Cisneros-2012-summer-constitutional-lawII-answer1

Cisneros-2012-summer-constitutional-lawII-answer1 - ID ‘...

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Unformatted text preview: ID: ‘ 1 ' ConLaw2_LSHl_Cisneros_Final_2012UL Cisneros ID: ’ ' ‘ (Exam Number) Exam Name: ConLaw2_LSH1_Cisneros_Final_2012UL Instructor: Cisneros Grade: Ql Q g :35 3-9! /55 /55 (9/654 Job Page 1 of 1 Exam taken with San" est v1 1 .0.1591.34971 ID: ConLaw2_LSI-I1_Cisneros_Fina1_20 12UL Cisneros 1) ======== Start of Answer #1 (2334 words) ======== Question 1: . . 7 2 9M 1st Amendment (AMD), Freedom of Religion maian ‘5th The 1st AMD states that "congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." The 1st AMD is applied to the states through the due process clause (DPC) of the 14th AMD. , f“) r \7 r 9x 9 “K ’2 Cf r?‘ State Action Ciao (M ” V} a d . . . . . / . {2/ 'jm )g I In order to succeed in a claim against the state. It must first be shown that state action bcfvu‘ j: “ is present. State action is present here because the city (a state actor) enacted the f ordinance. If this situation had involved a private actor. we would need to show that the private actor was acting for the state through one of the exceptions to the state action doctrine. The exceptions are: Traditional public function (private entity stands in the VA- shoes of the state by performing a service traditionally and exclusively performed by the state), Government (Govt) endorsement (the govt commands, coerces, or endorses the private behavior), or Joint Activity (there are enough connections between the state and the private entity to prove the existence of a symbiotic relationship between the two. However, in this case, the ordinance is a state action because it was enacted by the local govt. Free Exercise The free exercise clause states that "congress shall make no law prohibiting the free Page 1 of 9 (Question 1 continued) ID: ConLaw2_LSI-I1_Cisneros_Fina1_2012UL Ci sneros exercise [of religion]." The first test for whether or not the state was violating free exercise was the Sherbert test. The Sherbert test looked at whether the ordinance ‘— placed a substantial burden on free exercise, served a compelling govt interest, and W was narrowly tailored to meet that compelling interest. However, Sherbert has since been reserved for use in unemployment compensation cases. and the current test is M... Smith. ,.-— The Smith test focuses on whether the ordinance is: L? neutral and (9 generally applicable. The pertinent part of the ordinance states "the use of dangerous animals at public events or for public or private rituals is forbidden." 1. Neutral - The ordinance appears to be neutral on its face. It does not specifically reference religion or any religious groups. However, it does reference "rituals" which gives a religious connotation. This is probably not enough to raise it to the level of not being neutral though, since it also reference public and private rituals, and public events. However, it would depend on the opinions of the court. 2. Generally Applicable - the ordinance appears also to be generally applicable. It applies to the use of dangerous animals at public events or for public or private rituals. It does not, however. state who it is aimed at, so it appears to be aimed at anyone who ma want to use dan erous animals. This raises uestions ofoverbreadtl'r- 0“ va'tedw y 9 q M \Ev zprc véwc +0 On its face, the ordinance appears to meet the Smith test. However. in looking at the iv 5? 4\ .—v'y’ w‘Jvf “ context surrounding this decision. we get a very different picture. In Church of the t1: 3¥-=~\—-y Lukumi Babalu Aye. the court found that if an ordinance singles out one particular “ ow: v e A__,‘_.,. _..__» \ (“C \u \ U7 fl,— religion. then it is susceptible to higher scrutiny and may thus be struck down. Page 2 of 9 «CECCMV O’x—f h (Question 1 continued) ID: ConLaw2_LSHl_Cisneros_Fina1_20 12UL Ci sneros In Church of the Lukumi Babalu Aye. the court created four factors to use in considering whether the ordinance was directed at one specific religion. The factors are: 1. the breadth of the ordinance 2. the effect of the ordinance 3. thettixtof the ordinance 4. the tflstory of the ordinance Looking at these factors creates a much different conclusion. 1. Breadth - this ordinance is extremely broad. In fact. it is so broad that it may be struck down simply based on overbreadth. The ordinance prohibits the use of '9 \J W31? 