interest and how costly and difficult procedures are -> Range from mere recognition of tort claim for potential abuse from loss of liberty for spanking w/ no hearing to detailed procedures for death penalty -> Welfare benefits, drivers license, adult mental commitment, termination parent custody rts require notice & evidentiary hearing b/4 termination; otherwise, simple notice & chance to respond (public educ. disciplinary or academic dismissal), but sometimes subsequent evidentiary hearing too (public employment, disability benefits) D. Due Process rights can be waived if voluntary & made knowingly E. Access to Courts - Indigent Ps Must forgive fee when charging denies fundamental rt (marriage license, divorce, candidates for electoral office filing fee) IV. TAKINGS CLAUSE (5th Am) (States via 14th) Private property no take for public use w/o just compensation A. Public Use if rationally related to legit public purpose (even private enterprise; public utility/RR) B. Taking vs. Regulation. Look at whether actual appropriation or physical invasion. If it's a use restriction, more drastic the ñ in value or less it promotes public welfare, more likely it's a taking. -> govt hospital next door NO; beach strip YES -> owe entire ñ in value if taking (part) FMV if full -> only need an economically viable use of property (if bus.) -> Govt can take just surface/mineral rts V. INTRO TO SUBSTANTIVE DUE PROCESS & EQUAL PROTECTION A. Relationship Between the 2 If law limits liberty of ALL to engage in activity (Substv Due Process); if treats CERTAIN CLASSES differently (Equal Protn) B. Standards of Review 1. Strict Scrutiny Fundamental rights (Privacy-CAMPER, Voting, Rt to Interstate Travel, Access to CTS, 1st Am Rts) -> F A V I P (all fundamental rights) -> C A M P E R (subset within Privacy; contraceptives, abortions, marriage, procreation, education, related people) OR Suspect Classifications (R A N - race, alienage, national origin). Necessary to achieve compelling govt purpose, done in least restrictive way (GOVT burden of proof) 2. Intermediate Scrutiny Substantially related to important govt purpose Quasi-suspect classifications (S I C -sex, illegitimacy, children of illegal aliens) (Burden on STATE) 3. Rational Basis Rationally related to legitimate governmental interest (Burden on P) (not arbitrary or irrational) W E H U B A M E T S (welfare benefits, education, housing (public), unrelated people living together, Bankruptcy, age, mentally retarded, employment (public), taxes, sexually related crimes) VI. SUBSTANTIVE DUE PROCESS (5th Fed; 14th State/Local) A. If a fundamental right, apply strict scrutiny; otherwise, rational basis (no quasi or suspect class comes in) B. Irrebuttable presumptions for benefits/rights may be unconstn'l VII. EQUAL PROTECTION (5th Due Process Fed; 14th State/Local) A. Strict scrutiny for fundamental rights or suspect class, intermediate for quasi-suspect, rational if not 1 of these groups B. Intent to Discriminate (required for strict or intermediate scrutiny) 1. Intend to discriminate IF: (a) discriminatory on its face, (b) discriminatory application of facially neutral law, (c) discriminatory motive behind the law (not just discriminatory effect) C. Suspect Classifications (R A N) (race alienage nat'l origin) (STRICT SCRUTINY) 1. Race & Nat'l Origin (ethnic identity) a. School Integration. Only intentional segregation unconst'l (de jure vs. housing patterns but racially neutral school systems & attendance zones de facto) -> Busing to correctproven discrim. ltd to discrim. zone; interdistrict only if both discriminated b. Affirmative Action (Benign discrimination) Can't favor race/ethnic minorities (same strict scrutiny) unless remedying identified persistent past discrimination (not "societal"). If no past discrim., plan must be narrowly tailored to compelling interest (race as adm. or hiring factor, not quota). Fed. Govt plans only s/to intermediate scrutiny 2. Alienage (generally can't require U.S. citizenship) a. Congress plenary power over aliens (immigration & naturalization power); fed. classifications valid if NOT arbitrary and unreas. b. State/Local Classifications suspect (requiring U.S. citizenship for welfare, jobs) -> except rational basis for alien participation in state govt (voting, jury serv., elected office) or laws limiting non-electv offices w/ important public policy (police, teachers, probation officers) c. Illegal aliens not a suspect class; rational basis (except kids' education intermediate) D. Quasi-Suspect Classifications (S I C) 1. Sex (Gender) (intermediate) a. Intentional