Con Law Rights

Rule: Only "state actors" can be sued for violating the Federal Constitution

Private actors are treated as state actors when they are:
(a) engaged in "public function" or (activities tradtionally AND exclusively reserved to the states)
(b) "entangled" with the state (because the state has enforced/encouraged their action)
(c) "entwined" with the state (people wearing multiple hats; state actor is acting in dual capacities (gov't and private))

Things that the government does are public functions like administering an election, running a town.

When working closely together, government is subsidizing, encouraging, regulating

Section 1: "No state shall...deny to any person...the equal protection of the laws"
Section 5: "Congress can enforce Section 1"

Private businesses that are open to the public can't discriminate based on race

Congress can't regulate private buinesses based on the 14th amendment

Congress used its power under the Commerce Clause to pass an act that prohibited racial discrimination based on private activity affecting interstate commerce

Viewed Broadly

1. Is the function being performed one that is traditionally and exclusively reserved to the state?
2. Is there a sufficiently close nexus between the state and the action of the private actor such that it can be fairly attributed as state action?

privately owned town was treated as a state actor because their function was open & used as a public area
which meant his rights became more circumscribed by the statutory and constitutional rights of those who use (the area)

Balancing Constitutional rights of property owners against those people who enjoy freedom of press and religion

private political group was a state actor because running an election is traditionally and exclusively performed by a state
(elections conducted by private actors are state action)

private park was a state actor because private property (park) was maintained for serving the public (basically a public place)

private utility was not a state actor because there was not a close nexus between state & the action performed;

the mere fact that a business is subject to state regulations does not by itself convert its actions into that of the State for purposes of the 14th amendment

Action must be traditionally AND exclusicely reserved/ performed by the state to be considered close nexus/ a public function

not state actor because governments have not traditionally AND exclusively operated tv channels (used the Jackson Test)

private mall is not state actor because not traditionally AND exclusively performed by government

encouraging to engage in action that would be unconstitutional if the state itself did it

1. Judicial enforcement of contracts (Shelly), property attachments (Lugar) and peremptory challenges (edmonson create state action

2. State regulation (Moose Lodge) and subsidies (Rendell-Baker) are relevant, but usually not independently sufficient to create state action

1. The government compels the private entitity to take action: or
2. The government acts jointly with private entity

1. State judges cannot enforce private agreements that would be unconstitutional if enforced by the state
(by the judge enforcing the covenant in this case they are entangling themselves with the action/ private agreement and therefore discriminating)
2. Defines entanglement broadly

1. Did the action result from the state created right?
2. In exercising right, was there assistant/ involvement of a state offical?

(1) Has the state created a classification?
• Yes, if there is (A) facial discrimination or (B) facial neutrality with both discriminatory intent and impact
(2) What level of scrutiny applies?
• Strict (race, alienage (citizenship), national origin); Intermediate (sex, legitimacy); or Rational Basis (all other classifications)
(3) Does the state action survive scrutiny?
• Strict (narrowly tailored to compelling interest); Intermediate (substantially related to important interest); Rational (rationally related to legitimate interest)

written into the law, on its face
(example: women can't serve on police or black people cannot be police officers)

(1) What is a “legitimate purpose”?
• Virtually anything, other than harming a politically unpopular group (Romer)
• Any conceivable purpose; actual purpose is irrelevant (Railroad Retirement Board)
(2) What is a “rational relationship”?
• Classifications that are somewhat over-/ under-inclusive are rational (Railway Express & Beazer), but those that are too over-/ under-inclusive are irrational (Moreno & Cleburne)

The law must be rationally related to a legitimate goverment interest
(any conceivable purpose works; almost any relationship will be rational)

Desire to harm a politically unpopular group cannot constitute a legitimate governmental interest

There cannot be a law that is targets towards a group of unequal treatment

The law must be uphled "if any state of facts reasonably may be conceived to justify its discrimination"

Means do not have to fit the end goal it just has to be rationally related

1. Is there a immutable trait that is unrelated to the ability to contribute to society ?
(race, sex, etc.)
2. Has your group experienced a history of discrimination?
3. Does the group experience present discrimination?

