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Streamlined Constitutional Law II Outline I. Fundamental Rights Under Equal Protection and Due Process i. All fundamental rights are strict scrutiny ii. Review of levels of scrutiny 1. rational basis – rational relationship to a reasonable government purpose 2. intermediate scrutiny – substantial relationship to an important governmental interest 3. strict scrutiny – narrowly tailored to be the least restrictive means to achieve a compelling governmental interest b. Constitutional Protection of Reproductive Autonomy i. Right to Procreate – didn’t used to be (Buck v. Bell), but now is a fundamental right (Skinner v. Oklahoma) ii. Right to Purchase and Use Contraceptives – is a fundamental right iii. Right to Abortion 1. Roe v. Wade recognized it as a fundamental right 2. Planned Parenthood v. Casey reaffirmed and made the current rules a. Pre-viability – there cannot be restrictions that are undue burdens on abortion b. Post-viability – they can only place burdens of there is there is a concern of the health of the mother c. you can place conditions that have to do with safety (only by doctors or only in hospitals, etc.) d. you cannot place some that rise to the level of a substantial burden (such as consent from a husband). e. The state can insist on waiting periods of 24 hours (not considered an undue burden) 3. Things that can be required and are not considered an undue burden a. Informed consent b. Government doesn’t have to pay for it unless mother’s life is in danger (Harris v. McRae) c. 24 hour waiting period d. parental consent if alternative procedure is available (Belloti v. Baird) 4. Things you cannot do a. Spousal Consent (Planned Parenthood v. Danforth) b. Spousal Notice (Planned Parenthood v. Casey) c. Any regulation that places an undue burden on any pre-viability abortions (Sternberg v. Carhart) c. Constitutional Protections for Medical Care Decisions i. Right to Refuse Treatment – sometimes have the right to refuse treatment 1. Mandatory vaccination laws allowed – Jacobson v. Massachusetts a. The court upheld a state law that required vaccinations b. Prisoners have the right to be free from anti-psychotic drugs, but not an absolute right – Washington v. Harper c. State law that said removal of life sustaining treatment can only be done after a showing of clear and convincing evidence that it 1 d. e. f. g. h. was the patient’s wish Cruzan v. Director, Missouri, Dept. of Health ii. Right to Physician Assisted Suicide – no right to it 1. statutes against physician assited suicide don’t violate due process (Washington v. Glucksberg) or equal protection (Vacco v. Quill) Constitutional Protection for Sexual Orientation and Sexual Activity i. Bowers v. Hardwick – state statute criminalizing homosexual sex between consenting adults does not violate due process or equal protection 1. this act was later struck down by the state in Powell v. State No fundamental right for your info to be kept private (Whalen v. Roe) Fundamental right to domestic travel and to have the same privileges as other residents (Saenz v. Roe) i. No fundamental right to Foreign travel The Right to Vote – you have a fundamental right to vote i. Restrictions on the Ability to Vote 1. Poll Taxes – unconstitutional (Harper v. Virginia State Board of Elections) 2. Property Ownership Requirements a. General rule – if you don’t really matter, we don’t really care who elects you. i. But as soon as you start to matter, we will find you and apply all of the voting rights problems to you b. Apportioning voting power by property ownership only allowed when the property owners will bear an enormous burden as compared to the general public (Ball v. James) 3. Literacy Tests – constitutional but declared illegal by statute 4. Prisoners and Convicted Criminals Right to Vote a. States cannot deny the right to vote to those being held awaiting trial and must provide them with absentee ballots if they have no other way to vote b. However once a person has been convicted of a felony, the state can permanently disenfranchise the person from voting. ii. The Dilution of the Right to Vote 1. voting districts cannot be grossly disproportionate in population for any elections with multiple bodies Constitutional Protection for Access to Courts i. Gideon v. Wainwright – US Const. guarantees the right to a lawyer if you are facing jail time ii. Griffin v. Illinois – if a guy has a mandatory appeal to a conviction, the US must provide you with a copy of the transcript. But you are not guaranteed council on your appeal iii. Filing Fees – all about what kind of obstacles can the government put in your way 1. rule of thumb – if it’s really really important the government cannot prohibit you from getting into court a. filing fees unconstitutional for divorce court (Boddie v. Connecticut) and custody proceedings (M.L.B. v. S. L. J.) 2 b. filing fees constitutional for bankrupty court (United States v. Kras) and appeal to adverse welfare decisions (Ortwein v. Schwab) iv. Prisoners’ rights to access of the Courts 1. Held that prisoners have the right to the instruments of appeal (such as law libraries, paper, pens, etc.), (Bounds v. Smith) but cannot bring suit unless they can show that they suffered an actual injury because of the deficiencies (Lewis v. Casey) i. Constitutional Protection for a Right to Education i. General rules 1. there is no fundamental right to education, so only must meet rational basis j. Procedural Due Process – procedures the government must follow before they take away someone’s life, liberty or property (three questions to ask to find a violation) i. What is a Deprivation? 