Term
| 4 Steps of Equal Protection Analysis |
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Definition
1. Is there “state action?”
2. Did the government “intentionally” or “purposefully” treat two groups differently?
3. Did the governmental action affect a “suspect class” or did it deprive a class of people a “fundamental right?”
4. Applying the standard of review |
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Term
| What is the difference b/w substantive due process claim & equal protection claim |
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Definition
Due Process - Assumption that different groups are treated the same but law invaids "fundamental right"
Equal Protection - Gov't treating one group differently than another (either suspect class OR fundamental right) |
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Term
| Which is a stronger argument, due process or equal protection claim & why? |
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Definition
| "[E]qual protection is a more explicit safeguard against discrimination" Bolling v. Sharpe |
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Term
| What provision of the Constitution makes the doctrine of Equal Protection applicable to the States? |
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Definition
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Term
| What provision of the Constitution makes the doctrine of Equal Protection applicable to the federal government? |
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Definition
| 5th Amendment; see Bolling v. Sharpe |
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Term
| 2 circumstances where Equal Protection is different if law was enacted by the federal government |
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Definition
1. Classifications burdening aliens (because Congress’ authority to determine the conditions of immigration)
2. Classifications relating to the military (because of the federal government’s war power) |
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Term
| Describe the meaning of the “similarly situated/real differences” test |
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Definition
o Similarly Situated: Discriminatory law would be “arbitrary and capricious,” meaning there is “no good reason to treat the two groups differently”
o Real Differences: If the objectives of the statute target a “real” difference between the two groups then the disparate treatment could be constitutional |
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Term
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Definition
| The “marketplace of ideas.” Allow the free exchange of ideas so that the best ones will prevail, even if they seem repugnant at first. |
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Term
| Adarand Constructors v. Pena |
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Definition
| Laws with racial classifications must be narrowly tailored and the government must show that there was no race-neutral means by which the law’s goal could be accomplished. |
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Term
| Arlington Heights v. Metropolitan Housing Corp |
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Definition
| A city’s decision to reject a rezoning proposal for low-income housing was deemed constitutional because the legislative history showed no intent to discriminate. |
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Term
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Definition
| Michigan Law was allowed to use race as one factor in admissions because diversity was at the heart of the school’s mission. Because of this mission, the Court found racial diversity to be a compelling and legitimate interest at Michigan Law. SS applied. |
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Term
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Definition
| A law compelling speech (like the one here requiring students to salute the flag) frustrates the fundamental meaning of having a democratic society. |
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Term
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Definition
Vopper, a radio show host, anonymously received a recorded cell phone conversation between the president and chief negotiator of a local teachers union in which the president made a threat about blowing up the homes of school board members. HELD
- Publishing matters of public importance outweigh most privacy violations |
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Term
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Definition
| VA law made it a crime to advertise abortion clinics. The Court declared this law unconstitutional because such ads were of public interest and involved the communication of information. Additionally, the activity being advertised is legal. |
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Term
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Definition
| There is an equal protection component of the due process clause of the 5th amendment so when the federal gov't discriminates it must also treat similarly situated individuals the same under the law (apply levels of scrutiny) |
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Term
| Boys Scouts of America v. Dale |
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Definition
| Applying a New Jersey anti-discrimination law that would require the Boy Scouts to retain gay scout leaders impaired the group’s right of expressive association, thus the Court did not uphold application of the law. |
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Term
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Definition
KKK leader, was convicted under an Ohio law that criminalized advocating violence or terrorism as a means of accomplishing political reform. Law did not distinguish between this and the incitement to imminent lawless action. HELD:
- Mere advocacy of dangerous ideas cannot be prosecuted
- Mere membership in a dangerous group cannot be prosecuted |
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Term
| Central Hudson Gas v. Public Utilities Commission of New York |
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Definition
| New York passed a law banning promotional advertising by an electrical utility. The court struck it down even though the government had a substantial interest in having the law because the law was not narrowly tailored. |
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Term
| Chaplinsky v. New Hampshire |
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Definition
| Government may punish fighting words, or face-to-face words that are likely to cause an imminent breach of the peace. |
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Term
| Christian Legal Society v. Martinez |
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Definition
Court upheld a state law school policy of withholding funds from any student group that did not have an open-membership policy.