The Constitution, supported slavery by, inter alia, requiring return of fugitive slaves)

Fugitive Slave Act established, which provided legal mechanism for return of fugitive slaves

Missouri Compromise enacted which prohibited slavery north of 36°30’ except in Missouri

Prigg v. PA was decided and it struck PA law preventing use of force in returning fugitive slaves

Dred Scott v. Sandford was decided which invalidated Missouri Compromise and supported slavery

1861 was the start of the Civil War

Emancipation Proclamation (freed slaves in Confederate States)

End of Civil War and 13th amendment was enacted which intended to abolish slavery in all states

Black Codes introduced which effectively recreated conditions of slavery in southern states

14th amendment enacted which intended to overrule Dred Scoot and abolish Black Codes

15th Amendment enacted which intended to prohibit race-based abridgment of voting rights

i. Facial Classifications
ii. Purposeful and Effective Classifications

On the face of the law (within the law)
Four Types
(A) Disadvantaging Minorities -- Strict Scrutiny
(B) Disadvantaging All Races – Strict Scrutiny
(C) Separating Different Races – Strict Scrutiny
(D) Advantaging Minorities – Strict Scrutiny

Discriminatory purpose and disciminatory effect are BOTH required to trigger strict scrutiny

Discriminatory impact alone is not enough to bump it up to strict scrutiny if it is facially neutral

Strict scrutiny does not get triggered unless you have discriminatory purpose and effect

Plaintiff may use statistical evidence

Plaintiff must show that the challenged law was passed because of rather than in spite of, its effect
Plaintiff may use evidence of discriminatory by:
1. effect (even though this evidence is rarely independently enough)
2. history (ex suspicious timing) or
3. legislative records (ex racist comments)

1. What kind of classification is created?
a. Facial (e.g., set aside 16 spots for minorities).
2. What level of scrutiny applies?
a. Possibly Strict Scrutiny; (Arguments for strict scrutiny: 1. Conservatives argue for formal equality 2. Winning right now)
b. Possibly Intermediate; (Arguments against strict scrutiny, 1. Maybe they aren't so sus because a white majority is imposing it to remedy racism)
3. Does the program survive strict scrutiny?
a. What interests are compelling?
i. Possibly Promoting Diversity & Remedying One’s Own Past Discrimination
1. Remedying past discrimination by the specific govt unit involved in the case is
compelling 2. Remedying past discrimination in general is NOT compelling
b. What programs are narrowly tailored?
i. Possibly Non-Quota-Based Programs
1. Quotas are NOT narrowly tailored (Bakke)

The Gov't observed a facially neutral system producing racist results, so the gov't affirmatively acted to equalize the results

Only produces equal outcomes when people start from the same place; works to produce fair outcomes if everyone starts out on an equal playing field

Takes action to correct for the different starting points and get equal outcomes; system is trying to affirmatively correct since not everyone has not started out as equal because of race

a. Applied strict scrutiny to local program (failed)
b. Race-based facial classification
c. An amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota (failed to prsent passed discrimination in Richmond itself)
i. Not a compelling interest
d. If a race neutral way is available, then a race quota is not
permissible

a. Applied strict scrutiny to federal program.
b. Overruled Metro Broadcasting
c. Strict in theory, fatal in fact = court in Adarand says that’s
not true

STRICT SCRUTINY
Strict scrutiny applies to local, state, and federal race-based affirmative action programs

a. Facts
i. Policy is flexible and individualized
ii. Using race as a “plus” factors is okay
b. Level of Scrutiny = strict scrutiny
i. Narrowly tailored to a compelling interest
c. Michigan’s Interests
i. diversity is compelling
d. Program’s Relation to Michigan’s Interests
i. Policy is narrowly tailored & upheld
1. Does not use a quota system

a. Facts
i. Policy awards minorities 20 points
b. Level of Scrutiny = strict scrutiny
c. Michigan’s Interests
i. Diversity is compelling
d. Program’s relation to Michigan’s interests
i. Policy is not narrowly tailored
ii. Policy is struck

1. Remedying one’s own past discrimination, but not remedying societal discrimination (Croson);
2. Achieving diversity (Grutter & Gratz).