8. dangerous animals at public events, but does not describe what public events are. {0 ji’ af / W‘— .3134” There is no definition. Does this include the public zoo? Or the circus? Or even r\ children's shows? It is not clear at all what a public event is. It is not clear what a 1 "dangerous animal" is. Domesticated dogs can become dangerous at times. Would / they be included? This ordinance is way too broad and encompasses protected rights (such as having a dog as a pet). It would have the effect of chilling othen/vise protected activities because people wouldn't know whether or not it was OK for them to have that activity. so they would just not do it. ‘3 For many of the same reasons. this law is also vague in not providing definitions. 0v People don't know what's expected of them. There also has not been much notice given to citizens. as this law was only passed in one week. 2. Effect - the effect of this ordinance is that many protected activities would not be able to occur. because of the vagueness and overbreadth of the law. as discussed above. Not only are the Pinkists being prohibited from the free exercise of their religion. but other citizens are being prohibited from having a zoo. or a circus, or perhaps even a pet Page 3 of 9 X ( W ( \‘ .2 )Vx 1‘ v r‘ X t’ O G ‘ A J (Question1confinu9d)f W (X /\ INV) .>(‘ \\"f \K » IL/ ,. \0" (V ‘7‘ W42 q- aje. The ordinance was obviously dogYThere isadearfieffecttothe in this c _’__- enacted in order to stop them from performing their rituals, which were not harming any persons or animals. This ordinance may also have the effect of not allowing the animals to be used in movies. if the movie-making is considered a public event or a public or private ritual. 3 - text — the text of the ordinance. as stated above. is both overbroad and vague. The fact that the city listed "public or private rituals" shows a clear focus toward aiming this ,/ (\ 31$ ordinance at the Pinkists. This is just like the Church of Lukumi case, where the text of the ordinance focused on the rituals they were performing with animals. There is no / generally applicable need to have an ordinance against private rituals which use dangerous animals, except to restrict the Pinkists from the free exercise of their religion. There is no other group in Lollywood which uses dangerous animals for a private ritual. Furthermore. the use of the word ritual gives a religious connotation which takes this ordinance away from neutrality. Expecially considering the circumstances surrounding its creation. 4 - History - the history around this ordinance gives even more compelling reasons why this ordinance should be struck down. The ordinance was enacted just ONE WEEK after an article in the newspaper was published which discussed Pinkism and the testing its members underwent at the Lollywood Animal Center. This is highly suspect. and shows that the ordinance is likely purposefully directed at the Pinkists because ordinances don't usually pass and become enacted so quickly. Also the fact that it was done right after the publishing of this article shows that it was likely in response to this article that the city passed this law. There is no other group which uses the wild animals in the Lollywood Animal Center, and as far as the facts show. no other group which Page 4 of 9 (Question 1 continued) ID : ConLaw2_LSI-I1_Ci sneros_Final_2 0 12UL Ci sne ros uses wild animals at all in Lollywood. therefore, it is clear that this ordinance was directed at the Pinkists specifically. When looking at the Smith test along with the Church of Lukumi factors. it is clear that this law is not generally applicable or neutral. The law violates the Pinkists right to free isrcrse of religion, and therefore It Will likely be struck down for the reasons stated b ove. Furthermore, this law may not even need to get to the level of discussion herein, I as it may simply be struck down on the grounds of being vauge and overbroad. as x g A . C \ stated above?) ' { 06 JP \ (Cc (fig/NW} \ \r"; J (7“ \ V . j: r ‘ ‘ ‘ ND C ,N p ,‘x” , \c p : J“ y 4‘ D, Git r;9$ wt 1)") “7'7" Yip 0?