Con Law 2 Final

Accommodationist View

A constitutional theory seen in the first amendment establishment clause that prohibits the government from imposing an official religion or coercing religious participation but does not require the government to scrub all traces of religion form public life. The government can acknowledge religion in civic tradition and direct funds to different religions as long as it treats all faiths equally and does not force anyone to believe or participate. Seen in Everson v. Board of Education with Justice Black’s opinion. Also seen with Justice Rehnquists dissent in Wallace v. Jaffrey and seen in Justice Rehnquists opinion in Lemon. Kennedy v. Bremerton school district anchored the Establishment Clause in historical practices over strict separation. The accommodationist view is more open to statutes that support religion through the establishment clause, arguing that we are not completely secular people, so any public expression of religion is not entirely unconstitutional. Accommodationists would argue against the idea that the government must be removed from the private sphere when it comes to aiding religion. By having a secular purpose religious exercise is being inhibited. We have always been a religious people so wiping all religion away is not historically accurate. This is the ground for getting rid of the Lemon test.

The Lemon Test

Seen in Lemon v. Kurtzman, this is a three-pronged test that a statute must pass in order to satisfy the establishment clause. This test is that 1. the law must have a secular purpose, 2. its main effects must be neutral meaning it can’t help or hurt religion, 3. It must not create excessive entanglement between government and religion. In Lemon Rhode Island and Pennsylvania law were both trying to improve secular education, not promote a certain religion. The Lemon test is pure neutrality and secularism to the utmost degree and is often used with indifferent separationist views, it is the belief that religion must not be entangled with the government at all and must serve a secular purpose. The Lemon test was disbanded in Kennedy v. Bremerton School District. Justice Rehnquists dissent in Wallace v. Jaffree holds that the Lemon test has no basis in history and is a historically inaccurate gloss on the first amendment establishment clause. For Rehnquist the Establishment clause doesn’t force complete neutrality of church and state, it only stops one religion being favored over another the government can accommodate someone’s ability to practice.

Indifferent Separation

Seen with the Lemon test in Lemon v. Kurtzman by Justice Burger’s majority opinion. It is the idea that you want to put a wall between church and state, any law that is put in place has to be completely secular. The government must take no cognizant of religion and laws which pass must be completely secular. The law at issue in Lemon violated the establishment clause because the government would take cognizant of religion by separating secular subjects from religious influence. Also seen in Justice Black’s majority opinion in Everson v. Board of Education. The law in this case did not support parochial schools directly in any way, there needs to be complete neutrality when it comes to government involvement in religion, but you cannot completely cut off government support to religious groups because it would harm their ability to practice. The statute in Everson was fine because it was written as a general welfare statute, not a statute that directly supported one religion or was written to directly support one religion.

Suspect Class

The criteria for a suspect class include 1. Immutable characteristics (for example race) 2. A historical record of discrimination based on stereotypes, 3. A lack of effective political power. In Frontiero v. Richardson women did not pass the criteria to be a suspect class per the 3rd requirement. In Plyler v. Doe the majority said that undocumented aliens cannot be counted as a suspect class. Wealth is not a suspect class as established in San Antonio ISD v. Rodriguez. In US v. Skrmetti transgender people are not seen as a suspect class either. Justice Barrett says this is because they lack immutable characteristics of a discrete group. If a group counts as a suspect class, then strict scrutiny can be used to assess the statute and see if it upholds the equal protection clause.

Intermediate Scrutiny

Craig v. Boren was the beginning of intermediate scrutiny. In striking down the Oklahoma law, the court established a new standard for review in gender discrimination cases. It is in between strict scrutiny and rational basis and says that for a statute to withstand a constitutional challenge, classifications by gender must serve important governmental objectives and be substantially related to the achievement of those objectives. Justice Ginsburg used intermediate scrutiny in Unites States v. Virginia, intermediate scrutiny was also used in the majority decision in Plyler v. Doe. It was used in Frontiero v. Richardson but wasn’t solid standard. US v. Alvarez also used intermediate scrutiny. Justice Sotomayor also believed that strict scrutiny should be used in US v. Skrmetti.

The Sherbert Test

Seen in Sherbert v. Verner, essentially the idea of strict scrutiny. The statute must be narrowly tailored to serve a compelling state interest and be the least restrictive means to achieve that interest. Within this case, strict scrutiny is protecting the free exercise clause because having strict neutrality severely limits the free exercise clause. Was used in this case to decide that the free exercise clause prohibits the government from setting unemployment benefit eligibility requirements such that a person cannot properly observe key religious principles.