A limited public forum is one created by the government and open to use by only certain people.
Regulations on speech in a limited public forum are constitutional if they are
reasonable and viewpoint neutral. |
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Term
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Definition
| 1st amendment right of free speech applies to corporations. Laws cannot create “preferred speakers.” Corporations are allowed to run their own campaign advertisements, but they must still disclose who funded the ads. |
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Term
| City of Cleburne v. Cleburne Living Center |
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Definition
The City of Cleburne denied a zoning permit to a company trying to build a home for the mentally retarded even though it was to be built in an area already zoned for hospitals.
The Court held that rational basis applies to laws dealing with the mentally retarded.
The Court ruled in favor of the home, saying the city had no legitimate purpose for denying the zoning permit here. |
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Term
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Definition
| established intermediate scrutiny for laws that discriminate against gender. Here, the Court struck down a law that allowed 18-20 year old females to drink 3.2% alcoholic beer but not 18-20 year old males. The gender classification of this law was not substantially related to its important governmental interest. |
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Term
| Crawford v. Marion County Election Board |
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Definition
| Indiana passed a law requiring voters to produce a government issued ID before they could vote. Court upheld it after applying rational basis because preventing voter fraud was a legitimate governmental goal in having the law. |
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Term
| Elk Grove Unified School District v Newdow |
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Definition
| “Under God” is a ceremonial deism and not a violation of the Establishment Clause when said in school |
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Term
| Employment Division v. Smith |
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Definition
| An individual’s religious beliefs cannot excuse him or her from compliance with a valid criminal law. Court used rational basis to uphold conviction of Native Americans. |
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Term
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Definition
| Arkansas made it a criminal offense to teach evolution. Law was passed to promote a set of religious beliefs. The Court struck down the law because, under the Establishment Clause, a state cannot promote religious teachings in its public schools. |
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Term
| FCC v. Pacifica Foundation |
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Definition
| FCC has the right to regulate a radiobroadcast that is indecent but not necessarily obscene. Radio is uniquely pervasive and prior warnings are not effective. |
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Term
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Definition
| Because the target of the law was to non-veterans, and not to women specifically (who were disproportionately impacted), she was not found to be a suspect class. |
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Term
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Definition
| When a legislature adopts a law “because of” rather than “in spite of” its disparate effect, there is a discriminatory motive and the law is probably unconstitutional. |
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Term
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Definition
| States are entitled greater deference in regulating pornographic depictions of children |
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Term
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Definition
Court upheld a law prohibiting targeted protests in residential homes while ruling that a residential street constitutes a public forum.
This was a constitutional content-neutral law because it was:
- narrowly tailored to define a targeted protest
- preserved ample alternative channels of communication and
- substantially served an important governmental interest.