1. Negligence is only a deprivation if it shocks the conscience a. TEST – only the most egregious official conduct as that which shocks the conscience can give rise to liability under the 14th amendment 2. A State’s failure to protect an individual against private violence does not constitute a violation of the due process clause (Deshaney v. Winnebago) ii. Is it a Deprivation of “Life, Liberty, or Property”? 1. What is a Deprivation of Property? a. Defined property based on the importance of the interest to the individual and a reasonable expectation to continued receipt of the benefit (Board of Regents v. Roth) 2. What is a Deprivation of Liberty? (almost identical to property) a. Two ways to define liberty i. Determine what is “liberty” based on the importance of the interest at stake OR ii. Determine whether there is a liberty interest based on the expectations engendered by state law b. Reputation as a Liberty interest i. Goss v. Lopez 1. held that kids who were suspended from school without a hearing were deprived of their liberty interest in their reputation and their property interest in going to school (must have reputation and some other property interest) ii. Paul v. Davis 1. held that police distribution shoplifters pictures to merchants, even if defamatory, is constitutional because there is no liberty interest in reputation c. Liberty Interests for Prisoners – don’t seem to have one iii. What Procedures are Required? 1. Matthews v. Eldridge – 3 factor balancing test for what procedures are required (when P says he didn’t get an adequate hearing) i. The importance of private interest, 3 II. ii. The risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards, iii. Cost of additional procedure First Amendment: Freedom of Expression a. Free Speech Methodology i. THRESHOLD QUESTION – Does the law burden speech? If so… ii. Is the law content based or content neutral? (if neutral, apply intermediate scrutiny, but if content based…) 1. A content based law is subject to strict scrutiny 2. Content based is defined as laws that by their terms discriminate on the basis of the ideas, views or message expressed a. Next determine whether viewpoint or subject matter neutral (this is just to define in case it becomes a public forum issue) i. Viewpoint neutrality – violated if we don’t want this view discussed ii. Subject matter neutrality – violated if we don’t want this topic discussed iii. If content based, it must pass strict scrutiny or it fails 1. Exceptions a. Secondary effects – if a law is aimed at the secondary effects of speech, it is considered content neutral and only must meet intermediate scrutiny (City of Renton v. Playtime theaters) b. Unprotected speech i. Incitement of Illegal Activity 1. The “Clear and Present Danger” Test and Reasonableness Approach a. Unlike earlier cases, such as Schenk v. United States, Frohwerk v. United States, Debs v. United States, Abrams v. United States (clear and present danger test), and Gitlow v. New York, Whitney v. California (reasonableness test), and Dennis v. United States (risk formula approach), the test changed dramatically in favor of free speech in Brandenberg v. Ohio. 2. * The Brandenburg Test - Government can suppress speech meant to incite illegality only when: a. There is imminent harm i. “you must do this now” b. A likelihood of producing illegal action, and i. must have an audience susceptible to the message and capable of being moved c. Intent to cause imminent illegality 4 i. must intend to incite people to violence, pissing people off is not enough 3. This test almost always fails ii. Fighting Words – are not protected by the constitutuion (Chaplinsky v. State of New Hampshire) 1. This doctrine has not been successfully applied since because seen as … a. Vague and Overbroad OR i. An ordinance prohibiting abusive language struck down as overbroad because it covered more than just fighting words (Gooding v. Wilson) b. Content based Restrictions i. Hate crime law prohibiting racially motivated speech is a first amendment violation because it is content based (R.A.V. v. City of St. Paul) 2. When you see fighting words, first determine if vague, if not get rid of it as content based distinction iii. The Hostile Audience Cases – when the police have a good faith that a crowd is about to become violent because of a speaker, it is not a 1st amendment violation to use reasonable means to stop the speaker if: 1. the crown cannot be controlled and 2. there is likely to be a violent response iv. Obscenity – obscenity is unprotected speech 1. Test for whether something is obscene – Miller v. California a. It is designed to illicit a sexual response based on community standards b. It must be patently offensive c. When taken as whole, the work must lack serious redeeming artistic, literary, political, or scientific value 