kkcls499

3. Do constitutional provisions other than Establishment Clause bar court's ordering father not to subject children to indoctrination, prayer, bible study, or church attendance that causes them significant emotional distress or rejection of mother or Jewish self-identity?

Activity = fundamental right

when implicit in the concept of ordered liberty in light of:

acceptance

historical

current

function (see Whalen, 500)

nondisclosure/personal mtrs

important decisions

Gov't deprivation of liberty/property w/o DP: . . .

4) Harmful gov't action not rationally related to legit purp

5) Subst burden on fund rt not nec to serve a compelling gov't int

Facial
invalidity
V a g u e n e s s Over-breadth

generally where expression affected

Bases D u e p r o c e s s |
| F i r s t A m e n d m e n t

Standard Persons of common intelligence must guess at statute's meaning Stat reaches protected expression

Limits Person lacks standing if person's conduct falls squarely within statute's "hard core" Over-breadth must be substantial

Facial
invalidity
V a g u e n e s s Over-breadth

generally where expression affected

Bases D u e p r o c e s s |
| F i r s t A m e n d m e n t

Standard Persons of common intelligence must guess at statute's meaning Stat reaches protected expression

Limits Person lacks standing if person's conduct falls squarely within statute's "hard core" Over-breadth must be substantial

Content-based restriction of fully-protected expression
permissible if government shows the expression is:

directed to and likely to produce

imminent

(serious) lawless action

Prior restraint:

Administrative action

(like license or permit system)

or injunctive relief

that keeps expression from occurring.

Standards compared

Brandenburg standard Pentagon Papers std?

Expression is directed to & likely to produce Expression will surely result in direct

imminent immediate

(serious) lawless action irreparable damage to nation or its people

Kendall v. Kendall,

687 N.E.2d 1228 (Mass. 1997):

the decree did not violate Free Exercise or parent's fundamental right to determine children's religious upbringing because the restriction was necessary to serve the compelling interest of protecting the children's welfare.

Kendall: the decree did not violate Estab Clause per Lemon:

its purpose and primary effect were protecting kids' welfare
it does not foster excessive entanglement because any judicial inquiry will focus only on harm to the children, not the merits of religious teachings.

Amend. XIV § 1

[N]or shall any State . . . deny to any person . . . the equal protection of the laws.

Amend. XIV § 1

[N]or shall any [government] . . . deny to any person . . . the equal protection of the laws.

Amend. XIV § 1

[N]or shall any [government] . . . deny to any person . . . the equal protection of the laws [or the protection of equal laws].

Inclusiveness--extent to which Classification : Purpose

Inclusiveness--extent C:P

Assume P = prevent distracting signs

Kd/incl Signs forbidden

Perfect

Non-

Under-

Over-

Over-and -under

Inclusiveness--extent C:P

Assume P = prevent distracting signs

Kd/incl Signs forbidden

Perfect All signs visible from street

Non-

Under-

Over-

Over-and -under

Inclusiveness--extent C:P

Inclusiveness--extent C:P

Assume P = prevent distracting signs

Kd/incl Signs forbidden

Perfect All signs visible from street

Non- All signs not visible from street

Under- Signs on vehs

Over-

Over-and -under

Inclusiveness--extent C:P

1. When is equal protection violated by government action that neither employs a (near-)suspect classification nor restricts a fundamental right?

Equal Protection standards

Standard Normal

Burden

Relationship

Kind/int

Equal Protection standards

Standard Normal

Burden attacker

Relationship

Kind/int

Equal Protection standards

Standard Normal

Burden attacker

Relationship not rational

Kind/int

Equal Protection standards

Standard Normal

Burden attacker

Relationship not rational

Kind/int legitimate

2. When is equal protection violated by government action that employs a suspect classification?

Equal Protection standards

Standard Normal Susp classif

Burden attacker

Relationship not rational

Kind/int legitimate

Equal Protection standards

Standard Normal Susp classif

Burden attacker government

Relationship not rational

Kind/int legitimate

Equal Protection standards

Standard Normal Susp classif

Burden attacker government

Relationship not rational necessary

Kind/int legitimate

Equal Protection standards

Standard Normal Susp classif

Burden attacker government

Relationship not rational necessary

Kind of int legitimate compelling

CAROLENE footnote 4, p. 18:

Discrim against discrete and insular minority may require more scrutiny b/c it tends seriously to curtail normal political processes.

P
H
Y
S
discrete P
O
L

insular

minority

P
H
Y
S
discrete (distinct) P
O
L

insular

minority

P
H
Y
S
discrete P
O
L

insular

minority

P
H
Y
S
discrete P
O
L

insular (isolated)

minority

P
H
Y
S
discrete P
O
L

insular

minority

P
H
Y
S
discrete P
O
L

insular

minority

P
H
Y
S
discrete P
O
L

insular

minority

Palmore (1984), 1182:

"[The] effects of racial prejudice, however real, cannot justify a racial classification . . . ."

Cooper (1958), 1200 (tape 236:5)

Warren

Black Frankfurter

Douglas Burton

Clark Harlan

Brennan Whittaker

Richard Butler Thurgood Marshall

Little Rock, AR N.Y., N.Y.

3. When is separate not equal?

Facial invalidity	V a g u e n e s s		Over-breadth
	generally	where expression affected
Bases	D u e p r o c e s s \| \| F i r s t A m e n d m e n t
Standard	Persons of common intelligence must guess at statute's meaning		Stat reaches protected expression
Limits	Person lacks standing if person's conduct falls squarely within statute's "hard core"		Over-breadth must be substantial

Brandenburg standard	Pentagon Papers std?
Expression is directed to & likely to produce	Expression will surely result in direct
imminent	immediate
(serious) lawless action	irreparable damage to nation or its people

Perfect	All signs visible from street
Non-
Under-
Over-
Over-and -under

Standard	Normal
Burden	attacker
Relationship
Kind/int

Standard	Normal	Susp classif
Burden	attacker
Relationship	not rational
Kind/int	legitimate