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Constitutional Law I
University of Alabama School of Law
Fair, Bryan


B. Fair Spring 2011

STANDARDS OF REVIEW [NOT for congress to define, not in constitution—strictly the court’s discretion.]

1) Strict Scrutiny: (most vigorous) presumption of invalidity, compelling gov. interest with program narrowly tailored to achieve that interest. The government has the burden of persuading the court that the action is constitutional. Requirements

a. Compelling Objective

b. Necessary Means: means must be necessary to achieve compelling objective (cannot be any less restrictive means that would accomplish the goal just as well) (loving v. Virginia)

2) Intermediate Scrutiny: frustrating standard (really should not be a middle ground) Burden of proof would probably be placed on the government (unsure). Requirements:

a. Important Objective: between “legitimate” and “compelling”

b. Substantially Related Means: between “rationally related” and “necessary”

3) Rationale Basis: (least vigorous) presumption of validity, challenger burden to prove arbitrary. Generally whoever is attacking the government action bears the burden of proof. Court must uphold government action so long as two requirements are met:

a. Legitimate State Objective: broad concept (any type of health, safety or general public welfare goal)

b. Rational Relation: the legitimate state objective must have a rational relation to the legislation. Only when the government has acted in a completely arbitrary, irrational way will the rational link connecting the ends and means not be found

NOTE: 14th Amendments Equal Protection Standards:

RATIONAL BASIS: sexual orientation, age, wealth, disability

INTERMEDIATE SCRUTINY: legitimacy, gender

STRICT SCRUTINY: race and alienation


1) COMMERCE CLAUSE (article I § 8) “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”

2) SPENDING CLAUSE (article 1 § 8, clause 1- 2nd part) “to pay the Debts and provide for the general Welfare of the United States…” New York case

3) 10TH AMENDMENT : “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

4) IMPLIED RIGHTS: privacy, right to travel, right to marry, abortion, raise kids

5) 14TH AMENDMENT §5: congress has the power to ENFORCE the provisions of the amendment

6) 14TH AMENDMENT §1: “nor shall any State deprive any person of life, liberty or property, without due process of law” “nor to deny to any person within its jurisdiction the equal protection of the laws”

7) TAXING POWER: (Article I, § 8, clause 1, 1st part): “The Congress shall have the Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the general Welfare of the United States…”

8) 9TH AMENDMENT: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”


10) ESTABLISHMENT CLAUSE: “Congress shall make no law respecting an establishment of religion”

11) FREE EXERCISE CLAUSE: “or prohibiting the free exercise thereof”

12) FREE SPEECH CLAUSE: “Congress shall make no law abridging the freedom of speech”

13) 13TH AMENDMENT §2: gives congress the power to pass legislation to further prohibition of slavery.


I. The Establishment Clause

THE LEMON TEST: (determine validity under Establishment Clause)

1. The statute must have a secular legislative purpose

2. The primary effect must be to neither advance nor inhibit religion

3. The statute must not foster “excessive government entanglement with religion”

– Majority says that Lemon is still good law

– Agostini v. Felton: adapted the test to prohibit EXCESSIVE government entanglement.

– 2nd and 3rd prongs are modified—seems like accommodation more than separation is becoming the test (only bad if FAVOR specific religion, but general public funds are allowed

– Zelman v. Harris: modification—statute has the purpose of advancing or inhibiting religion. Statute has the effect of advancing or inhibiting.

a. Everson v. Board of Education [Access to general welfare legislation (busing to schools)]

i. FACTS: NJ statute permits local schools to reimburse parents for money spent on transporting students to school (public and parochial). Everson filed a taxpayer suit (under Petition Clause of the 1st Amendment—exception to general rule, establishes standing to challenge spending in violation of establishment clause) challenging the board’s right to reimbursed parochial school parents under the establishment clause

ii. Standing—there is NO general right for taxpayers suit, unless constitutional issue

iii. Review Due Process with RATIONAL BASIS; low—only plausible justification

iv. Constitutional Issues:

1. Whether the act violated due process: no, serves a legitimate purpose of educating children and avoiding the risk of traffic hazards

2. Whether the statute violates 1st amendment: no, state can extend benefits of general welfare legislation to all children (cannot exclude b/c of faith or lack)

v. There is a tension here between exercise and establishment: to exclude those who want to go to parochial schools would be to burden their free exercise of rights. Cannot limit participation in general welfare program based on beliefs.

Majority suggests that the clauses are in some way at war with each other. To respect one is to violate the other (careless drafting?)

vi. RULE: Specific Rule: A state may use public funds to assist student transportation to parochial as well as public schools. “The First Amendment requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary”—Black

NJ cannot aid the teaching of religion, but it also cannot hamper its citizens in the free exercise of their own religion—cannot exclude members of any faith, because of their faith or lack of it, from the benefits of public welfare legislation.