2. Government may not punish private possession of obscene material – Stanley v. Georgia 3. Child Pornography – is not protected – does not have to meet the Miller test a. Is protected to have i. Virtual child porn OR ii. Adults who look like kids acting in porn b. Court can punish possession of child porn – Osborne v. Ohio c. Less protected speech i. Profanity and “Indecent Speech 5 1. profane and indecent language is protected by 1st amendment - Cohen v. California 2. The Broadcast Media a. SC held the prohibition of indecent speech not allowed on television and radio Federal Communications Commission v. Pacifica Foundation 3. Telephones a. indecent or profane material is constitutional over the telephone - Sable Communications of California, Inc. v. Federal Communications Commission 4. The Internet a. Using the internet to transmit obscene materials to a minor violates the first amendment (Reno v. American Civil Liberties Union) b. Act that regulates the availability of sexual material on the internet to minors not unduly vague just because it uses the standard of “contemporary community standards”, but the court has not decided if the act is constitutional (Ashcroft v. American Civil Liberties Union) 5. Cable Television a. Content-based restriction requiring cable TV operators to block out or limit access to sex channels unconstitutional because less restrictive means available. (United States v. Playboy Entertainment Group, Inc.) b. much less regulation of indecency will be tolerated in the cable TV area than in the broadcast area, because of cable’s ability to block access on a household-byhousehold basis ii. Commercial Speech – is protected 1. What is commercial speech? a. Test for whether something is commercial speech – Bolger v. Youngs Drug Products Corp. (must be yes to each) i. The advertisement in question must be proposing a commercial transaction ii. A specific product must have been mentioned iii. It must have been an advertisement iv. It must have been economically motivated 6 2. When can commercial speech be regulated by the government? (Central Hudson test) a. Is the activity lawful and information not misleading b. Substantial government interest c. Advancing the governmental interest d. Is the regulation of speech reasonably tailored (a substantial fit) to achieve the government’s interest this is basically intermediate scrutiny. 3. Regulating Commercial Speech to Achieve other Goals a. held that a racially integrated town’s prohibition on real estate “for sale” and “sold” signs violated the first amendment (Linmark Associates, Inc. v. Township of Willingboro) b. declared unconstitutional a state law that prohibited price advertising on alcoholic beverages (44 Liquormarket, Inc. v. Rhode Island) c. Can regulate gambling advertising d. Advertising by Lawyers and other Professionals i. Truthful, non-deceptive advertising by lawyers or other professionals is protected by first amendment iii. Torts 1. Defamation a. Public Officials - must show actual malice to recover damages for defamation (New York Times v. Sullivan) b. Public Figures as Plaintiffs i. A public figure must show actual malice to recover damages for defamation ii. A private individual is not a public figure if they do not purposely thrust themselves into the limelight c. Private Figure, matter of public concern – must show actual malice to recover punitive damages, negligence for compensatory d. Private Figures, Matter Not of Public Concern – do not need to show actual malice to recover for defamation - Dun & Bradstreet v. Greenmoss Builders, Inc. 2. Intentional Infliction of Emotional Distress 7 a. Public figure & public officials cannot recover for IIED unless the statement proven to be false and was made with actual malice or reckless disregard for the truth. (Hustler Magazine v. Falwell) 3. Public Disclosure of Private Facts a. The Court held that the 1st amendment prevents liability for public disclosure of private facts if the information was lawfully obtained from public records and is truthfully reported (Bartniki v. Vopper, Cox Broadcasting Corporation v. Cohn) unless it relates to a still living rape victim’s name (Florida Star v. B.J.F.) 4. Right to Publicity a. Protects the ability of a person to control the commercial value of his or her name, likeness or performance iv. Conduct that Communicates 1. When is Conduct Communication? a. Intent to convey a specific message AND b. Substantial likelihood that the message would be understood by those receiving it 2. When may the Government Regulate Conduct that Communicates? a. O’Brian Test - You can penalize communicative speech if you can prove: i. The government is acting pursuant to constitutional authority ii. the exercise of constitutional power furthers an important or substantial government interest iii. The government interest must be unrelated to the suppression of speech iv. The incidental restriction is no greater than necessary b. Flag Desecration – is protected speech (Texas v. Johnson) 3. Spending Money as Political Speech a. Buckley v. Valeo i. Congress and the state leg can limit contributions to candidates ii. They may not limit the amount of money a candidate spends iii. Personal contribution limits to your own campaign are unconstitutional 