discrim. against women invalid; classes benefiting women to remedy past discrim. valid b. Intent'l discrim. against men usually invalid (but rape/all male draft held substantially related to important govt interest) c. Most gender classifications struck (death benefits, alimony W only, 1 sex state school, discrim. min. drinking age) E. Other Classifications (Rational Basis) W E H U B A M E T S Usually upheld; garden variety laws; law need only be non-insane (not sensible, humane, wise or appropriate) VIII. FUNDAMENTAL RIGHTS (st. scrutiny; Due Process & Eq. Prot.) (don't add to list of fundamental rights) -> Denied to EVERYONE (Due Process); ONLY SOME (Equal Prot) A. Right of Privacy (CAMPER) 1. Can't prohibit distribution nonmedical contraceptives to adults 2. Abortion (right to have) Can be overriden by compelling state interest; state compelling interests are in protecting pregnant women's life & health & protecting a viable fetus. Must be narrowly tailored to the compelling interest (Webster state CAN restrict if wants to) a. 1st trimester: probably invalid unless re: medical procedures b. Post 1st to viable: valid if protects woman, not just restricting abortions c. Viability: can ban unless threat to woman's life/health d. Consent laws no good; notification laws OK e. Govt can stop ANY use of fed monies to support, inform or suggest abortion 3. Marriage. Rt of male/female to marry/dissolve (can restrict prison inmates if reas. related) 4. Education (right to educate kids). Can educate outside public schools s/to state right to prescribe reas. educ. standards 5. Related (extended families). Zoning regs can't prohibit extended families 6. Right to read obscene material in home (not child porn) 7. No privacy right to engage in sodomy, or to prevent state's collection & distribution of personal data (drug lists; bank records) B. Right to Vote 1. Restrictions on Right to Vote. State can require reas. residency period; property ownership condition usually invalid; poll tax invalid 2. Dilution of Rt to Vote. 1 person, 1 vote when any govt level selecting reptvs by districts (districts must be = size). Doesn't apply to Special Purpose Election (highly specialized govt like water dists). Gerymandering (draw dists to disadv 1 political party); racial gerrymandering invalid if prove discrim. purpose; for political must show effective & extremely long lasting (froze out party), so usually upheld 3. Candidates and Campaigns. State can't charge fee making impossible for indigents to run; reas. nondiscrim. reg. requiring candidates to show reas. support to have names on ballot is OK; state can also give more $ to major parties. C. Right to Travel Interstate (not international) Some restns on right to cross state lines OK; state can restrict subsidies to own residents, but must be reas. time (generally < 1 yr EXCEPT divorce or in-state tuition 1 yr OK) D. First Amendment Freedoms (next part) FIRST AMENDMENT FREEDOMS I. FREEDOM OF SPEECH & ASSEMBLY A. Speech regulations/laws usually content or conduct regs B. Reasonableness of Reg. Overbreadth covers more speech than necessary (nudity can be obscene or not); vagueness if no clear notice of what's prohibited. Too much official discretion unreas. ALL VOID on face C. Scope of Speech Have freedom NOT to speak; can't force symbol/slogan on you or pledge. Also don't have to carry other side, or use of bar dues D. Content Neutral Restrictions (Time, Place & Manner - Regulation of Conduct) 1. Public Forums (streets, sidewalks, parks) -> Reg. permissible if content neutral; rationally tailored to serve significant (IMPORTANT) govt interest; leaves open alternative channels of communication a. Neutral on its face and as applied b. Signif./impt. met w/ every legit govt interest 2. Nonpublic Forums (military bases, schools, govt workplace) -> Reg. valid if viewpoint neutral and reas. related to legitimate govt purpose a. Can forbid if dangerous, disruptive (keep to classroom agenda) (high school speech) (school paper) 3. Private Forums (homes) -> Govt can adopt reas. regs to limit access to private forums (solicitations) -> EVEN IF REG. MEETS TIME, PLACE, MANNER STILL COULD BE OVERBROAD, VAGUE OR TOO MUCH DISCRETION! E. Content Based Speech Restrictions (Unprotected Speech-Regulation Based on Content) -> Must be narrowly tailored to achieve a compelling govt interest (usually struck) Unprotected Speech (Compelling Interest) F I C O D 1. Inciting Imminent Lawless Action Concretely related to unlawful conduct NOW; illegal conduct likely; speaker intended to cause it (clear & present danger imminent