Term
| Equal Protection Analysis |
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Definition
1. Determine class used
2. Determine which level of scrutiny applies
3. Apply it |
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Term
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Definition
1. Compelling Govt. Interest
2. Class used must be narrowly tailored to fit that govt interest
* No facially neutral alternative |
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Term
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Definition
| Race, ethnicity, national origin, legal aliens, and their proxies |
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Term
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Definition
| Gender, Non-marital children, illegal alien children and their proxies |
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Term
| Quasi Suspect Class Analysis |
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Definition
1.Important govt. interest
2. Class used must be substantially related to achieve the important govt. interest. |
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Term
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Definition
1. Burden on claimant
2. Rational Basis is the default test
*Unless you can show a disparate impact |
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Term
| Disparate Impact Analysis |
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Definition
1. Disparate Impact
2. Clear pattern of behavior on unexplainable grounds other than suspect class
3. Look for discriminatory intent using Argersinger Factors
4. If discriminatory intent found, apply Feeny test
5. If not, apply rational basis |
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Term
| Factors for showing discriminatory intent (disparate impact) |
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Definition
1. Historical background of decision
2. Departures from normal procedure
3. Departure from substantive rule
4. Legislative of administrative history - contemporary statments of the decision makers |
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Term
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Definition
1. Gov't must show it chose class "in spite" of discrimination instead of "because of"
2. If "In spite" use appropriate test for class
3. If "because of" automatic failure. Rational basis |
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Term
| Fundamental Right Analysis |
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Definition
1. Look to see if an individual is restricted from doing something
2. Decide immediately whether a fundamental right is at issue |
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Term
| List of Fundamental Rights |
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Definition
1. Right to marry
2. Right to bear or not bear children
3. Right to decide how to raise one's children
4. Right to abortion before viability
5. Right to refuse unwanted medical treatment
6. Right to travel
8. Right to die
9. Right to live with family members
10. Right to run for office |
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Term
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Definition
| Economic, social welfare, health, safety, etc etc |
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Term
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Definition
1. State can't completely ban.
2. Wait period okay
3. Spousal notification.
4. Juvenile's requirement to notify parents upheld |
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Term
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Definition
| 1. Relatives have fundamental right to live together. |
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Term
| Upbringing and Education Rights |
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Definition
1. State can't require parents to send children to public school
2. Grandparents have no interest in grandchildren
3. Fundamental right to continue parenting |
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Term
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Definition
| Forced Sterilization of career criminals not okay, no rational relationship between crime and punishment |
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Term
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Definition
| No fundamental right to consensual sex, but being shitty to a single group is not okay (Lawrence v. Texas) |
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Term
| Right to die or refuse medical treatment |
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Definition
1. In the case of an incapacitated guy, there needs to be clear and convincing
2. No right to recruit someone to help |
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Term
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Definition
No poll taxes
Voter qualifications okay if constitutional
No dilution: One person, one vote |
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Term
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Definition
1. Can't have a residency duration req. for voting unless it's reasonably calculated to maintain voting list or something like that.
2. Can't use residency to punish welfare recipients |
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Term
| How to tell if something is content based |
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Definition
| 1. Woul the harm exist to the same degree if the listener did not understand english? if no, probably content based. |
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Term
| Content Neutral (3 part test) |
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Definition
1. Significant govt. itnerest
2. Narrowly tailored to achieve the objective
3. Leave open adequate alternative channels for speech
4. Cosnider Public Forum doctrine when time, place, manner restrictions come up. |
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Term
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Definition
1. Government must narrowly tailor its statute to capture ONLY the speech necessary to accomplish goal
2. Triggers Strict Scrutiny |
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Term
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Definition
| Consider if a person of normal intelligence wouldn't know whether an action in question is forbidden |
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Term
| Calls for subversive or illegal action |
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Definition
1. Clear and present danger test:
2. Is the illegality imminent
3. Was it intended to produce the illegality
4. Was it reasonably likely to produce the illegality |
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Term
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Definition
1. Require truly content neutral on it's face and as applied.
2. Excessive discretion to the official charged w/issuing the permit not okay.
3. Right to ignore permit if facially neutral
4. Must apply if "as applied" |
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Term
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Definition
1. Govt. can suppress fighting words, but not offensive speech.
2.When looking at a ban on offensive speech, check vagueness. |
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Term
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Definition
1. Content neutral gets intermediate scrutiny in traditional and limited public forums.
3. No protection on private grounds. Govt can limit private property owner's right as long as there are other avenues. |
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Term
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Definition
A public official require that plaintiff prove actual malice
2. private figure must show neglect
c. in iied cases, plaintiff must prove actual malice |
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Term
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Definition
1. Community standard: average member would find work as a whole appeals to the prurient interest
2. Nakedness not enough - must be real or simulated sex
3. Pandering can be relevant?
4. No matter how obscene a work is, private possession OK?
exception is child porn |
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Term
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Definition
Restrictions survive only if they:
1. Directly advance
2. Substantial govt. interest
3. In a way that is not more extensive than necessary.
4. Content based restrictions are okay here |
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Term
| Denials of public sector job, or benefits based on expressive conduct |
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Definition
Same as prosecution for expressive conduct.
2. The govt can require giving an oath but can't make you promise not to do what is otherwise const.
3. Exception: You can be deprived of expressive freedom where it will truly interfere with your job performance
Where a public benefit as opposed to a job is at stake, there is no performance exception |
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Term
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Definition
1. Govt. action will prevent communication from reaching public: NOT FAVORED.
2. Must be narrowly tailored for compelling or significant govt interest
3. Preserving the right to a fair trial might be a valid prior restraint
4. Contractual agreements |
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Term
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Definition
1. Secular purpose
2. Primary effect neither advances nor inhibits religion
3. Statute must not foster an excessive entanglement. |
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Term
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Definition
1. Secular purpose
2. Primary effect neither advances nor inhibits religion (Coercion and endorsement can be advancing)
3. Statute must not foster an excessive entanglement. |
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Term
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Definition
Look to intent first :When the purpose of the govt is to negatively effect conduct BECAUSE it's religious, triggers strict scrutiny
Then look to who it burdens. Unintentional burden results in intermediate scrutiny
i. subst. important govt goal
ii. exempting would subst. hinder that goal.
iii. In criminal cases, if burden is incidental, automated validation |
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Term
| Burden of proof in free exercise |
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Definition
1. Claimant must show that regulation imposes substantial burden
2. The govt must show a compelling secular reason for refusing to exempt |
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Term
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Definition
| Strict Scrutiny (unless in commercial speech) |
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