1. Using race as one factor (Grutter), but not as the source of fixed additional points (Gratz);
2. Not quotas or set-asides (Bakke & Croson).

While some deference is due in assessing whether diversity is compelling, none is due in assessing whether program is narrowly tailored (court must be satisfied that no workable, race-neutral alternative would suffice)

o Laws that evince “prejudice against discrete and insular minorities…may call for…more searching judicial inquiry” (Carolene Products: 1938)
“Discreate” is this a minority that has a visible trait
“Insular” a population that might live separately

Rational Basis Review

Possible Heightened Scrutiny?
Reed (1971)- Court applied rational basis review, but invalidated sex-based preference
Frontiero (1973)- 4 Justices applied strict scrutiny

Intermediate Scrutiny
Craig 1976- Court applied intermediate scrutiny (substantial relation to important interest)
US v. Virginia 1996- Court applied skeptical scrutiny (exceedingly persuasive justification)

a. Reed (1971) – Men are preferred as executors
b. Frontiero (1973) – Only men automatically receive benefits
for their spouses
c. Craig (1976) – Only women can buy beer at 18
i. While there are important interests here, they are not substantially related according to the Court
d. US v. VA (1996) – Only men can attend VMI

a. Feeney (1979) – Plaintiffs failed to prove that policy favoring veterans created sex-based classification
i. Showed effect not purpose (both are required)
b. Geduldig (1974) – Plaintiffs failed to prove that policy disfavoring pregnant persons created sex-based classification
i. Pregnancy discrimination is not sex discrimination under Geduldig and that is still good law.
ii. But also statutory law prevents discrimination against pregnant people.

1. Remedying past discrimination
a. Califano (upholding sex-based social security provision) i. Facial classification benefitting women
ii. Classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.
2. Accounting for biological differences
a. Nguyen (upholding sex-based citizenship provision)
i. If the court perceives a law as resting on stereotypes, the court is gonna say that is not an important interest.
ii. If the court thinks it is genuine biological differences = court is likely to say important interest

1. Codifying existing sex stereotypes
a. Orr (striking sex-based alimony law)
i. Important interests but not substantially related to
achieving them
1. Fit between the means and ends was the problem in this case
b. Hogan (striking sex-based admissions policy)
c. Michael M. (upholding sex-based rape law)
d. Rostker (upholding sex-based draft registration)

• Roe v. Wade (1973)—applying strict scrutiny
• Planned Parenthood v. Casey (1992) – applying a viability framework that is weaker than strict scrutiny: pre-viability, the state may not impose an “undue burden” on a woman’s choice; post-viability, the state may ban abortion, so long as it provides exceptions where necessary to protect the women’s life and health
o But cases above are overruled in Dobbs v. Jackson
• Whole Woman’s Health v. Hellerstedt (2016)—reaffirmed the Roe/Casey framework
• Dobbs v. Jackson (2022)—overruled the Roe/Casey framework

• Abortion does not fit framework of Roe/Casey
• Roe and Casey are overruled. The Constitution does not protect a right to abortion b/c it is
1. not in the text,
2. not “deeply rooted in history and tradition,” and
3. not part of a “broader entrenched right”
• Stare decisis does not require respect for Roe/Casey, because five factors weight against retaining them:
1. The nature of their error
2. The quality of their reasoning
3. The “workability” of the rules they imposed on the country,
4. Their disruptive effect on other areas of the law, and
5. The absence of concrete reliance

