Iijima -- Con Law Liberties

1996 - KEY

  1. QUESTION I


    1. State Action? Yes


      1. Witchell's Nuisance Ordinance


      2. State district court decision holding violation of ordinance


    2. Violation of Free Exercise Clause?


      1. Challenged would be under 14-A, as "liberty" interest, incorporating 1-A rights. Involves actions by city (ordinance) and state (court action).


      2. Interference w/ religious belief or practice?


        1. "Religion"?


          1. Christmas is religious holiday


          2. Although conduct not required by religion, not determinative.


        2. Sincere belief that display required? Sentiments behind display sincere, but probably no sincere belief that religious views require practice.


      3. Assuming interference w/ religious practice, violation of FE?


        1. Possible standards


          1. Under Sherbert use strict scrutiny


          2. Under Smith, use rational basis if regulation is neutral regulation of general applicability.


          3. But RFRA restored use of strict scrutiny even where regulation is neutral regulation of general applicability.


        2. Here, nuisance ordinance is neutral (i.e., no intent to discriminate against religious practice) and generally applicable to anyone annoying neighbors.


        3. If RFRA constitutional


          1. Does Witchell have compelling interest? Here, interest in maintaining peace, including: neighbors' enjoyment of property, lessening of traffic congestion, avoiding accidents. Probably compelling interests.


          2. Is nuisance ordinance necessary (narrowly tailored) to achieve the compelling interest? Language and potential coverage overbroad, trfr arguable that not necessary. But as applied to Jones' via court order, narrowly tailored only to prevent troublesome aspects of display.


    3. Violation of Free Speech Clause?


      1. "Speech"?


        1. It's a display, not words


        2. But may be said to communicate message of holiday greetings, etc.


      2. Procedural Issues?


        1. Vague?


          1. Ordinance


          2. Court order


        1. Overbroad?


          1. Ordinance overbroad


          2. Full invalidation? Possibly


            1. Pro full invalidation


              1. Substantial overbreadth


              2. Persons being regulated probably engaging in unprotected conduct, at least in part.


            2. But regulating conduct, rather than speech


        2. Prior Restraint?


          1. Court order


      1. Substantive Issues?


        1. Content neutral regulations - time/place/manner


          1. Reasonable?


          2. Leaves alternative? Yes, able to have display, but toned down.


          3. On other hand, basis of order is requiring that display not attract visitors, i.e., not communicate.


        2. Privacy issues


          1. Display on private property, trfr city generally has less ability to regulate


          1. On the other hand, intrusive as to neighbors.


          2. While visitors volunarily view display, neighbors do not have choice.


  1. QUESTION II


    1. State Action? Yes, order by state court.


    2. Violation of 14-A SDP?


      1. Has Clark been deprived of fundamental right? Probably not.


        1. Privacy?


        2. Right not to bear children?


      2. Trfr, analyze under RB test.


    3. Violation of 14-A EP?


      1. Mothers given rights over zygote, embryo, fetus, as opposed to fathers. Gender discrimination?


        1. Facially discriminatory?


        2. Discriminatory impact?


        3. Intentional discrimination?


      2. If gender discrimination, use intermediate scrutiny.


        1. Important state interest? Protecting women's right to bear children. This has been held to be a fundamental right.


        1. Decision substantially related to interest? Yes, otherwise Lois would be deprived of right.