8 iv. Personal contribution limits to your own uncoordinated campaign are unconstitutional (i.e. “friends of”) v. Presidential campaign funding is upheld, but the spending power is different than the first amendment b. Nixon v. Shrink Missouri Government PAC i. upheld state contribution limitations under the Buckley standard c. party’s are treated the same as individuals (can have limits on campaign contributions, nut no limits allowed on contributions to uncoordinated campaigns (Federal Election Commission v. Colorado Republican Federal Campaign Committee) d. Corporations are treated as people for campaign contribution limitations (First National Bank of Boston v. Bellotti) iv. Other issues outside content 1. vagueness – when the language of a law does not, with a degree of specificity, alert the reasonable person as to what is prohibited 2. overbreadth – when a law regulates substantially more speech than the constitution allows 3. prior restraints - any administrative or legal system or order preventing speech from occurring a. Prior restraints to speech are unconstitutional unless it is a licensing requirement and meets the test b. Licensing as a Prior Requirement – where the government requires a license or permit in order for speech to occur i. TEST FOR LICENSING – requirements 1. Must be a very important reason for the licensing system a. ex. licensing for a parade route i. can’t have two parades on the same street at the same time 2. Must be clear standards leaving almost no discretion to the licensing authority 3. There must be procedural safeguards a. Test i. there must be a prompt decision by the government on whether the speech will be allowed, ii. there must be a full and fair hearing before speech is prevented, AND iii. there must be a prompt and final judicial determination of the validity of any preclusion of speech 4. forum issues – find the appropriate catagory 9 a. Public Forum - Government property that the government is constitutionally obligated to make available for speech (sidewalks, parks) i. Factors for determining whether a public forum 1. tradition of the availability of the place for speech 2. extent to which speech is incompatible with the functioning of the place 3. whether the primary purpose of the place is for speech ii. Requirements 1. The regulation must be content neutral unless the government can justify a content based restriction by meeting strict scrutiny 2. Must be reasonable time, place, or manner restriction that serves an important governmental interest and leaves open adequate alternative places for speech 3. A liscensing or permit system for the use of public forums must serve an important purpose, give a clear criteria to the liscensing authority that leaves almost no room for discretion and provide procedural safeguards 4. Government regulation of speech in public forums need not use least restrictive alternatives, although they must be narrowly tailored to achieve the government’s purpose b. Limited Public Forum - a place that the government could close to speech but that the government actually voluntarily and affirmatively opens to speech (ex. school auditoriums, community centers) i. Once you open a forum to one type of group you have to open it to all types ii. For the times when a limited public forum is open for speech, it must meet the requirements of a public forum. c. Non-Public Forum i. Government properties that the government can close to all speech activities but regulation must be 1. reasonable and 2. viewpoint neutral ii. Examples of non-public forums 1. school mail systems, jails, military bases, ad space on city transit systems, airports, post office’s privately owned sidewalk, tv stations d. Private Property – no first amendment right on private property 5. Speech in Authoritarian Environments: Military, Prisons and Schools a. Military i. members of the military do have first amendment protection, but speech on their part that undermines the effectiveness of response to command may be limited 10 even if it could not be limited in a civilian setting (Parker v. Levy) b. Prisons i. prison officials can control speech that is reasonably found to be detrimental to prison security (Thornburgh v. Abbott) c. Schools i. Purely political speech is protected (Tinker v. Des Moines Independent Community School District), but vulgar language (Bethel School District No. 403 v. Fraser) and contents of student newspapers that are not political speech (Hazel wood School District v. Kuhlmeier) are not v. Other Infringements of Freedom of Speech 1. Government employees cannot be prohibited from receiving compensation for speaking (United States v. National Treasury Employees Union) 2. Compelled Speech – the government cannot compel you to speak or identify yourself (McIntyre v. Ohio Elections Commission, Buckley v. American Constitutional Law Foundation, Inc.) without a compelling state interest 3. Unconstitutional Conditions – the government cannot condition a benefit on a requirement that you give up a constitutional right a. exception i. The Court held that conditioning federal funding to family planning centers on their not doing abortions is not a first amendment violation because it is government speech to which spending