Equal Protection
What classifications are determined to have strict scrutiny?
race, national origin, alienage
What is the three-step framework?
1. What is the nature of the right?
2. Was the right substantially infringed upon?
3. Did the government action meet the appropriate level of scrutiny?
What is the definition of procedural due process?
The government must follow a procedure before restricting life, liberty, or property
What is the three-step framework?
1. Is free speech affected?
2. What government rules regulate free speech?
3. Did the government meet the designated level of scrutiny?
What is the framework?
1. Is free religion affected?
2. What government rules regulate free religion?
3. Does the government action meet the designated level of scrutiny?
What is the definition of Equal Protection?
When the government draws a distinction between groups of people
Name the three types of fundamental rights
Privacy, personhood, and procreation
What is the three-step framework for procedural due process?
1. Was there a deprivation?
2. Did that deprivation have to do with life, liberty, or property?
3. Did the government follow procedures?
What are the four government locations?
1. Public Forum
2. Designated Public Forum
3. Limited Public Forum
4. Non-Public Forum
What is the Establishment Clause
The Establishment Clause prohibits government action that supports or endorses the establishment of religion.
What is the Equal Protection Framework?
1. Is there a classification?
2. What is the appropriate level of scrutiny?
3. Did the government action meet that level of scrutiny?
What is the only kind of non-fundamental right the Supreme Court has determined to merit a heightened level of scrutiny?
Punitive Damages
What are the most common safeguards the government must prove someone to avoid violating procedural due process?
notice and a hearing
What is the O'Brien Test and name the factors
The O'Brien Test is used to determine the constitutionality of content-neutral laws impacting conduct that communicates.
1. Is it within the scope of the Constitution?
2. Does it further a substantial government interest?
3. Is the government interest something other than the suppression of speech?
4. Is it narrowly tailored?
What do we look at to determine if there is a substantial burden on religion?
1. Gov't requires conduct that a person’s religion prohibits
2. Gov't prohibits conduct that a person’s religion requires
3. Gov't requires or prohibits conduct that makes a person’s religious obligations difficult.
What four factors will a court look at to determine if a classification deserves a heightened level of scrutiny?
1. immutable characteristics?
2. ability to protect oneself in the political process?
3. history of discrimination?
4. existence of prejudice or stereotypes
What are the levels of scrutiny in a SDP analysis?
fundamental = strict scrutiny
non-fundamental = rational basis
What do we look at to determine if there was a deprivation?
1. Intentional act by government
2. reckless negligence by government
3. Deliberate indifference by government
What are the two kinds of prior restraints?
1. court order against Pre-trial publicity
2. Licensing regimes
What is the Lemon Test?
The Lemon test requires
1. the law to have a secular purpose
2. the primary and principal effect of that law must not be to advance or inhibit religion
3. the law may not foster excessive government entanglement with religion.
What will the Court look for to analyze a law through rational basis with bite?
How does the court guide us to analyze the second step of the three-step framework?
They have given very little guidance, but we are told to look at directness and substantiability
What is the Mathews Test?
1. the private interests of the individual
2. public interest, including administrative and fiscal concerns
3. the risk of erroneous deprivation of an interest through current procedures and the probable value of additional or substitute procedures.
What is the Brandenberg Test?
This is the test to determine illiciting illegal conduct as unprotected speech
1. Intent to incite illegal conduct
2. Imminent Threat
3. whether it is likely to produce imminent illegal conduct
In 2022, in place of Lemon test, SCOTUS’s analysis of Establishment Clause claims changed. What are the new factors?
1. Historical practices/understanding
2. Coercing religious exercise
3. Context/effect/perception of religious symbol