The Equal Protection Clause
"no person shall be denied equal protection of the laws"

strict scrutiny

i. Can’t use citizenship to keep people out of welfare benefit programs
ii. Citizenship classifications get strict scrutiny

1. Promotes democracy (Foley v. Connelie)
a. Only rational basis review applies when non-citizens are excluded from formulation, execution, or review of policy
2. Originates with Congress or the President
a. (only rational basis review applies);
3. Affects undocumented non-citizens
a. Some lower level of scrutiny arguably applies in Plyler

Foley (citizen only police officer case)
i. Formulation, execution or review of broad public policy should be saved for citizens
1. Only citizens should participate in self governance
ii. Police officers are clothed with authority to exercise almost infinite power

1. Undocumented immigrants CAN invoke Equal Protection Clause
2. Undocumented immigrants are NOT a suspect class
3. Children cannot be discriminated against for their parent's choice to illegally immigrate

Classifications targeting non-marital children receive intermediate scrutiny
a. Laws harming all non-marital children = court applies intermediate scrutiny and generally invalidates
b. Laws harming some non-marital children = court applies intermediate scrutiny and may invalidate, but may uphold

Intermediate Scrutiny
a. Targeting all non-marital children = court will be hostile and likley invalidate
b. Targeting some non-marital children = could go either way

Age Classifications
• Stay at rational basis
Disability Classifications
• Applied rational basis “with bite
• But Court declares it’s just rational basis
Wealth Classifications
• Just rational basis review
Sexual Orientation Classifications
• Rational basis w/ “bite”

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…”

• Meant to prevent government from requiring someone to get a license before publishing (government tried to censor speech)
• Also, to prevent the government from punishing people for government criticism

• Promoting self-governance
• Discovering truth
• Promoting/ Advancing autonomy (self expression)
• Fostering tolerance

strict scrutiny

Stifle or encourage speech based on its message (viewpoint or subject matter)

Example for viewpoint: No one can voice a pro-life message
Example for Subject matter: No one can talk about abortion

intermediate scrutiny

Regulates speech based on its time, place, or manner

No gathering in the parks after 10 pm with sound levels over 100 decibels

Government subsidies may be content-based, but they may not disfavor constitutionally protected viewpoints

Finley (1998) – Upheld NEA’s grant-review process because, although it was content-based, it did not disfavor any particular viewpoint.
1. Group of artists that didn’t get NEA funding
2. Content-based but constitutional because it is not purposely disfavoring certain viewpoints.

The Free Speech Clause restricts government regulation of private speech, but does not restrict government speech

Walker v. Thompson (2015)
1. Government can choose not to approve a license plate design since license plates are
government speech

1. Has the state “abridged” speech?
i) If not, abandon analysis; if so, ask:
2. Is the abridgement “vague”, “overbroad” or a “prior restraint”
i) If so, probably invalidate, if not ask:
3. Is the abridgment “content-based’?
i) If so, strict scrutiny; if not, intermediate

1. Impose Criminal Penalties—Brandenburg v. OH
2. Impose Prior Restraints—NY Times v. US
3. Allow Civil Liability—Snyder v. Phelps (we don’t cover this in this class) (just be aware that statute that allow civil liability for speech (libel/slander examples) those are abridgment of speech that trigger 1st amendment analysis)
4. Bar Compensation—Nat’l Treasury E’ees Union
5. Compel Speech—WV v. Barnette, Fair, NIFLA
6. Condition Benefits on Not Speaking—Speiser, Velasquez
o Government cannot tie benefits to rights; cannot give benefits for forgoing their rights or cannot deny benefits for exercising their rights
7. Discourage Speech

men of common intelligence must necessarily guess at its meaning

it regulates substantially more speech than it is constitutionally permitted to regulate

An administrative system or judicial order that prevents speech from occurring
(these laws are ones that cut off/ punish speech BEFORE it occurs)
Ex: you must apply to the city for a permit before you can show a movie