Frisby standard applies when the Court must determine whether the time, place, and manner regulations were “narrowly tailored to serve a significant governmental interest.” |
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Term
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Definition
| A gender classification is unconstitutional unless it is substantially related to an important government interest. “Sex frequently bears no relation to ability to perform or contribute to society.” |
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Term
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Definition
| Aliens are a suspect class because citizenship is a proxy for race. Here, the Court ruled that states cannot pass law limiting aliens’ access to welfare benefits. |
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Term
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Definition
| State university (Michigan) is allowed to use race as a consideration for admission as long as it is just one of many factors looked at in an attempt to achieve diversity |
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Term
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Definition
| Right to vote in state elections is not a fundamental one. Poll tax was at issue. Court struck this tax down applying rational basis because wealth is not germane to one’s ability to partake intelligently in the electoral process. |
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Term
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Definition
| Court upheld a law prohibiting any protestor from coming within 8 feet of an abortion clinic visitor while within 100 feet of the clinic. This was a constitutional content neutral law because it regulates conduct rather than content. It also left open ample alternative channels of communication. |
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Term
| Holder v. Humanitarian Law Project |
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Definition
| Federal law making it a crime to provide material support to any foreign terrorist group is constitutional because “material support” was carefully defined not to infringe on protected speech. What appears to be peaceful aid can put to violent ends by a terrorist organization. |
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Term
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Definition
| City of Ladue implemented an ordinance prohibiting homeowners from displaying signs on their property except for absolute necessities like home sale. The Court deemed this an unconstitutional content neutral law, saying it was not narrowly tailored because it did not leave open ample alternative channels of communication for some expressive rights (political speech). |
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Term
| Latter Day Saints v. Amos |
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Definition
| Supreme Court upheld the exemption to the Civil Rights Act of 1964 stating that religious organizations are allowed to discriminate on the basis religion. |
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Term
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Definition
| Laws are allowed to criminalize conduct but not status. The Court struck down a law against homosexual sodomy because this law was using sodomy as a proxy to criminalize the status of being gay. Moral disapproval is not a legitimate state interest. |
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Term
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Definition
Prior restraint v. Subsequent punishment
Court struck down a law requiring governmental approval before someone could distribute literature of any kind. This was a prior restraint that violated the freedom of press. |
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Term
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Definition
| freedom to select one’s partner in marriage is a fundamental right |
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Term
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Definition
Nativity display setup by the city did not violate Establishment Clause because it was a mere celebration of a public holiday.
Holiday display at Christmastime included a nativity scene, Santa and the reindeer, and a large sign saying "Season's Greetings," as well as a number of other nearby displays such as a wishing well and a
snow person. |
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Term
| McCreary County v. ACLU of Kentucky |
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Definition
| Ten Commandments displayed on the courthouse wall is unconstitutional under the Establishment Clause |
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Term
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Definition
State statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper. The Florida statute exacts a penalty on the basis of the content of a newspaper. HELD:
A newspaper editor’s decision on what to put into the paper is protected by the 1st amendment |
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Term
Michael M
J. REHNQUIST
re: Gender & Similarly Situated |
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Definition
"this Court has consistently upheld statutes where the gender classification is not
invidious, but rather realistically reflects the fact that the sexes are not similarly situated
in certain circumstances" |
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Term
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Definition
| statutory rape law that protected only women was held to be constitutional because it was substantially related to its goal (prevent teenage pregnancy) |
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Term
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Definition
| Miller was prosecuted after he mailed out advertisements for an adult book to unwilling recipients. Obscenity is not protected by the 1st amendment because it has no redeeming social importance. |
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Term
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Definition
| Court struck down a Virginia law making it illegal for the NAACP to recruit plaintiffs for litigating against public segregation because the NAACP’s conduct was constitutionally protected political association. |
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Term
| New York Times v. Sullivan |
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Definition
| Citizens have a constitutionally protected right to criticize government officials unless the statements are legitimately false and made with “actual malice.” |
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Term
| New York Times v. United States |
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Definition
Prior Restraint v. Subsequent Punishment
Court lifted an injunction against the New York Times preventing the publishing of a classified study on Vietnam because the U.S. failed to show that publishing the study would lead to direct, immediate, and irreparable damage. |
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Term
| Parents Involved with Community Schools v. Seattle |
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Definition
| Outright racial balancing is unconstitutional because it is not a narrowly tailored means of achieving racial diversity. |
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Term
| Pierce v. Society of Sisters |
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Definition
| right of parents to direct children’s upbringing is a fundamental one |
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Term
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Definition
| right to travel freely throughout the country (Harlan dissent) |
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Term
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Definition
| Texas statute denying public school enrollment to undocumented alien children was struck down because it did not further any important governmental interest |
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Term
| Railway Express Agency v. New York |
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Definition
Equal Protection Clause stands for the principle that “what government officials impose upon the minority must also be imposed upon the majority.”
