Constitutional Law II Exam Approach Outline

Equal Protection
Threshold Issue: Does the Equal Protection Clause apply?
[1] Is there government action?
[a] Is it federal government action?
[i] Apply Fifth Amendment: The doctrine of equal protection is read into the Fifth Amendment’s
Due Process Clause and is implicated when the federal government takes action that treats a
class of people unequally.
[b] Is it private action?
[i] If yes, is it specific to racial discrimination [“badges and incidences of slavery”]?
[1] Apply Thirteenth Amendment § 2: § 1: Neither slavery nor involuntary servitude, except
as a punishment for crime whereof the party shall have been duly convicted, shall exist
within the United States, or any place subject to their jurisdiction. § 2: Congress shall
have power to enforce this article by appropriate legislation.
[2] Apply Fourteenth Amendment § 5: Does not regulate private action; The Fourteenth
Amendment’s Equal Protection Clause is implicated when a state government entity
takes action that treats a class of people unequally.
[i] Exception to application of Fourteenth Amendment to private action: Public
function [When states may regulate private action based on race.]
[ii] Limit to public function exception [see distinctions]
[iii] Distinction between public function and non-public function holdings
1. Public function is found when there’s a nexus between private action and
state action such that the state is:
a. Responsible for the specific conduct of which P complains
b. Responsible for exercising a coercive power or is
c. Responsible for providing significant encouragement [covert or overt] to the
private party
2. When private action benefits the public
[iv] Exception: State action in enforcement of private agreements
[v] Limit to state action in enforcement of private agreements [see distinctions]
[vi] Distinction between state action in private agreements and no state action in
private agreement holdings
1. Need “significant [or substantial] involvement” for a court to hold that a
state was involved in a private action.
2. Need state’s authorization and encouragement in enacting a discriminatory
statute, not just state’s mere acquiescence in private action
[ii] Criticism of state action implied in private action
[1] Does not apply to large private entities that have control over large numbers of people.
[a] Counterargument: Private entities are subject to statutes based on the constitutional
standards imposed on the government.
[c] Is it state government action?
[i] State action doctrine: Fourteenth Amendment applies to state and local governments and
officers at all levels but not to private individuals.
[1] State action in regulation and provision of subsidies
[2] Limits on state action in regulation and provision of subsidies
[ii] Justifications for state action doctrine
[1] Federalism
[2] Separation of powers under Tenth Amendment: Legislatures are responsible for
controlling private conduct.
[3] Constitutional history: Constitution created to curtail government authority and action
[iii] Criticism of state action doctrine.
[1] Autonomy/liberty: States should be free to act under the Tenth Amendment.
[2] Is there a governmental [state/federal] classification involved?
[a] How does the law distinguish between people?
[i] Facially discriminatory?
[1] Definition: Law specifically discriminates against a class of people by naming them
within the language of the regulation.
[a] No superior class of people
[b] Cannot treat one class as dominant over another
[c] Cannot give preferential treatment to one group over another
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 [d] Justice Harlan’s caste and color-blind principles
[2] Cases with facially discriminatory restrictions
[a] Separate but equal
[i] Limitations on separate but equal [public education]
[ii] Separate but equal overruled
[iii] Implementation of Brown v. Board of Education
[iv] Limits to court’s power in implementing Brown v. Board of Education
[v] Separate but equal overruled in the federal government
[b] Jury selection
[c] Interracial cohabitation
[d] Anti-miscegenation statutes
[e] Interracial re-marriage and custody
[f] Racial segregation in prisons
[g] Japanese internment
[h] Gender
[3] If restriction IS facially discriminatory, there’s no need to establish discriminatory
purpose and discriminatory impact.
[ii] Is it facially neutral?
[1] Does it have a discriminatory effect?
[a] Definition: If the rule is facially neutral, a classification might still be labeled
discriminatory if there is sufficient impact on the protected class, and there was
sufficient intent to discriminate. [Remember you still need to find discriminatory
purpose.]
[2] Does it have a discriminatory purpose?
[a] Definition: Law does not name a class specifically but was enacted with the purpose
of discriminating against a particular class of people. Required to find a facially
neutral law demands strict scrutiny [both purpose and effect must be found per
Washington v. Davis]
[b] P must show there isn’t a good reason for the classification to exist.
