focus drill

arlington heights factors for facially neutral laws

Dogs Hunt Slowly, Pounce Strategically, Learn

• Disparate impact

• Historical BG

• procedural/substantive departures

• Sequence of events

• Legislative/administrative history

Examples of Mathews Balancing Outcomes for PDP

Goldberg:

• Private interest very high (welfare = survival)

• Risk of error = high

• Government burden = moderate

RESULT: Pre-termination hearing required with testimony + cross-examination

Mathews:

• Private interest = lower (disability, not immediate survival)

• Risk of error = lower (medical records)

• Gov burden = high

RESULT: No pre-termination hearing required. Paper review is enough

rules for ADLs

Anti-discrimination laws override association rights for large, unselective, non-intimate groups where inclusion doesn't alter the core message (Jaycees)

compelled association/speech

Laws like the ADL cannot compel speech or design (303 Creative) and

cannot force inclusion if it significantly impairs the group’s ability to advocate its core message (Boy Scouts v. Dale)

Central Hudson for Less Protected Commercial

1. speech concerns lawful activity and isn’t misleading

2. government has important/substantial interest

3. regulation directly furthers that interest

4. restriction is narrowly tailored but not more extensive than necessary

O’Brien Test for content-neutral expressive conduct

1. regulation is within constitutional power of government

2. government has important/substantial interest

3. govt interest is unrelated to suppression of free expression

4. incidental restrictions on 1A freedoms are no greater than necessary

true threats (VA v. Black)

Serious expressions conveying that a speaker means to commit an act of unlawful violence do not receive 1A protection and may be restricted.

TPM

regulation must be content-neutral and:

• (i) Substantial gov’t interest, 

• (ii) Restriction is narrowly tailored to advance that interest, 

• (iii) Restriction can leave open alternative channels of communication (restriction does not need to be the least restrictive alternative)

history and logic for press right of access

is the proceeding:

1. a place that has been traditionally open to the public?

2. are there good policy justifications for opening it?

exacting scrutiny for membership disclosure

when membership disclosure would chill association, govt must show:

1. compelling govt interst

2. substantial relation between the info sought and that interest

free exercise

Government shall not make any law prohibiting free exercise of religion.

smith rule statement

a valid neutral law of general applicability cannot be circumvented on the grounds that it interferes with someone’s religious beliefs/practices, even if it has the incidental effect of burdening a religious practice.

lukumi rule statement

laws that are not neutral and/or not generally applied evince hostility towards religion and strict scrutiny applies.

RFRA rule statement

even if a law is neutral and generally applicable under smith, it still has to pass strict scrutiny if RFRA applies.

establishment clause

Government shall not respect an establishment of religion. Strict separation, neutrality, accommodation

Funding?

Must be neutral

gov MAY fund religious institutions if funding is neutral and generally available

Gov MUST fund religious institutions if excluding is discriminatory → if secular institutions receive funding, religious ones must too

Discrimination among religions

triggers SS

modern test for EC claims

1. History and tradition

2. Coercion and endorsement

   1. Violation occurs when coercion OR endorsement of religion

religious autonomy

1. Ministerial exception

   1. Religious organizations control selection of ministers or employees performing religious roles

   2. No government interference in internal religious leadership

2. Church governance/internal decisions

   1. Courts avoid entanglement in doctrine, leadership, internal structure

FE and EC play in the joints

1. Government has some choice because:

   1. Free exercise does NOT require accommodation

   2. Establishment clause does NOT forbid accommodation.

play in the joints: first refusals

1. Government does not generally HAVE to exempt religious actors (Smith), but the government MUST accommodate when:

   1. NOT NEUTRAL/ANIMUS

      1. Masterpiece cakeshop

      2. Hostility from government → violates FE neutrality

   2. NOT GENERALLY APPLICABLE

      1. Fulton, lukumi

      2. Secular exemptions require religious exemptions

   3. MINISTERIAL AUTONOMY

      1. Government cannot interfere in internal religious governance

      2. Our lady of guadalupe

   4. FUNDING EQUALITY

      1. If secular entities are funded then religious ones must be too

      2. Carson v. makin

play in the joints: free speech overlap

1. Free speech overlap

   1. COMPELLED SPEECH / EXPRESSIVE ASSOCIATION

      1. Government cannot force individuals/organizations to express messages contrary to their group’s expressive message.

         1. Janus

         2. 303 creative

         3. Boy scouts

   2. PUBLIC ACCOMODATION V. ASSOCIATION

      1. Government can require inclusion under neutral rules (university all comers policy)

      2. CLS v. Martinez

   3. RELIGIOUS EXPRESSION IN PUBLIC EMPLOYMENT

      1. Prayer is protected speech, free exercise overlap

      2. Kennedy v. bremerton

policy prep: dobbs criteria for overturning precedent

1. Egregiously wrong

2. Unworkable

3. Lack of legal justification

4. Lack of reliance interests

5. Quality of reasoning

modern methodology case study: Bruen framework for 2ndA

No balancing interests.

1. Text: does conduct fall within 2ndA?

2. History and tradition

   1. History = founding/reconstruction era sources

   2. Tradition = broader practices (common law, regulations)

3. Analogical reasoning

   1. Not identical laws required

   2. Must be “relevantly similar”