clause power applies (Rust v. Sullivan) b. Freedom of Association i. Laws Requiring Disclosure – governments cannot have these where it could chill association (National Association for the Advancement of Colored People v. State of Alabama ex. rel Patterson) 1. Campaign Finance Disclosure a. Generally the court has upheld requirements that candidates disclose their contributors because of the government’s compelling interest in stopping corruption EXCEPT where there is reason to believe the disclosure will chill contributions to minor party or candidate ii. Compelled Association 1. government can only require association if the funds are distributed in a viewpoint neutral way (Abood v. Detroit Board of Education and Keller v. State Bar of California) iii. Laws Prohibiting Discrimination 1. THE TEST: freedom of association will only allow discrimination if the group has: a. Relative smallness b. A high degree of selectivity c. seclusions from others in critical aspects of the relationship iv. Laws prohibiting or punishing membership 11 III. 1. government can only punish membership if it proves that a person actively affiliated with a group a. knowing of its illegal objectives and b. with the specific intent to further those objectives c. Freedom of the Press – have no more rights than the average citizen i. Taxes on the Press 1. the government may not impose a tax that applies to newspapers or all media but that is not generally applicable to other people ii. Application of General Regulatory Laws 1. laws of general applicability apply to everyone, including newspapers (Cohen v. Cowles Media Company) iii. Reporters do not have the right to keep their Sources and Secrets Confidential in a good faith grand jury subpoena. iv. Laws Requiring that the Media Make Access Available 1. right to reply laws may be valid as to the broadcast media (Red Lion Broadcasting Co. v. F.C.C.), but not to newspapers (Miami Herald v. Tornillo) v. Access to Judicial Proceedings – press has a right to them, but so does the public and either of these rights are absolute (Richmond Newspapers, Inc. v. Virginia) vi. Access to Prisons – press has no more rights than the average citizen (Pell v. Procunier and Houchins v. KQED) Religeon a. Free Exercise Clause i. APPROACH 1. Threshold question – law must have a substantial burden on a sincere belief 2. If a law is generally applicable (no exceptions) a. Will be upheld even if they substantially burden religious practice UNLESS they are targeting a specific religion or motivated by an animus toward religion (Smith test) b. If it doesn’t pass Smith test, use strict scrutiny 3. If a law is not generally applicable (exceptions exist) a. Look to see if the law burdens religion. If it does, then it must meet strict scrutiny 4. Exceptions – when you use strict scrutiny regardless of Smith test a. Cases dealing with unemployment benefits b. Hybrid cases (cases with free exercise claims plus another constitutional claim) ii. Miscellaneous Rules 1. Government can never claim that religious beliefs are false or fraudulent, regardless of how weird (United States v. Ballard) 2. Governmental Justifications a. The federal government’s refusal to exempt Amish employers from paying social security taxes on wages paid survived strict scrutiny even though his beliefs forbid his receiving social security (United States v. Lee) 3. Paternalistic Justifications a. Christian science guy died because he didn’t want medical treatment based on his religion. Someone wanted to sue for 12 wrongful death. (Baumgartner v. First Church of Christ, Scientist) b. Establishment Clause i. APPROACH 1. Standing for Establishment Clause claims a. Generally you cannot sue for how your taxes are being used (United States v. Richardson) b. However, for establishment clause claims, you don’t need an actual concrete injury, only that your money is probably being used for the establishment of religion (Flast v. Cohen recognized this exception) 2. Lemon Test a. In order for a rule or statute NOT to violate the establishment clause, it must satisfy the following three prongs: i. Must serve a secular legislative purpose ii. Have a primary effect that neither advances nor inhibits religion iii. Must not impermissibly entangle church and state (no pervasive entwinement) 1. These last two prongs were later combined into 1 in Zelman v. Simmons-Harris b. If it doesn’t pass lemon, use strict scrutiny unless it falls within one of the case exceptions that decides not to apply lemon and instead uses the endorsement or coercion tests. i. Prayer at openings, etc. c. If it does pass lemon, then do the endorsement test 3. Endorsement test (born in O’Conner’s concurrence in Lynch v. Donnelly and adopted by the majority in County of Alleghany v. ACLU) – cite these cases a. An endorsement of religion exists if the following two prongs are met: i. Subjective test – if an adherent to the religion, would view it as an endorsement of their beliefs AND 1. in other words, the message the speaker intended to state ii. Objective test – a non-adherent would view it as disapproval of their religious beliefs 1. in other words, the way the message was interpreted by outsiders b. If it fails the endorsement test, use strict scrutiny c. If it passes