Hamilton Sp06 ConLawII - Outline

Hamilton Sp06 ConLawII - Outline - Con Law II - Outline...

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Con Law II - Outline www.swapnotes.com Page 1 of 31 Professor Hamilton Spring 2006 ConLawII Outline www.swapnotes.com Page 1 of 31 Con Law II - Professor Hamilton Spring 2006 Con Law II Outline Overview Q : when can the gov regulate, thereby oppressing s/o’s right? And then, what is the relationship b/t the judiciary and legislature? ( depends on level of scrutiny) Only absolute right: right to believe whatever you want! o But, can regulate conduct even if it’s motivated by religious beliefs! o There is belief, speech and conduct: ± Having beliefs will not cause harm to others. Speech can be bad, but it won’t really harm others unless you take conduct. ± Speech and belief is protected by the 1 st A freedom of speech. Conduct is questioned under the FE clause. 3 Levels of Scrutiny -primary tool court uses to determine how deferential it will be . 1. Minimal-Rationality Review -if law looks neutral, court wont be suspicious and will give deference to the legislature Q asked: Is the law rational in the broadest sense? Purpose : institutional competence-legislature is best at determining policy 2. Strict Scrutiny -Gov has done s/t that triggers court to say no deference and will see what legislature is really trying to do. Q asked : Does the gov have a compelling interest and the compelling interest is closely related to the regulation enacted ? Ex: Content Based Discrimination 3. Intermediate Scrutiny Q asked : Is there an important gov interest and is it adequately tailored - narrow tailoring-to achieve that goal? Goal: Ordered Liberty o Anarchy-e/o makes their own law Æ liberty to the extreme o Totalitarian Æ order to the extreme Free Exercise Provision A. Analysis a. 3 Questions to ask: i. What level of scrutiny under C? ii. Is there a federal or state RFRA that would apply to this law? iii. Would it fall under any of the details that are covered by RLUPA (land use and institutionalized prisons)? 1. Know that state RFRA have tons of exceptions! B. Generally Applicable Laws Æ Low Level of Scrutiny a. Rule: If legislature creates a generally applicable law so that e/o and a/o is affected by it, the court applies a low level of scrutiny and leaves the law, b/c law targetting bad conduct, as opposed to going after the belief. i. Reynolds - Mormons believe in polygamy. Reynolds arrested b/c law that cant engage in polygamy. Reynolds said it was his religious belief! 1. Issue: Can s/o raise religion as a defense to the regulation of conduct? 2. Analysis :
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Con Law II - Outline www.swapnotes.com Page 2 of 31 Professor Hamilton Spring 2006 ConLawII Outline www.swapnotes.com Page 2 of 31 Con Law II - Professor Hamilton Spring 2006 3. Is it regulation of belief or conduct? conduct 4. Belief-per se unC. Conduct-can regulate 5. Does gov have a legitimate purpose? 6.
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This note was uploaded on 02/14/2008 for the course LAW 7502 taught by Professor Adams during the Spring '07 term at Yeshiva.

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Hamilton Sp06 ConLawII - Outline - Con Law II - Outline...

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