Court orders restraining speech are rarely valid, but may be justified to protect:
a. National Security (but see NY Times v. US., prior restraint not justified); or
b. Right to Fair Trial (but see NE Press Assn v. Stuart, prior restraint not justified)

Licensing Systems are upheld only if they:
1. Promote important interests;
2. Provide clear non-discretionary criteria;
3. Provide procedural safeguards—e.g., promote grant/denial; opportunity for hearing; prompt judicial review and determination

Constitutional Rights
1. Can't give benefits that are willing to forego them
2. Can't deny benefits to people exercising their rights

Government conditioned a benefit on speech
a. property tax exemptions were based on agreement to an oath = unconstitutional

Yes
1. Government can't control the speech you engage in when you're not using its money
Ex: If you take out funds you always have to say what we want you to say

1. This is just the government setting up a program, defining the scope of the program and the funding so that pro-choice/abortion speech isn’t subsidized
a. When it’s not using government funds, it can say whatever it wants

1. Content-based laws generally receive strict scrutiny
2. NB- There are special rules for government funding

1. Includes incitement, fighting words, and obscenity.
2. Content-based laws receive rational basis review when they regulate an entire category of unprotected speech;
3. Content-based laws may receive strict scrutiny when they regulate part of a category of unprotected speech.

Whoever, when the US is at war, shall willfully
1. make false statements intended to interfere with its success;
2. attempt to cause disloyalty in the military;
3. obstruct recruiting or enlistment efforts;
4. make disloyal statements about the form of the government, Constitution, military, or flag;
5. advocate curtailment of the production of goods necessary for
the war; or
6. advocate any of the above acts shall be punished.

Clear and Present Danger Test
Reasonableness Test
Risk Formula Approach
Brandenburg Test

Used from 1919-1925; Speech may be regulated if, in context, it creates a clear and present danger of inciting illegal activity

Used from 1925-1951; Speech may be regulated if the regulation is reasonable

Holds that Statutes may only be declared unconstitutional where they are abitrary or unreasonable attempts to exercise authority vested in the State in the publice interest

Used from 1951-1969; Speech may be regulated if the gravity of its danger, discounted by its improbability, justifies regulations

Used from 1969- Present; Speech may be regulated only if it is intended and likley to incite imminent illegal activity
Think as Elements 1. Intended 2. likely and 3. Imminent
This is the test we apply today

Chaplinsky (1942) established this rule
Fighting words = words inflicting injury or tending to incite violent retaliation are
1. Not protected
2. Bans recieve rational basis review

1. Narrowed its definition of fighting words
2. Struck broad bans as vauge or overbroad; and
3. Struck narrow bans as discriminating based on viewpoint

Hicklin Test Used
1. Corrupts minds open to "immoral influences"

Work as a Whole Test Used
1. Does the work, as a whole, have a libidinous (sexual) effect?

Roth Test Used
1. Deals with sex in a manner "appealing to prurient interest?
2. Obscenity is anything dealing with sex in a manner "appealing to prurient (lustful) interest
i. obscene speech is not protected by the constitution

Miller Test Used
1. Appeals to prurient interest
i. based on community standards
ii. applied by jury
iii. differs across nation
2. Depicts sexual conduct in patently offensive way
3. Lacks serious literary, artistic, political, or scientific value
i. based on national standards

1. Such utterances are no essential part of any exposition of ideas and are such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality
2. Content so offensive to contemporary moral standards

1. Medium by medium approach introduced
a. protected in some media but not others
2. Context is important
3. More regulation is warranted with radio
a. rational basis review

Indecent speech on the telephone is protected
a. ban on this would get strict scrutiny