[c] P may need to use circumstantial evidence to prove discriminatory purpose:
[i] History of discrimination
[ii] Statistical evidence
[iii] Specific sequence of events leading to the challenged decision
[iv] Analysis: [1] Burden of proof would shift to government if there’s proof that the
government’s decision was motivated by a racially discriminatory purpose; [2]
If both discriminatory effect and purpose were found, government would need to
meet strict scrutiny standard. [Arlington Heights v. Metropolitan Housing
Corp.]
[3] If a classification is involved, what level of scrutiny should apply? The level of scrutiny that should
be applied depends on whether the classification is discriminatory on its ace and whether it is a suspect
classification. [see analysis above to determine whether facially discriminatory or neutral.]
[a] Strict scrutiny: Requires that regulation serve [1] compelling governmental interests and the
means be [2] narrowly tailored to achieve interests; burden of proof on government.
[i] Race
[1] U.S. Supreme Court has held that race-based classifications, including “benign” racial
classifications, are suspect. [Richmond v. J.A. Croson Co.]
[a] Affirmative action programs
[i] Narrowly tailored
[ii] Using race as a plus factor [one of among many factors]
[iii] Method allowing for individualized consideration
[b] Not narrowly tailored
[i] Automatic, set “point” values
[ii] Strict numerical set-asides
[iii] Modifying seniority systems
[iv] Race as a tie-breaker
[v] Race-conscious site selection
[ii] Alienage [national origin]
[1] Classifications made by states with regard to alienage are usually struck down.
[a] Preemption: When Congress makes rules relating to aliens – should not get reviewed
by court, almost like a political question. [Toll v. Moreno]
[i] Rational basis review
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 [b] Exception: Upholds alien exclusion when the law relates to public function.
[Sugarman v. Dougall]
[b] Intermediate scrutiny: Requires that a regulation serve [1] important governmental objectives and
be [2] substantially related to achievement of those objectives.
[i] Gender
[1] Exceedingly persuasive justification [United States v. Virginia]
[2] Facially discriminatory
[3] Facially neutral
[4] Based on biological realities
[5] Programs benefiting women
[ii] Illegitimate children
[c] Rational basis: The government must have a [1] legitimate purpose and [2] use a means that is
rationally related to achieving that purpose; can be satisfied even if conceivable government
purposes are hypothesized after the fact; a minimum level is applied because anything less would
turn the equal protection claim into a political question and render the legislature and executive
self-policing; can be over-inclusive and under-inclusive; one-step-at-a-time legislation.
[i] Race
[1] If not facially discriminatory
[2] If not facially neutral and no discriminatory effect or no discriminatory purpose can be
established
[ii] Gender
[1] Disparate treatment for military purposes
[iii] Alienage [national origin]
[1] When Congress has legislated and effectively preempted states from regulating in this
area.
[iv] Age
[v] Disability
[vi] Sexual orientation
[1] Military
[vii]Poverty
[viii] Economic regulations
[1] Closed class impacted
[2] Animus against a politically unpopular group
[d] Over-broad and under-inclusive analysis
[e] Compare classification to the paradigmatic classification of race
[i] Immutability and visibility of characteristic
[ii] History of legal discrimination (exclusion form original Constitution)
[iii] Vulnerability in the political process
[iv] Ability to perform
[v] History of social prejudice
[vi] Biological differences
[vii]Discrete and insular minority
[1] [Justice Stone] Greater basis for judicial scrutiny where there might be “prejudice against
discrete and insular minorities.” Prejudice which “tends to seriously curtail the operation
of those political process ordinarily to be relied upon to protect minorities.” “The
legitimacy of judicial protection of the losers in the legislative process turn on the losers’
long-term chances of becoming winners.”] Carolene Products [FN 4]
[viii] Equal Protection Clause applies to all people, not just citizens
[ix] Distinctions reflect stereotypes not reality
[4] If there’s no classification, is a fundamental right implicit or explicit in the Constitution involved?
[a] Analysis: [1] Do equal protection analysis through point where classification is involved or not;
[2] If government argues there’s no classification, P should argue there’s fundamental right
involved under Fourteenth Amendment Due Process Clause; [2] Determine level scrutiny to apply
[strict if fundamental right, P would argue; government would argue rational basis believing it to
be a non-fundamental right.]
[b] Substantive due process definition: The Fifth and Fourteenth Amendment guarantees that U.S.
citizens are to receive protection from the federal or state government’s [respectively] intrusion on
their fundamental or non-fundamental rights stemming from life, liberty and property.
[c] If yes, what standard of judicial scrutiny applies?