Ads on the side of trucks
- State Action – City of NY Traffic Regulation
- Intent to Discriminate – City intends to treat truck advertisers who have ads for their own business differently than truck advertiser who want to have ads for other people’s businesses
- SC or FR? – No suspect class or fundamental right
- Standard of Review – Rational Basis
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Term
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Definition
| Prior warnings are effective on the Internet so law making the transmission of obscene images to children was an unconstitutional content based law. |
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Term
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Definition
| Alabama’s voting apportionment led to some citizen’s votes being worth more than others’ votes. Court held voting to be a fundamental right and struck the apportionment law down using strict scrutiny. |
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Term
| Roberts v. United States Jaycees |
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Definition
| Jaycees were a male-only group that promoted civic pride and leadership. Minn. chapters tried to admit women by apply a state anti-discrimination law. National Jaycees argued this law did not apply to them because they had a 1st amendment right to associate for expressive purposes. Court sided with Minn. chapter b/c the application of the law did not burden the associational freedoms of the Jaycees. The law served a compelling and legitimate state interest without suppressing the group’s freedom of expression. Admitting women to the Jaycees will not infringe on the overall mission of the Jaycees. |
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Term
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Definition
| Court struck down a Colorado amendment that would eliminate the prohibitions on discriminating against sexual orientation because this amendment amounted to government-encouraged discrimination. |
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Term
| San Antonio School District v. Rodriguez |
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Definition
| education is NOT a fundamental right |
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Term
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Definition
| Court applied rational basis in upholding the Texas law on public school funding despite its disparate effects due to race and level of income differences. |
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Term
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Definition
| If a law imposes a substantial burden on one’s exercise of religion, then strict scrutiny applies. Here, the state had no compelling interest in denying Sherbert’s unemployment compensation because she was “unavailable” to work on Saturdays. |
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Term
| Skinner v. Oklahoma Ex. Rel. Williamson |
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Definition
| procreation is a fundamental right |
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Term
| Strauder v. West Virginia |
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Definition
| law limiting jury duty to only white males is discriminatory on its face and thus unconstitutional. |
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Term
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Definition
| access to equal education opportunities (Texas Law was superior to alternative law school only for blacks) |
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Term
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Definition
| Burning a flag is political expression protected by the 1st amendment. Under the 1st amendment, the government cannot prohibit expression of an idea simply because the majority of society finds the idea offensive or disagreeable. |
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Term
| U.S. Dept. of Agriculture v. Moreno |
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Definition
| Court applied rational basis to strike down a law that excluded from a federal food stamp program any household with one person unrelated to the rest of the residents. The legislative history showed the law was adopted to prevent “hippies” from participating in the food stamp program. This law thus had an illegitimate purpose because it was based on a bare desire to harm. |
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Term
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Definition
| Court upheld a federal law prohibiting the intentional destruction of one’s draft card. The Court said this was a constitutional content-neutral law because it served the substantial governmental purpose of keeping an efficient system for mobilizing an army. |
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Term
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Definition
| The government cannot criminalize material depicting animal cruelty simply because it finds the work to be valueless. The law here was also unconstitutionally overbroad because it prohibited protected speech in the form of animal documentaries. |
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Term
| United States v. Virginia |
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Definition
| The Court found that VMI’s objective (to produce leaders) is not substantially advanced by its categorical exclusion of women. This law was based on generalizations about the inherent talents of males and females. |
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Term
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Definition
| Ten Commandments display, placed on the state capitol grounds just outside the statehouse, is constitutional under the Establishment Clause. |
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Term
Van Orden v. Perry
Breyer
Placement of 10 Commandments |
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Definition
| The 10 Commandments can convey a secular moral message as well as a historical message. The placement of the statue suggests that the state intended for the nonreligious aspects of the tablets’ message to predominate. |
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Term
Van Orden v. Perry
Rehnquist
Placement of 10 Commandments |
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Definition
| The placement of the 10 commandments on the Texas Capitol grounds is a far more passive use of the 10 Commandments than was the case in Stone where the elementary school students had to read the 10 commandments every day. |