State Action Doctrine

Seen in the Civil Rights Cases, the 14th amendment only applies to state action by the majority opinion. The idea that equal protection applies to action by the states but not to individuals. This doctrine was also upheld in Shelley v. Kraemer, Justice Vinson ruled that standing alone racially selective covenants did not violate the 14th amendment. Private parties may abide by the terms of the covenant but cannot seek judicial enforcement of such a covenant otherwise it would be state action and state discrimination which violates the equal protection clause.

Critical Mass

Seen in Grutter v. Bollinger, in Justice O’Connor’s majority opinion. This is when admissions admit disproportionately in the application process to achieve the state action of a diverse classroom. In Grutter it was decided that you cannot have a quota system per the equal protection clause, but you can have a critical mass. It is the idea of admitting more students than what exist in the population because you need diversity of opinion for the mission of your school. It is legal to have a critical mass.

Strict Scrutiny

Seen in Grutter v. Bollinger, for the equal protection clause. Race-based classifications must serve a compelling government interest and be the least restrictive means/narrowly tailored to achieve that interest. Seen in Palmore v. Sidoti, the majority in Bakke, the majority in Students for Fair Admission v. Harvard, Parents involved in community schools v. Seattle school district. Brown v. Board of education also used strict scrutiny. Burwell v. Hobby Lobby, Sherbert v. Verner, US v. Alvarez, and Brown v. Entertainment Merchant Assn.

O’Brien Test

Seen in United States v. O’Brien, government regulations are allowed if they are within the constitutional power of the government body, if it furthers an important and substantial government interest, if the government interest is not related to the suppression of free expression, and if the incidental restrictions on the First Amendment freedoms aren’t greater than what is necessary to further that interest. The governmental interest must be substantial, the conduct involved must be incidental, and it must be no greater than essential to further the governmental interest. These criteria must be met for a law to pass the freedom of speech act. It was decided that the law which made the destruction or mutilation of draft cards a crime was not an unconstitutional infringement of O’Briens freedom of speech.

Content Neutrality Rule

Brandenburg Test

Fighting Word Doctrine

Clear and Present Danger Test

Miller Test

Clear Purpose Test

Wallace v. Jaffrey.

Coercion Test

Seen in the majority opinion (Justice Kennedy) in Lee v. Weisman, the government violates the Establishment clause when it coerces people into religious activity. The coercion test was used in Lee v. Weisman to strike down a rabbi speaking at a middle school graduation because the majority said that the students faced public pressure and peer pressure attending the ceremony to stand or maintain silence. The court emphasized that while the pressure was subtle and indirect it can be as real as expulsion. The school rule created subtle and indirect coercion that forced students to act in a way that established a state religion. In Town of Greece v. Galloway, it was decided by the majority that coercion did not take place in this case. Justice Sotomayor in Kennedy v. Bremerton School District also said that coercion should be used to see if Coach Kennedy has tried to coerce other people into his religious practice. Justice Scalia argues in Lee v. Weisman that the first amendment has nothing to do with psychological coercion.

The Great Principle

Seen in Justice Browns majority opinion in Plessy v. Ferguson. Brown refers to the great principle that we are all equal before the law by having the same civil rights but that doesn’t mean we will be treated the same or deserve to be treated the same. As long as the conditions are equal, i.e. both black and white people have train cars, then the law is fine/does not violate the equal protection clause. The 14th amendment does not force integration or co-mingling. Only equality before the law. There is a distinction between social and political rights, the equal protection clause and the constitution only protect political not social rights.

The Endorsement Test

Seen in O’Connors Concurrence in Wallace v. Jaffree. The Endorsement test asks if the actual purpose of a statute is to endorse or disapprove of religion. This test was abandoned in Kennedy v. Bremerton School District. In Wallace it was clear that the legislative history of the Alabama law was to advance a certain form of religion. The act makes non adherents feel like outsiders.

The Smith Test

History and Tradition

Seen in Kennedy v. Bremerton school district. The idea that we aren’t a wholly secular people and history and tradition have allowed for religion in the public sphere. The Supreme Court now evaluates the establishment clause through whether the challenged practice fits within American History and tradition. This began in Town of Greece by establishing that legislative history allows for religious exercise in Congress thus upholding a town’s practice of upholding a public meeting with prayer.

Secular Purpose Test

Seen in McCreary County v. ACLU Kentucky, the court determined that the purpose of keeping the commandments up in courthouses was to advance a faith not for a secular or historical purpose and was therefore a violation of the establishment clause. This heightens the criteria of the Lemon Test. The Lemon test has been changed to only have a dominant secular purpose.

Rational Basis Review

Government must have a compelling state interest.