[i] Strict scrutiny: Requires that regulation serve [1] compelling governmental interests and the
means be [2] narrowly tailored to achieve interests; burden of proof on government.
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 [1] Fundamental right to vote
[a] Poll tax
[b] Property holding requirement
[c] Limited purpose elections/special governmental units
[d] Convicted felons
[2] Vote dilution cases
[3] Access to courts
[a] Loss of liberty
[b] Dissolution of marriage
[c] Paternity
[d] Termination of parental rights
[5] If there’s no classification, is a non-fundamental right involved?
[a] If yes, what standard of judicial scrutiny applies?
[i] Rational basis review: The government must have a [1] legitimate purpose and [2] use a
means that is rationally related to achieving that purpose; can be satisfied even if conceivable
government purposes are hypothesized after the fact; a minimum level is applied because
anything less would turn the equal protection claim into a political question and render the
legislature and executive self-policing; can be over-inclusive and under-inclusive; one-step-at-
a-time legislation.
[1] Political gerrymandering
[a] Political question vs. justiciability
[2] Access to courts
[a] Bankruptcy proceedings
[b] Welfare proceedings
[3] Welfare benefits
[4] Housing
[5] Education
[a] Quality of education
[b] Payment for otherwise free education
[6] What should the court’s role be?
[a] Think ahead to the future when everyone has live together.
[b] Court should be beholden to the sociological/statistical evidence we have right now about what
how people want to live.

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Freedom of Speech and Expression
[1] Is the First Amendment is triggered?
[a] Is there federal government or state action?
[b] Abridgment issue: First Amendment says, “Congress shall make no law abridging the freedom of
speech”
[c] Does the regulation involve speech or expressive conduct?
[i] Speech
[1] Is the restriction content-based?
[a] Subject-matter restriction?
[i] Definition: Application of the law depends on the topic of message.
[b] Viewpoint restriction?
[i] Definition: Defined class of speakers, certain opinions
[c] What level of scrutiny applies?
[i] Strict scrutiny: Government’s restriction is constitutional only if [1] it serves a
compelling governmental interest and [2] the means used is narrowly tailored to
achieve that interest.
[ii] Exceptions: Does the content-based restriction involve an unprotected category
of speech? [Unprotected speech gets rational basis unless there is a viewpoint-
based, restriction that discriminates within the designated category of
unprotected speech, in which case strict scrutiny applies pursuant to R.A.V.]
1. Fighting words
a. Test: Do the words[1] tend to incite an immediate breach of the peace
[Chaplinsky v. New Hampshire] and are [2] directed to the person of
the hearer? [Cohen v. California]
2. Incitement
a. Test: Do the words tend to incite imminent lawless activity such that
they will bring about the type of action the government is trying to
prevent? [Brandenburg v. Ohio]
3. Commercial speech
a. Illegal: [1] Fraudulent, [2] misrepresentative, [3] deceptive, [4] tending
to encourage illegal activity.
b. Test: Commercial speech is protected if it is [1] not advertising illegal
activities; and [2] not false, misleading or deceptive. If [1] or [2] is not
met, then the government must prove there is a [1] substantial
governmental interest, [2] where the means directly and materially
advances that interest and [3] is not more extensive than is necessary to
serve that interest [need not be least restrictive means]. [Central
Hudson]
4. Defamation
a. Public official: If P is a public official or running for public office, P
can recover for defamation by proving [1] actual malice [with
knowledge statement was false or reckless disregard that statement was
false or not]; [2] by clear and convincing evidence. [New York Times v.
Sullivan]
b. Public figure: If P is a public figure, P can recover for defamation by
proving [1] actual malice [with knowledge statement was false or
reckless disregard that statement was false or not]; [2] by clear and
convincing evidence. [Curtis Publishing Co v. Butts AND Associated
Press v. Walker]
c. Private individual: If P is a private figure, P may recover for
defamation by proving [1] falsity of statement and [2] negligence by D.
[Gertz v. Robert Welch, Inc.]
1. Public concern: P may recover presumed or punitive damages only
by showing actual malice.
2. Private concern: P can recover presumed or punitive damages
without showing actual malice.
5. Hate speech
a. Test: Is there a true threat of violence or intent to threaten? [R.A.V. v.