1. Medium by medium
2. In broadcast media (radio and network tv)
a. receives minimal protection due to danger of exposing unwilling adults and minors
b. rational basis review
3. On telephone, internet, cable tv
a. receives greated protection due to greater ease of shielding unwilling adults and minors
b. strict scrutiny
4. In public, profanity and indecency are highly protected (ex; courthouse)
5. Cable TV, phone, internet (in the 90's)
a. profanity and indecency is highly protected since it's easy to shield them
b. unlikely to come across profanity/ obscenity accidentally
6. Broadcast media
a. different
b. invasive since it can come through wherever you are

Conduct intended to convey a specific message that's likely to be understood by its audience
a. is the message I'm upset? I'm upset with the governemtn? I'm upset with the government because of Cambodia conflict?
i. how specific is required ? = Not clear

who is doing it?
who is the viewer?
when is it happening (time, place, manner)?

the context
a. it's winter with no heat, burning books = probably not expressive conduct
b. burning a book at a political rally to make a statement = probably expressive

a. Homless = probably not expressive
b. participating ironically in a demonstration to call attention to homelessness = probably expressive

it is protected
a. governemtn can regulate, criminalize and punish
b. could be subject to other laws like fire codes, park security, regulations, etc

1. When a regulation is unrelated to suppressing expression, it must survive a form of intermediate scrutiny (O'Brien Test)
2. When it's related to suppressing expression, it must survive strict scrutiny (Johnson)

1. Within the government’s power
2. Furthering important substantial interest
3. Interest is not related to suppressing speech
4. Narrowly tailored to doing that

Ask:
1. Does this further substantial governemtn interests
2. No greater than essential to the furtherance of the interest

Protected
1. Example: public streets and public parks
2. strict scrutiny

1. Example: Public schools open property for use by student or community groups
2. “government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose”
3. Gets strict scrutiny

1. Example: Public schools open property for use by certain groups to discuss certain subjects
2. Opening property “limited to use by certain groups or dedicated solely to the discussion of certain subjects.”
a. A governmental entity may impose restrictions on speech that are reasonable and viewpoint-neutral.

Example: Shopping Mall

Example: schools, prisons, military

1. Content-based restrictions must survive strict scrutiny (must be narrowly tailored to compelling interests);
2. Content-neutral restrictions must be “narrowly tailored” to “significant” interests and leave open “ample alternative channels for communication,” but need not be the least restrictive means available.

reasonable restrictions on the time, place or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.
(McCullen v. Coakley buffer zone for abortion places)

1. Restrictions must be reasonable and viewpoint neutral.
2. (If nonpublic forums – properties the government has closed to speech – remain a distinct category, this is the rule for them as well.

a. If a student group wanted registered student organization benefits (funding, right to publicize events, use the schools name and logo, etc), then its membership and leadership positions had to be open to all people regardless of belief.
i. Derived from nondiscrimination policy
ii. CLS was discriminating so their application was denied and their exception to the policy denied.

1. Areas the government closed to all speech activities
2. Military bases, areas outside of prisons and jails
3. Upheld as long as they are reasonable and content neutral

1. Students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
2. Schools can regulate student speech where it’s “necessary to avoid material and substantial interference with schoolwork or discipline,” or where it will “impinge upon the rights of other students.”
3. Since Tinker, the Court has been less protective of speech in schools.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

Gov't and religion should be kept separate so they gov't doesn't corrupt religion

Gov't and religion should be kept separate so religion does't corrupt the government

Keep gov't and religion separate so multiple religions can thrive and prevent tyranny

Occupy a place analogous to that of a Supreme Being and are sincere (Seeger & Ballard), even if they's not accepted by all members of a given religion

a. His belief was found to be sincere, honest, and made in good faith
b. A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.

a. Sincere beliefs are protected regardless of scientific provability or whether others would find the beliefs incredible or preposterous.
b. Inquiring is too much infringement
i. Should not go to jury

absolute

qualified

1. Laws that incidentally burden the free exercise of religion receive strict scrutiny
a. allowed religious exemptions for general laws
b. she was denied unemployment when she was unable to find work that would let her not work on the sabbath ( a day of religious for jewish people)

