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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
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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.)
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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)
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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
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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
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