the endorsement test, run the coercion test 4. Coercion test (Adopted in Lee v. Weisman) – cite this case a. Whether a reasonable person would feel compelled to participate in those circumstances ii. Other cases you just have to know 1. Voluntary moment of silent prayer violates the establishment clause because effect is state endorsement of religion (Wallace v. Jaffree) 2. Atheist conscientious objectors are allowed to use the religion exemption to the draft (Welsh v. United States) 13 3. public school release time programs, in which students were allowed to attend religious classes sponsored by the denomination during the school day upheld because no coercion (Zorach v. Klauson) 4. Churches do not violate title VII when they refuse to hire people because of their religion and such does not violate the establishment clause – valid accommodation (Corporation of Presiding Bishop v. Amos) 5. Effect on Third Parties a. the gov will not impose on a private employer under a union contract to accommodate a guy’s religious practice because this would shift the burden to a private employer (Trans World Airlines v. Hardison) b. State statute that provides Sabbath observers with an absolute right not to work on their Sabbath violates the Establishment Clause (Estate of Thornton v. Caldor Inc.) 6. Statutes must be neutral to all denominations or meet strict scrutiny (Board of Education, Kiryas Joel Village School District v. Grumet and Larson v. Valente) 7. Pervasive Governmental Presence a. Prisons must accommodate all religions if they are going to accommodate some (Cruz v. Beto) b. held that having chaplains in the army does not violate the establishment clause – didn’t apply lemon (Katcoff v. Marsh) 8. Government Aid a. Upheld state statute that reimbursed the parents of parochial school children for bus transportation expenses because it is applied neutrally to all kids (Everson v. Board of Education) 9. No Aid to Religious Teaching a. State grants to teachers at parochial schools, even with many safeguards to show they aren’t teaching religion, was unconstitutional because of excessive entanglement (Lemon v. Kurtzman) 10. Indirect v. Direct aid – generally allowed as long as a neutral purpose and first paid to someone other than the schools a. Indirect Forms of Aid– general rule - When aid follows the kids and the government isn’t making a choice, its ok i. Held that a state vocational rehabilitation program for blind people, when paid to a student who used it to attend a religious school did NOT violate the establishment clause (Witters v. Washington Department of Services for the Blind) ii. Government provided interpreter for deaf student in a religious school was not a violation of the establishment clause because it was a neutral program (Zobrest v. Catalina Foothills School District) iii. Held that the University of Virginia giving funds for printing a Christian student newspaper does NOT violate the establishment clause as long as its paid to a third party first (Rosenberger v. University of Virginia) b. Direct Aid 14 i. State aid to religious school based on student enrolment does not violate the establishment clause because its effects is not an endorsement of religion (Mitchell v. Helms) ii. Zelman v. Simmons-Harris 1. Held that voucher systems are constitutional as long as not created for the purpose of benefiting religion 2. Collapses the Lemon test to two prongs a. Secular legislative purpose AND b. entanglement 11. Conditions of Governmental Aid – are allowed if there is a compelling governmental purpose for the restriction a. To condition funding on an agreement not to discriminate based on sex allowed (Grove City College v. Bell) and refusal to grant tax exempt status to a college that discriminates based on race is ok (Bob Jones University v. United States) c. Religion and the Government’s Influence over Culture i. Official Prayers in Public Schools 1. You cannot lead prayer in public schools (Engle v. Vitale) a. Also can’t allow voluntary moment for “meditation or prayer” (Wallace v. Jafree) 2. You cannot read bible verses in school (Abington School District v. Schempp) 3. You CAN open a state legislatures day with a prayer (Marsh v. Chambers) BUT you CANNOT have a rabbi give a prayer at a middle school graduation (Lee v. Weisman) ii. School Curriculum Issues: Creation v. Evolution 1. You cannot forbid the teaching of evolution in public schools (Epperson v. Arkansas) 2. You cannot require creation be taught everytime evolution is mentioned (Edwards v. Aguillar) iii. Public Religious Displays 1. You may have a public religious display as long as it does not appear that the government is endorsing religion a. It must be part of a larger secular display and not in a courthouse (possibly any government building) (Lynch v. Donnelly and County of Allegheny v. ACLU) iv. Sunday Closing Laws 1. McGowan v. Maryland a. Laws requiring merchants to be closed on Sunday do not violate the establishment clause v. Religious Group Access to school facilities 1. Goodnews Club v. Milford Central School a. Held that a school must allow a religious group to use school rooms after school since they allowed other groups (limited public forum) because to not violated the establishment clause 15