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Term
Van Orden v. Perry
Stevens (dissent)
Placement of 10 Commandments |
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Definition
| The history of religious speech in American politics does not resolve the issue in this case. The permanent display of religious text on state property mixes religion and governmental affairs. The majority also ignores much of the founding fathers’ anti-religion stances. |
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Term
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Definition
| Court struck down a Virginia law prohibiting cross burning with the intent to intimidate because it treated any cross burning as prima facie evidence of the intent to intimidate. Burning a cross, may, in some contexts, be lawful political speech. |
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Term
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Definition
| The Court upheld a NY law exempting religious organizations from taxation. The 1st Amendment holds that the government cannot act in ways that interfere with religious beliefs and practices or have the effect of doing so |
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Term
| Ward v. Rock Against Racism |
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Definition
| NYC law regulating the volume of a concert venue was found to be a constitutional content neutral law because it left open ample channels of communication. The important governmental interest was avoiding excessive volume. |
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Term
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Definition
| a laws disparate impact alone is not enough to trigger an equal protection problem. The law only has a discriminatory motive if it was the disparate impact was a motivating factor in adopting the law |
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Term
| Whitney v. People of California (Brandeis) |
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Definition
The suppression of speech is the first step in creating a tyrannical government. In order to support a finding of clear and present danger needed to have a ban on speech, the state must show:
- Immediate, serious violence was an expected result of the speech
- The speech was so inciting that it would have led to violence before there is an opportunity to discuss its meaning
- The speech created an emergency situation
- There is a probability of serious injury to the state before the speech can be properly regulated in some way |
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Term
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Definition
| Compulsory education law substantially burdened Amish parent’s religious beliefs as well as their fundamental right to direct their children’s upbringing. Using the test from Sherbert v. Verner – compulsory school attendance is not the least restrictive means to reach the governmental objective. The law was struck down. |
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Term
Wisconsin v. Yoder
Douglas (dissent) |
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Definition
| The Court should not have considered how this law affected only the Amish parents. It should have considered how it affected the Amish children as well. |
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Term
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Definition
| City of San Fran granted laundry permits to all applicants except for Chinese applicants. This city law violated the equal protection clause because it was selectively enforced |
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Term
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Definition
| Publicly funded vouchers could be used at parochial schools (no violation of the Establishment Clause) |
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Term
| Guidelines for determining whether something is obscene and not protected under the 1st amendment |
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Definition
1) Whether the average person, applying contemporary community standards would find that the material, taken as a whole, appeals to prurient interests
2) Whether the material describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
3) Whether the material, taken as a whole, lacks serious literary, artistic, political, or scientific value |
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Term
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Definition
| A statute is overbroad when, in prohibiting certain unprotected speech (such as child porn), it also happens to prohibit legal, protected speech. The law must be substantially overbroad before it will be struck down under this doctrine |
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Term
| Test for laws that govern commercial speech: |
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Definition
1) Protected commercial speech concerns lawful activity and is not misleading
2) The government must have a substantial interest in regulating the speech
3) The law must be directly advancing the government’s substantial interest
4) The law must be narrowly tailored to the substantial governmental interest |
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Term
| Constitutional Content Neutral Law Analysis |
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Definition
1) Law is within the constitutional power of the government (e.g. War Powers Clause)
2) Governmental interest in having the law is important
3) Governmental interest is not suppressing free speech
4) Law is narrowly tailored (no more restrictive than necessary)
5) Law leaves open ample alternative channels of communication |
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Term
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Definition
• Public forum (a forum dedicated for all to express themselves)
- Intermediate scrutiny (narrowly tailored)
- Leave open ample alternative channels of communication
• Limited public forum (forum created by the government for designated speakers)
- Reasonable
- Viewpoint neutral
- EX: classroom (dedicated for a specific purpose)
• Non-public forum (people do not have a right to express themselves there)
- Rational basis
- Open ample alternative channels of communication |
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Term
| Public Forum Doctrine Media characteristics |
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Definition
- Invasive, pervasive, accessible to children
- Affirmative steps to access the media?