City of St. Paul]
6. Obscenity

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 a. Test: Applying reasonable person/local community standards: [1] Do
the words or descriptions appeal to a prurient interest? [2] Are the
words or descriptions patently offensive and specifically described by
the law? [3] Do the words or descriptions lack literary, artistic,
political, or scientific [LAPS] value? [Roth v. United States; Memoirs
v. Massachusetts]
[iii] If protected under the exception [i.e. doesn’t meet the test for the particular
category of speech] then it must meet strict scrutiny because it’s content-based
and either viewpoint or subject matter based.
[2] Is the restriction content-neutral?
[a] Definition: The law does not restrict a particular viewpoint or a particular subject
matter.
[b] What level of scrutiny?
[i] Intermediate scrutiny: [1] the government’s interest must be important; [2] the
means used must be substantially related to achieving those governmental
interests; OR
[ii] If a time, place, manner restriction on content-neutral speech, then
1. Apply time, place, manner scrutiny: If so, [1] the government’s interest
must be important; [2] the means used must be substantially related to
achieving those governmental interests; [3] must leave open adequate
alternative places for communication. [[1]-[2] are prongs of intermediate
scrutiny.] Cox v. Louisiana]
[i] Does the regulation involve expressive or symbolic conduct?
[1] Definition: Conduct is expressive if [1] there is an intent to convey a particularized
message; and [2] under the circumstances, there is a great likelihood that the message
would be understood by those who viewed it.
[a] Is it content-based?
[i] Definition: Restriction involves either subject matter of message or viewpoint of
speaker.
1. Examples: No nude dancing in general; total medium bans.
[ii] What level of scrutiny?
1. Strict scrutiny: Government’s restriction is constitutional only if [1] it
serves a compelling governmental interest and [2] the means used is
narrowly tailored to achieve that interest.
2. Exception: Even if it appears to be content-based, but the aim is to regulate
the secondary effects, then it’s shifted over to content-neutral, and gets
O’Brien scrutiny. [Paris Adult Theatre; Barnes]
a. Has only been applied to nude dancing
[b] Is it content-neutral?
[i] Definition: Viewpoint and subject matter neutral
[ii] What level of scrutiny?
1. Apply O’Brien scrutiny: [1] “further an important or substantial government
interest;” and [2] involve an “incidental restriction on alleged First
Amendment freedoms that is no greater than is essential to the furtherance
of that interest;” [3] “unrelated to the suppression of free expression;” [4] a
government regulation must be within the constitutional power of the
government [federal government’s necessary and proper clause; state
government’s regulation of health, safety and welfare]; [5] must be closely
tailored to its ends, but the government need not employ the least restrictive
alternative. [O’Brien v. United States]
[2] If not expressive or symbolic conduct?
[a] What level of scrutiny?
[i] Apply rational basis: The government must have a [1] legitimate purpose and [2]
use a means that is rationally related to achieving that purpose; can be satisfied
even if conceivable government purposes are hypothesized after the fact; a
minimum level is applied because anything less would turn the equal protection
claim into a political question and render the legislature and executive self-
policing; can be over-inclusive and under-inclusive; one-step-at-a-time
legislation.
[d] If restriction involves speech or conduct on government property, what forum?
[i] Public forum
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 [1] Definition: Government properties that the government is constitutionally required to
make available for speech – i.e. sidewalks and public parks
[2] What level of scrutiny?
[a] Time, place, manner test [U.S. Postal Service v. Council of Greenburgh Civic
Associations]
[ii] Designated public forum
[1] Definition: Government properties that the government could close to speech, but
chooses to open to speech.
[2] What level of scrutiny?
[b] Time, place, manner test [U.S. Postal Service v. Council of Greenburgh Civic
Associations]
[iii] Non-public forum
[3] Definition: Government properties that the government constitutionally can and does
close to speech. The government can regulate speech in non-public forums so long as the
regulation is reasonable and viewpoint neutral.
[4] Subject matter restrictions and speaker identity restrictions permitted; must be viewpoint
neutral; use time, place, manner test [ISKCON v. Lee]
[a] Airport
[b] Places of employment – federal
[5] What level of scrutiny?
[a] You can have subject matter restrictions but not viewpoint restrictions
[i] If subject matter restriction, apply rational basis
[ii] If viewpoint restriction, apply strict scrutiny
1. Example: Fire station – Can have restrictions that says you can’t talk about
religion in general [subject matter] but can’t have restrictions that
specifically say you can’t advocate a certain religion [viewpoint]
[e] Are there any facial challenges such that the restriction should be unconstitutional?
[i] Prior restraints?
[1] Is there a license/permit/court order for speech or expressive conduct required?