1. Laws that are neutral and generally applicable receive only rational basis review
2. When a law looks like it is targeting religion because it is religion, that's when it is a problem
3. Religious adherence cannot cite religion as a reason for getting out of a law that everyone has to follow unless the law is not neutral or not generally applicable

Laws that are either not neutral or not generally applicable receive strict scrutiny

Held, w/o disturbing Smith, that the Free Exercise Clause incorporates a ministerial exception

Laws that are neutral and generally applicable receive only rational basis review (Smith) & laws that are either not neutral or not generally applicable receive strict scrutiny (Hialeah)

A. When a state refuses to fund religion = charged with violating free exercise
B. Giving funding to religion = charged with violating establishment clause

1. Washington, to avoid establishing religion in violation of its state constitution, said merit scholarships could not be used for degrees in devotional theology.
2. The Court upheld the state’s policy, saying it did not violate the Federal Constitution’s Free Exercise Clause.

1. State of Missouri, in an effort to avoid supporting religion in violation of its state constitution, had a policy of categorically denying grants to churches.
2. No compelling interest in creating a greater separation of church and state than the federal constitution’s establishment clause
3. The Court struck the policy, saying it violated the Federal Constitution’s Free Exercise Clause.

1. Strict Separation (Secularism)
2. Neutrality
3. Accommodation (Religious Pluralism)

a. Government must not involve itself with religion in any way.
i. Govt has to be secular bc any support then choice citizens have is be religious or be excluded
1. State endorsement (in god we trust on coins, under god in pledge, etc)
ii. We don’t send the fire dept/police to churches
iii. Wall between church and state

Government must not "endorse" one religion over others or religion over non-religion
i. anti-discrimination
ii. moderate interpretation

Rule = Govt displays of religious symbols violate the establishment clause when they appear to endorse religion over secularism.
1. Displays solely of religious symbols will likely be unconstitutional.
2. Add Santa to all displays

Government must not "coerce" religion (but should accommodate religion)
i. almost nothing would violate the establishment clause

If the law facially discriminates among religions (favoring one religion or sect over another), apply strict scrutiny (Larson).
(ex: law that said religions that commonly display crosses get favorable tax treatment that religions that display stars get unfavorable tax treatment = that is favoring one religion/sect over another = apply strict scrutiny and it will fail)

If the law is facially neutral with respect to religion, apply the Lemon test, which requires
(1) secular purpose;
(2) neutral effect; and
(3) no fostering of excessive state entanglement with religion.

*Lemon is no longer used to analyze religious symbols on government property (American Legion).

i. Private religious speech is protected
ii. Access to Public School Facilities
1. Schools must allow religious groups equal access to public school facilities
iii. Receipt of Public School Funds
1. Schools must allow religious groups equal access to public school funds
iv. Speech in Public Schools
1. Schools cannot encourage/facilitate religious speech at public school events
2. Remember, although government speech is not limited by the Free Speech Clause, it is limited by the Establishment Clause.

1. Release time sometimes okay;
2. Prayer recited by each class each day not okay, even though non-denominational and students could opt out;
3. A jewish prayer at graduation not okay b/c coercive, even though students could opt out;
4. Student-delivered prayer at football games not okay b/c in context was gov’t speech endorsing religion

Opening town board meetings with prayer okay b/c consisten with historical practice/ understanding
i. Legislature opened with a prayer
1. Reminds people the gravity of their duty
ii. Historically accepted by the framer’s then it’s okay
iii. If the prayers were denigrating other religions or non believers, preaching conversation = that’s not allowed
1. That didn’t happen here
iv. No coercion here... maybe subtle pressure but that’s not enough

Latin cross placed in 1925 as WWI memorial okay
a. Lemon doesn’t apply to religious monuments
b. Monuments are old
c. Monuments get multiple purposes over time
d. Message of monument may change over time
e. Once the monument has been there a long time, removing it might not appear neutral to religion