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Legal Tests

Legal Tests. Challenges to any law. Facial challenge- challenging the law if it is too broad (a bad law) Application challenge- law is not too broad- just challenging the application of the law to my circumstances. Justiciability. Def’n: can a case be decided? Non-Justiciable- reasons:

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Legal Tests

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  1. Legal Tests

  2. Challenges to any law • Facial challenge- challenging the law if it is too broad (a bad law) • Application challenge- law is not too broad- just challenging the application of the law to my circumstances

  3. Justiciability • Def’n: can a case be decided? • Non-Justiciable- reasons: • Advisory opinion- has to be a passed law in question • Collusive suits- no real difference between the two sides • Mootness-doesn’t matter- the reason for the case is already taken care of

  4. Non- Justiciable 4) Ripeness- case is not ready to be heard, have to wait for the harm to occur 5) Political Question- Supreme Court sends it to the Legislative Branch or Executive Branch 6) Standing- the person who is harmed must file the suit

  5. Standing • Do you have the status to bring the case to trial? • Frothingham v Mellon (1923)- cannot use taxpayer status to complain about government programs • Flast v Cohen(1968)- if you have a personal stake in something (a tax or spending bill)- but only if the tax or spending bill is prohibited by the Constitution

  6. Religion test • Reynolds v US (1879) and Cartwell v Connecticut (1940)- as long as gov’t has “Valid Secular Reason” they can override religious freedom • Sherbert v Yoder (1972)- if law restricts freedom of religion, there must be a “compelling state interest” or the law is unconstitutional

  7. Religion test • Employment division, Oregon v Smith (1990)- use of peyote- overturns Yoder and goes back to Reynolds/Cantwell • CURRRENT TEST = gov’t needs to show that there is a valid reason to limit religion BUT they cannot go after a specific religion

  8. Religious Establishment Clause • Schemp Test- a) secular purpose and b) secular effect = doesn’t hurt or help religion • Lemon Test- a) secular purpose, b) secular effect and c) no excessive gov’t interference. A law must pass all 3 of Lemon to be constitutional. • *Lemon is sometimes used and sometimes not!

  9. Endorsement Test • Does a law endorse a particular religion? Ie. displays by a gov’t body (think of trees in a town square or airport) Look at the facts- does the size of one of the displays seem bigger or smaller compared to others nearby?

  10. Coercion Test • Usually used for school events- usually high school or grade school • Mostly looking at peer pressure to do something- everyone else is praying so why aren’t you? Or the Pledge of Allegiance questions!!

  11. Neutrality Test • Gov’t programs that may or may not benefit religion when gov’t allows property and other resources to be rented out by groups. • If they allow secular groups, they have to allow religious groups!

  12. Free Speech • Categories of unprotected speech: • Threats • Fighting words- produce a fight • Obscenity • Incitement of illegal action- Brandenburg

  13. Advocacy of illegal action • Clear and Present Danger test: 1) content of the expression, 2) consequences of the words, 3) when the consequences may occur • Moved to the Brandenburg Test

  14. Brandenburg Test • Speech must incite action • Must incite imminent action • Must incite imminent illegal action • Must incite imminent illegal action that has the likelihood of occurring

  15. Cohen Test • Current test for FIGHTING WORDS • Speech must be directed at a specific person • Speech has to be likely to produce a fight • How would the ordinary person react

  16. Never protected under 1st Am. • Political speech is almost always protected unless: • There is property damage • If there is personal injury • If there is encroachment on the rights of others • If there is trespassing

  17. Expressive Conduct • US v O’Brien (1968) • 1) is there an important/legitimate gov’t interest in controlling the conduct? • Is this something that is within the gov’t ‘s power to control? • Can’t Suppress Speech! • Is this the Least Restrictive Means of gov’t interference? (Did the gov’t go too far?)

  18. Obscenity • Miller v California • Average person applying contemporary community standards finds the work, taken as a whole, appeals to the prurient (deviant) interest. • Work depicts or describes specific sexual conduct • Exceptions must be given for literary, artistic, political or scientific value.

  19. Sex • Lawrence v Texas (2003) there is complete privacy when it comes to sex

  20. Equality • Strict Scrutiny test- if a law discriminates and deals with race • Intermediate/Exacting Scrutiny test- also called Strict Rationality- if a law discriminates and deals with gender • Rational Basis- for general discrimination- laws challenged under this area are almost always found to be Constitutional

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