[a] The government can require a license for speech only if there is an important reason
for licensing and clear criteria leaving almost no discretion to the licensing authority.
[i] Unfettered discretion: Discretion to enforce restriction cannot be left in one
person’s or one agency’s hands. [Cox v. Louisiana]
[2] Apply strict scrutiny.
[ii] Vague?
[1] A law is unconstitutionally vague if a reasonable person [or person of ordinary
intelligence] cannot tell what speech is prohibited and what is permitted.
[2] Apply strict scrutiny. [Smith v. Goguen]
[iii] Overbroad?
[1] A law is unconstitutionally overbroad if it regulates substantially more speech than the
constitution allows to be regulated.
[2] Apply strict scrutiny. [Gooding v. Wilson – didn’t use strict scrutiny but was overbroad]
[iv] Analysis: [1] Show how the regulation is a prior restraint/vague/overbroad; [2] analogize to
the cases; [3] analyze whether the regulation can still be constitutional if applied to D if it
were more narrowly drafted [i.e. meets the test for that category of speech]; [4] if
overbroad/vague or unfettered discretion in prior restraint, conclude it will be held
unconstitutional even as to D.
[b] Additional questions to ask, post-analysis:
[i] Does history in fact support special protection of First Amendment rights?
[ii] What is the scope of the “freedom of speech” enshrined by the Framers of the Bill of Rights?
[iii] What evils of pre-Constitution history was the First Amendment designed to avert?
[iv] Why might government regulation of speech be more suspect than governmental regulation of
other activities?
[1] The incumbent regime will be biased in its own favor against dissidents and challengers.
[a] Can this argument be broadened to reach cultural or social dissent as well?

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Freedom of Religion
[2] Is the First Amendment is triggered?
[a] First Amendment says, “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.”
[i] Defining religion: The “test” of belief is whether it is: [1] sincere, [2] meaningful, and [3]
occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.
[United States v. Seeger]
[b] Does the restriction facially discriminate between religions?
[i] What level of scrutiny?
[1] Strict scrutiny: Government’s restriction is constitutional only if [1] it serves a
compelling governmental interest and [2] the means used is narrowly tailored to achieve
that interest.
[c] If the restriction does not facially discriminate between religions?
[i] Does the restriction involve the government’s establishment of religion?
[1] Incorporated into the due process clause of the Fourteenth Amendment. [Everson v.
Board of Education]
[ii] What level of scrutiny?
[1] Apply the Lemon test: The government violates the EC if the government’s [1] the statute
must have a secular legislative purpose; [2] its principal effect must be one that neither
advances nor inhibits religion; and [3] the statute must not foster “an excessive
government entanglement with religion. [Lemon v. Kurtzman]
[iii] Which view is being promulgated regarding the Establishment Clause? [Still examine under
the Lemon test, unless it’s under the symbolic endorsement test section.]
[1] Strict separation view: To the greatest extent possible government and religion should be
separated. [Abington v. Schemp]
[2] Neutrality theory: The government must be neutral toward religion, i.e. cannot favor
religion over secularism or one religion over others. [Good News Club]
[3] Symbolic endorsement test: Government violates the establishment clause if it
symbolically endorses a particular religion or if it generally endorses either religion or
secularism. [Lynch v. Donnelly]
[4] Accommodation/Equality approach: The Court should interpret the EC to recognize the
importance of religion in society and accommodate its presence in government. The
government violates the EC only if it literally establishes a church, coerces participation,
or favors one religion over another. [McDaniel v. Paty]
[d] Can the government action be characterized as a restriction of private religious speech?
[i] Analysis: [1] First analyze based on freedom of speech; if permissible under speech, then [2]
determine if constitutional under the establishment clause.
[1] Is there a restriction on religious speech?
[a] Is the restriction content-based?
[i] Subject-matter restriction?
1. Definition: Application of the law depends on the topic of message.
[ii] Viewpoint restriction?
1. Definition: Defined class of speakers, certain opinions
[iii] What level of scrutiny applies?
1. Strict scrutiny: Government’s restriction is constitutional only if [1] it
serves a compelling governmental interest and [2] the means used is
narrowly tailored to achieve that interest.
[2] Does the regulation involve expressive or symbolic conduct?
[a] Definition: Conduct is expressive if [1] there is an intent to convey a particularized
message; and [2] under the circumstances, there is a great likelihood that the
message would be understood by those who viewed it.
[i] Is it content-based?
