Free Exercise
Cantwell, Sherbert, Yoder, Smith, Boerne
Easy Questions:
Know the established doctrines from
Reynolds,
Why is Cantwell important? In other words, what did it establish for the first time?
Remember that if Cantwell wins at any stage of the game, litigation is over. Why? (This answer is not in the book, and so if you don’t know the answer, that is OK.)
What is the valid secular policy test?
What is the logical basis for the final decision in Yoder, according to Burger, the author of the majority opinion? Why does Scalia warn us about applying the “compelling state interest” test from other areas of the law to religious liberty in Smith? What is the difference between religious liberty and other areas of the law, according to Scalia?
What is the difference between Lukumi and Smith?
Why did justices who disagreed with the majority opinion in Smith agree with the majority opinion in Boerne?
More difficult questions:
You should come to class with an opinion about your answer to the following questions:
Can Sherbert be reconciled logically with Braunfeld?
Can Sherbert be reconciled logically with Smith?
Establishment
Easy Questions:
What is the implication of the difference between the “wall of separation” and “non preferential treatment?”
Why do justices look to framers?
What is the implication of the interest in history in Everson? In other words, why make all those historical statements? What does it do to the future of establishment interpretation by the Supreme Court?
What are other ways besides money to establish a religion? Why does that make a difference?
With regard to Everson, do you agree with the “state paid policeman” point?
Know the three prongs of the lemon test.
What is the distinction between helping disabled students?
Regarding Abington, does it make a difference whether the state composes the prayers? What does Brennan say? Would this make a difference, given other establishment cases?
What does Stewart say in his dissent that there is a substantial free exercise claim? What is the standard that he would use in order to determine whether unconstitutional establishment has occurred? More difficult questions:
In what manner and to what extent is Everson different from Lemon?
Given Burger’s secular purpose distinction – what is the population of things that could be considered secular?
Be sure to mark down when you notice that the author has anticipated counter arguments.
Also, be sure to notice where the author does a good job emphasizing the argument that his evidence is meant to support, and how it contributes to the larger argument. What is the purpose of the article?
Is the author religious?
What are the
How does Witters exemplify the inherent
contradiction between establishment restrictions and free
exercise? Explain why state
What point is he trying to make by showing
how states have interpreted state
How does that contribute to his larger argument?
Explain the non-exemption rule, its roots and its application today.
How is the case of McDaniel related to the main argument?
Why does he discuss the two kinds of neutrality; what purpose does that discussion have for the main argument?
Privacy I
Easy Questions:
Be sure to know the various bases for the right to privacy.
What is the justification for the constitutional finding that an unborn child is not a person?
More difficult questions:
In what manner and to what extent is Blackmun’s defense of a privacy right to abortion maintained given changes in technology?
Privacy II
Easy Questions:
How does White distinguish Bowers from
What do you think of the discussion of the basis for a fundamental right based in history? Is that consistent with previous discrimination cases?
What has the role of tradition played in other Supreme Court decisions compared to this one?
More difficult questions:
In what manner and to what extent is Bowers consistent with Romer?
Speech: Clear and Present
Danger
Easy Questions:
Is there a substantial difference, according to the court cases that we read for the week, between misstatements and matters of opinion, in terms of how much protection statements deserve?
What is the line to be drawn between clear and present danger and speech that does not cause a clear and present danger? According to Schenck, what might be the best example of a hypothetical case in which speech was allowed and yet there was some threat of danger that nevertheless is not clear and present? What about the other side of the line – speech that is the least dangerous and yet is still dangerous enough not to be allowed? What is the logic of the justifications for freedom of speech in this case? Is there a logic in this case that makes it a clear strict constructionist decision, or are there other justifications (such as the marketplace of ideas, distrust of government). The majority opinion in Abrams, says:
A technical distinction may perhaps be taken between disloyal and abusive language applied to the form of our government or language intended to bring the form [250 U.S. 616, 624] of our government into contempt and disrepute, and language of like character and intended to produce like results directed against the President and Congress, the agencies through which that form of government must function in time of war.