1. Is this really public welfare legislation? (did not go to for profit schools)

2. Can you say this is the same as fire or police protection?

vii. DISSENT: disagreed because of their concern that public funds were being used to support church schools.

viii. Governmental actions that VIOLATE the Establishment Clause

1. Official church

2. Coercion

3. Punishment for beliefs or disbeliefs

4. Preference for one church over another

5. Participation in affairs of religious organizations (visa versa)


1) “Establishment of religion clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass law which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion…No tax in any amount, large or small, can be levied to support any religious activities or institutions…to teach or practice religion…the clause against establishment of religion was intended to erect a ‘wall of separation between church and state.’”

2) “Neither a state nor the Federal government can, openly or secretly, participate in the affairs of any religious organizations or groups. In the words of Jefferson, the clause against establishment of religion was intended to erect ‘a wall of separation between church and state’” – Black


1) Jackson Dissent: “the undertones of the opinion, advocating complete and uncompromising separation of Church and State, seem utterly discordant with its conclusion yielding support to their commingling in educational matters.”

2) Rutledge Dissent: “ ‘establishment’ and ‘free exercise’ were correlative and coextensive ideas, representing only different facets of the single great and fundamental freedom”

3) “Two great drives are constantly in motion to abridge, in the name of education, the complete division of religion and civil authority which our forefathers made. One is to introduce religious education and observances into the public schools. The other, to obtain public funds for the aid and support of various private religious schools. In my opinion, both avenues were closed by the Constitution.”

1. Santa Fe Independent School District v. Doe [student lead prayers at football games]

i. FACTS: School modified policy to allow student body to select a speaker who then could choose what to say (invocation) before each football game. Challenged prayer over school PA system as a violation of the 1st amendment.

ii. Constitutional Issues: whether ∆’s policy permitting student-lead, initiated prayer at football games violates establishment clause (substantive due process—power)

Found prayers were NOT private speech; violated 1st impermissibly coercive

iii. Court’s Analysis

1. Private vs. Public religious speech

a. Private speech would be protected

b. This is public speech—the game is endorsed by the school and on school property and some students are required to attend the games (band)

c. Rosenberger gov. must be neutral towards viewpoint in limited public forum (does NOT apply here because this is NOT a public platform)

d. This is government speech endorsing religion

2. Students should choose between attending the games and offensive invocations

3. Election procedure ensures that minority voice will never be heard—minority interest is not protected. Creates an insider/outsider dichotomy. One person is elected for entire season. There are counter-majoritarian aspects of constitution. (no viewpoint neutrality). Insiders/outsiders violates neutrality

4. Voluntary student prayer is permissible at any time, but “transmission of religious beliefs and worship is a responsibility and choice committed to the private sphere.” (must be voluntary cannot force even if agree)


1. “There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free e

nhibiting religion (focus of court in this case)

Specific Rule: Where a state program provides assistance to a broad class of citizens who (as a 3rd party) direct their money by their own independent choice to religious schools, no constitutional violation takes place under the Establishment Clause.

2. Distinguish between programs that provide aid to religious schools directly and true private choice programs (public choice vs. private choice)

a. Government aid program is neutral with respect to religion—assistance is provided to a broad class of citizens (not a targeted program)

b. Private choice of how aid is directed—not readily subject to establishment clause challenges. Beneficiary determines if aid goes to religious group. (not direct stipend—filtered through beneficiary)


1. “Where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the establishment clause.”

2. Perry Ed. Assn. v. Perry Local Ed. Assn.: “In these quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”

3. “Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the ‘first amendment does not guarantee access to property simply because it is owner or controlled by the government”

4. “In addition to time, place and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not merely because public officials oppose the speaker’s view…the state, no less than a private owner of property, has the power to preserve the property under its control for the use to which it is lawfully dedicated” Perry Ed. Assn.

5. O’Connor Concurrence: “The Court’s opinion in these cases focuses on a narrow question related to the Lemon test: how to apply the primary effects prong in indirect aid cases? ….Courts are instructed to consider two factors: first, whether the program administers aid in a neutral fashion…second, and more important, whether beneficiaries of indirect aid have a genuine choice among religious and nonreligious organizations when determining the organization to which they will direct that aid. If the answer to either query is “no” the program should be struck down under the Establishment Clause.”

6. “Establishment clause also requires that state aid flowing to religious organizations through the hands of beneficiaries must do so only at the direction of those beneficiaries”

7. Souter Dissent: Looks to the “no tax in any amount” language in Everson to find the program a clear violation and sees the amount of aid flowing to religious schools as indicative of this. Also says that parental choice cannot significantly eliminate the constitutional problem.

Free Exercise Clause

Nothing in the constitution is superfluous—this is not redundant from the Establishment Clause but an indication that the framers intended an alternative protection (belief vs. conduct). There is a suggestion by the court that a free exercise claim requires another constitutional claim to give the free exercise claim weight—this is suggested NO WHERE in the constitution. (Text suggests that a free exercise claim is independent)

· In Santa Fe Kennedy notes religion is delegated and protected in private sphere (not public)

· Religion is a fundament right and the appropriate standard of review is STRICT SCRUTINY

o Requires gov. establish a compelling governmental interest and prove that the program is narrowly tailored to achieve that interest (burden on gov. to justify its regulation)

§ Compelling interest: “highest order can overcome fundamental right”

§ Narrowly tailored to achieve that interest