1. Definition: Restriction involves subject matter of message or viewpoint of
speaker.
2. What level of scrutiny?
a. Strict scrutiny: Government’s restriction is constitutional only if [1] it
serves a compelling governmental interest and [2] the means used is
narrowly tailored to achieve that interest.
[e] Is the government restricting the free exercise of religion?
[i] Definition: Government may not compel or punish religious beliefs; people may think and
believe anything they want.
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 [1] Free exercise first incorporated into the due process clause of the Fourteenth
Amendment. [Cantwell v. Connecticut]
[ii] Cases prior to Smith [1990]
[1] Apply strict scrutiny: Requires that regulation serve [1] compelling governmental
interests and the means be [2] narrowly tailored to achieve interests; burden of proof on
government. [Sherbert v. Verner]
[2] Is restriction regulating beliefs? [Right to believe in anything you want is absolute.]
[3] Is restriction regulating practices? [Right to conduct yourself in any way you want is not
absolute.]
[i] Is the regulation prohibiting behavior a person’s religion requires?
[ii] Is the regulation requiring conduct a person’s religion prohibits?
1. Alternate scrutiny: “Overriding purpose to justify infringing religion”
standard [United States v. Lee]
[iii] Is the regulation a burden or making more difficult religious observances?
[iii] Case post-Smith [1990]
[iv] Is the restriction a neutral law of general applicability? [Employment Division v. Smith]
[1] Neutral law: Object of law is not to infringe or prohibit a religious practice
[2] General applicability: Object of law is not to prohibit religious practices by a certain
group
[3] Smith test: Law is constitutional even if it burdens religious practices as long as: [1] the
law does not single out religious behavior for punishment and [2] the law is not
motivated by a desire to interfere with religion. [Employment Division v. Smith]
[4] If Smith test is met, then apply rational basis: The government must have a [1] legitimate
purpose and [2] use a means that is rationally related to achieving that purpose; can be
satisfied even if conceivable government purposes are hypothesized after the fact; a
minimum level is applied because anything less would turn the equal protection claim
into a political question and render the legislature and executive self-policing; can be
over-inclusive and under-inclusive; one-step-at-a-time legislation.
[a] Government is NOT singling out religious behavior for punishment
[b] Government is NOT motivated by a desire to interfere with religion
[5] If Smith test is not met, then apply strict scrutiny: Requires that regulation serve [1]
compelling governmental interests and the means be [2] narrowly tailored to achieve
interests; burden of proof on government.
[a] Government IS singling out religious behavior for punishment
[b] Government IS motivated by a desire to interfere with religion
[6] Exception to applying Smith
[a] If federal government action? [Does not apply to non-federal government action
under City of Boerne v. Flores]
[i] Religious Freedom Restoration Act of 1993 [RFRA]: After Smith, Congress
passed this legislation and it was signed into law. The Act contained formal
findings that laws neutral toward religion may burden religious exercise without
compelling justification and that Smith had virtually eliminated the requirement
that the government justify burdens on religious exercise imposed by laws
neutral toward religion. The Act identified as one of its purposes to restore the
compelling interest test set forth in Sherbert and Yoder. [a] Government shall
not substantially burden a person’s exercise of religion even if the burden results
from a rule of general applicability, except as provided in subsection [b] of this
section. [b] Government may substantially burden a person’s exercise of
religion only if it demonstrates that application of the burden to the person [1] is
in furtherance of a compelling governmental interest; and [2] is the least
restrictive means of furthering that compelling governmental interest.
[ii] Apply strict scrutiny: Requires that regulation serve [1] compelling
governmental interests and the means be [2] narrowly tailored to achieve
interests; burden of proof on government. [Gonzales v. O Centro Espirita
Beneficiante Uniao Do Vegetal]
[7] Arguments in favor of Smith: [1] Neutral laws of general applicability no longer allow
religious exemptions since those exemptions would run afoul of the establishment clause;
[2] Changed the doctrine to follow the actual pattern of decisions.
[8] Criticism of Smith test: [1] Inadequate protection of religion
[f] What is the historical record’s interpretation?

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[i] Voluntarism principle: Theory where advancement of the church comes from voluntary
support and not from the political support of the state [principle of personal choice]. [Roger
Williams]
[ii] Separatism principle: Religion and government function best if each remains independent of
one another [non-entanglement principle]. [Thomas Jefferson]
[iii] Non-preferentialist view: the government might support religion in general so long as it does
not prefer one religion over another. [James Madison]

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