Do you buy this distinction?
What is the most important point of Gitlow?
What is syndicalism?
More difficult question:
In what manner and to what extent could the bad tendency test result in the same outcomes as the clear and present danger test?
Symbolic Speech
Easy Questions:
What is the philosophical foundation of the
dissent in
What is the basis for protecting freedom of speech in the schools?
What are fighting words? How would this be similar to other cases that we have read with regard to the application of harm?
Why would symbolic speech be different from other kinds of speech? Can you think of other kinds of symbolic speech that would/would not be protected?
More difficult questions:
Is O’Brien consistent with the clear and present danger test? Is it consistent with the bad tendency test?
Speech: The Balancing Act
Easy Questions:
Is the speech in Hill content or viewpoint based?
What is the basis for the RAV decision? What does it mean to be overbroad?
What is the competing interest in the Boy
Scouts case? Is it consistent with
More difficult questions:
In what manner and to what extent do you
agree that
Speech Obscenity and Libel
Easy Questions:
What is the Hicklin test?
What is the due process problem associated with the “I know it when I see it” standard?
More difficult questions:
In what manner and to what extent is the notion of harm consistent or inconsistent in the cases dealing with libel and obscenity? Is this view of harm consistent with clear and present danger? With the bad tendency test?
Equal Protection, Race: I
Easy Questions:
What is the basis for the decision in Plessy?
Why did this case deal with a man who is only 1/8th black? (Think strategy).
Why did Harlan bother with a dissenting opinion (again, think strategy). Why would the NAACP choose the context of law schools to challenge the separate but equal ruling?
Regarding Brown, what does “all deliberate speed” mean?
Why did the Court go to great lengths to reach a unanimous decision?
What effect did the unanimous opinion have on school desegregation policy?
What does the effect of the unanimous opinion tell us about the Supreme Court’s powers of implementation?What are the main areas of compromise in the Brown II decision?
What is the logical basis for the Swann decision? Consider the notions of harm and compelling state interests.
More difficult question:
In what manner and to what extent is Swann necessitated by Brown? What other remedies could have been available?
Equal Protection, Race: II
Easy Questions:
The Court reached a unanimous decision in Loving. What effect did this decision have on state policy and lower court decisions? What does the effect of the Loving ruling say about the Supreme Court’s ability to enforce its rulings?
The Loving case involved a challenge
to a law that showed racial bias in its wording. How is this ruling
applicable to laws whose intent to discriminate isn’t
overt? Regarding Shelley, is the approach adopted by the
More difficult question:
Regarding Moose Lodge, if the majority had adopted the dissenting view, how would the Court’s ruling have affected other private organizations (golf courses, country clubs, fraternal organizations)? When would there NOT be state action?
In what manner and to what extent does Loving set the stage for a guarantee of gay marriage?
Equal Protection, Gender
Easy Questions:
With regard to Reed, why did the Court apply the rational basis test? What other tests were at the Court’s disposal? Does this decision ease the task of arguing gender discrimination in court?
With regard to Craig, what is the philosophical justification for mid level review?
What is the basis for Scalia’s dissent in
More difficult question:
How do these decisions relate to cases of racial discrimination? What are the areas of consistency and inconsistency?
Equal Protection, Other
Classifications
Easy Questions:
With regard to Romer, what level of scrutiny did the majority opinion employ? How does the level of scrutiny employed in this case affect future cases involving discrimination based on sexual orientation? Does this decision enable future suits alleging discrimination against homosexuals? What are the areas of consistency and inconsistency with prior areas of discrimination (g.e. race and gender)? Do claims of discrimination due to sexual orientation face a greater constitutional burden?What is the classification in Rodriguez?
What is the level of scrutiny in Saenz? What is the right being protected? With regard to Saenz, does the majority opinion provide an adequate defense of its use of the Privileges and Immunities Clause, or is the dissenting opinion correct in its view that the Clause may not have the meaning the Court ascribes to it?
More difficult question:
In what manner and to what extent is Rodriguez consistent with Brown?