- Who owns the media?
- Is it a platform/conduit? (Time Warner v. Author of a book)
- Is it historically regulated by the government?
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Term
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Definition
1st Amendment
""Congress shall make no law ... prohibiting the free exercise [of religion]."
Meaning...
government cannot hinder religion |
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Term
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Definition
First Amendment
"Congress shall make no law respecting an establishment of religion...."
Meaning...
government cannot endorse religion |
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Term
| Free Exercise & Establishment clause taken together mean.... |
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Definition
| The government must remain neutral toward religion |
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Term
Employment Division v. Smith
Test for Free Exercise |
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Definition
1. Law of general application
2. Not directed at religion
3. Not interfering with other constitutional rights [other fundamental rights … this step is to distinguish this case from Yoder]
4. [then use rational basis]
o Is there a legitimate governmental objective?
5. If element of Smith test is not satisfied:
o Sherbert – law of individualized assessment is at issue (use strict scrutiny)
o Yoder – constitutional right at issue (use strict scrutiny) |
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Term
Sherbert v. Verner
2 Part Test for Free Exercise |
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Definition
1) Does the law place a burden on the free exercise of appellant's religion?
2) Does some compelling state interest, a subject within the
State's constitutional power to regulate, justify the substantial infringement of
appellant's First Amendment right?
(Generally applicable but Emp Div v. Smith may be better test) |
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Term
Cerimonial Diesm Factors
Pledge of Allegiance |
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Definition
1) The history and ubiquity of the Pledge of Allegiance
2) The absence of worship or prayer in connection with saying the Pledge Allegiance
3) The absence of a reference to a specific religion in the Pledge Allegiance
4) Minimal religious content in the Pledge Allegiance (2 out of 31 words) |
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Term
| Test for a constitutional religious display |
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Definition
1) The government did not intend to endorse religion
2) Average reasonable person would conclude that the government did NOT intend to endorse religion
3) There is no entanglement between government and religion (Lemon) |
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Term
The O’Brien Test for content neutral laws
(4 elements, 5th added by Ladue) |
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Definition
1. [Law must be within the constitutional power of the government]
2. Important / Substantial / [Significant – O’Brien] governmental interest
3. Governmental interest unrelated to the suppression of free expression
4. No greater than is essential to the furtherance of that interest [narrowly tailored? Least restrictive means?]
5. Ample alternative channels of communication |
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Term
| Ward v. Rock Against Racisim 3-Part Test for content neutral laws |
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Definition
1. Must serve a significant govt’l interest
2. Must Be narrowly tailored
3. Law must leave open ample alternative channels of communication |
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Term
| Constitutionality of Coerced or Prohibited View Point Based Speech |
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Definition
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Term
| Constitutionality of Government Speech (distinguished from coerced or prohibited speech) |
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Definition
o Where the government is paying for speech or speaking itself
o per se Constitutional
Exceptions:
If it is “racist” government speech then it might be a problem
If the gov’t is taking a position on religion there might be a problem but it is an establishment clause problem, (not a freedom of speech problem) |
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Term
| Constitutionality of Compelled Commercial Speech |
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Definition
o Permitted under the commercial speech doctrine
o EX: advertising, warning labels, nutritional information
• How far can gov’t go to require warnings is currently in the courts regarding graphic depictions of the consequences of smoking that might be required to be placed on cigarettes. |
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