lawless action) 2. Fighting Words Trigger to violence addressed to someone; so abusive likely to incite immediate physical retaliation (most usually overbroad/vague on MBE) 3. Obscenity (Rule of 4 S's: SEXY, make society SICK, judged by right STANDARDS, lacks SERIOUS value) a. Describes or depicts sexual conduct that, taken as a whole by the average person: appeals to the prurient interest in sex, using a community standard, is patently offensive and an affront to contemporary communcity standards & lacks serious value using a nat'l reas. person standard (educational, scientific, artistic, political) b. Patently offensive to average community member (not ultrasensitive) c. Can regulate obscenity indirectly by zoning (zone adult theaters together/apart); child pron prohibited. Can't ban private poss'n obscene material 4. Defamatory Speech Public official/figure or public concern, P must prove defamation + 1st Am requires prove falsity & some degree of fault 5. Commercial Speech - False Advertising a. If truthful & not misleading - protected -> Can be banned/regulated if misleading; pertains to illegal conduct; AND if the reg. serves a SUBSTANTIAL govt interest, directly advances that interest and NARROWLY TAILORED to serve the interst (suppressed no more than reas. necessary) b. Substantial govt interests: cigs, whiskey, gambling F. Prior Restraints (b/4 Speech occurs) Must show special societal harm. Requires narrow, reas. definite standards; injunction promptly sought; prompt & final determination of restraint validity G. Freedom of the Press (no greater freedom than citizen) Can't refuse to reveal sources (unless statute) but can't be s/to special newspaper tax. More reg of TV & radio to protect rts of viewers/listeners II. FREEDOM OF ASSOCIATION & BELIEF (Implied 1st Am) Govt can't prohibit politically unpopular groups or unduly burden right to belong to them. Can infringe if compelling state interest (unrelated to idea suppression) and is least restrictive means of protecting the govt interest A. Electoral Process. Laws re: elections; can limit $ to candidate (corruption, not ballot referendum. B. Public Employment & Association 1. Restraints on Conduct Can't fire public e/ee expressing views unless disrupts e/mt policies or authority. Can't fire for party affiliation, political philosophy. EXCEPTION: high level govt officers/advisors (policymakers) 2. Loyalty Oaths. OK but can't prohibit Communist Party membership or abstention from govt overthrow (EXCEPT unlawful overthrow OK); can't require support flag 3. Association Disclosure. Only if relevant to e/mt or benefit sought; can still invoke 5th Am. III. FREEDOM OF RELIGION A. Free Exercise Clause 1. No punishment of Beliefs Need not be an organized religion. Can inquire into your sincerity but NEVER the validity or truth (under strict scrutiny could impose if compelling but has never found) 2. No religious exemption for gen'l conduct regulation Only challenge if specifically designed to interfere w/ religion. If gen'l doesn't matter burdens relig. conduct a. EXCEPT: can't refuse unemploymt benefit if quit for religious reasons & no required school attendance Amish for Free Ex. & fundamental right to educate b. Across board legit rule is enforceable (no snakehandling) B. Establishment Clause (prohibits laws respecting the establishment of religion) 1. Sect Preference. Valid only if narrowly tailored to compelling interest (unlikely). MUST TREAT ALL ALIKE 2. No Sect Preference. Valid if has secular purpose, has a primary effect that neither advances nor inhibits religion (neutral primary effect) and produces no excessive govt entanglement w/ religion a. Generally law favoring/burdening religion or specific relig. group invalid; BUT law favoring or burdening large society segment that HAPPENS to include relig. groups is OK (Navity & other; Legis. Prayer) b. Test applied strictly when govt $ aid to relig. institutions (1) College/hospitals: OK if nonrelig. purpose (2) Grade & high school: usually fail (if given to all schools & can't be used for religion OK - textbooks; trans, tax credits all students, test for health/learning problems, BUT audio-visual could be religious purposes or field trips, $ to teachers). TOO MUCH ENTANGLEMENT c. Public school sponsor religious activity invalid but accommodation of religion is OK (leave for relig. class off-school, can open school to meet like other groups; NO bible reading, prayer or 10 Commandments) ----- Brought to you by - The 'Lectric Law Library The Net's Finest Legal Resource For Legal Pros & Laypeople Alike. http://www.lectlaw.com