“ MVP 93%“ Ban on Conduct \ I}? *5) cat/Cr) ‘ OJ " X 5“ \Pinky may also argue that this ordinance is a ban on his conduct. thereby I, \'\ “OJ N 5 ~ *' impinging on his 1st AMD right to free speech. The free speech analysis starts by x :24 ‘7 v7 V deciding if the action being restricted lS speech. In order to determine this, you ask if kw /)I‘F off/x ‘61 there is expression involved. In this case, there IS expression involved, though it is ex fifng v,— p of) [pression through conduct and not through speech. The next thing to ask is if the /\\W‘ restriction is subject matter (SM) and viewpoint(VP) neutral. In this case, it is not SM neutral, so we are in pure speech. If it was content Neutral (CN), then we would apply intermediate Scrutiny (IS), which looks at whether the ordinance is substantially related to an important govt interest. But in this case. it is not CN, it is CB because the \/ CJOOCX. ordinance applies to the use of dangerous animals and that is a content. The next thing to decide is what kind of speech it is. For Protected Speech (such as political speech). the test is strict scrutiny (SS), and the ordinance would be judged on whether it is narrowly tailored/necessary to serve a compelling govt. interest. For less protected speech (Profanity, lndecency. commercial speech), the test is when the Page 5 of 9 (Question 1 continued) ID: ConLaw2_LSI-I1_Cisneros_Fina l_2 0 12UL Ci sne ros ordinance is CB, the court uses SS and takes into consideration the context around the law. For unprotected speech, there are many tests. They are as follows: - lncitement (Brandenbug) - the expression is likely to (and intended to) incite immediate lawless action. 1. intent / .4 2. probability f 1 ’9‘ 3 ' ' ) 970647 3/» .Imm laC Imminence " \ 9 y (6%“ U; \C A} A K 4. ction w“ a” 5 8” \“ \UJ 06 S<fl c, - Fighting Words (Chaplinsky): \4' words, directed at the hearer. which by their very utterance tend to incite an immediate breach of the pe - Obscenity iller) 1. app als to the prurient interest (reasonable person in community standard) g/patently offensive (reasonable person in community standard) 3. lacks social value - lacks serious literary, artistic, political, or scientific value. (national standard to balance out the first two factors) Child Porn Ferber - actual harm )O'a’ctual child through live performance or reproduction of live performanceflcc/mding to Ferber this is NEVER allowed. Ashcroft/{Virtual child porn is protected as long as it doesn't involve actual harm to an actual child. But it is CB and must survive SS. For mixed speech and conduct. if the restriction is CB, then it goes through the same tests as listed above. If it is ON, and govt is just trying to move the speech. then it goes Page 6 of 9 (Question 1 continued) ID: ‘ ConLaw2_LSHl_Cisneros_Final_2 012UL Ci sneros through a Time. Place. and Manner test (TPM). TPM test is that the regulation must be CN, narrowly tailored to serve a significant govt interest, and it must leave alternative .___— channels of communication open. Our case does not fall into any of these areas of speech or mixed speech/conduct. Our case instead'falls into conduc . There are two tests for conduct. The first is the O'Brien vx/ ___—.———-' \ test. and it is used when there is a total ban on conduct. If it only involves a partial ban on conduct. then the TPM test (as defined above) is used. The O'Brien test involves the following factors: / 1. Whether the govt. has the power to create the regulation \/ 2. Whether the regulation advances an important govt interest J 3. The interest is unrelated to suppression of speech V 4. the incidental effect on speech is no greater than necessary. In our case. the regulation Pinky is objecting to is a total ban on conduct. It V prohibits the use of dangerous animals at public events or for public or private rituals. So the court would go through the O'Brien factors. 1. Power - the govt does have the power to create regulations surrounding the use of wild animals. It is important for the govt to be able to regulate such use for the safety of \OCaavu-‘K-rlbu‘t' EMWV“ 3% \-‘r ‘5 0‘“ Cmctsc V4 Pong, vaC/v'b 2. Important govt. interest — the govt has an important interest of regulating the safety of the citizens. its citizens (however, it is questionable in this case whether that is REALLY their interest or whether that's pretext) 3. Interest is unrelated to suppression of speech - this factor is not met. The regulation's whole purpose is to suppress Pinky's right to his expressive conduct. Therefore the Page 7 of 9 (Question 1 continued) ID: ConLaw2_LSHl_Cisneros_Final_2 012UL Ci sneros regulation is very related to the suppression of speech. The facts stated above about __ good how the re ulation w s ' - COn k 3 v 9 a enacted one week after the news article speaks to this. 5f :3 f :1 *1 4. Incidental effect on speech - The incidental effect on speech (in this case, conduct), :o’\ ‘56 «Du . . . . . . b4 IS to completely ban It. Pinky lS banned from this conduct altogether, and therefore, so Sevm%u I m1 . . . _ t. v . are all the other Pinklsts. This regulation also bans other types of constitutionally p» r éim A . . . 0V3»! mCrAr") allowed conduct regarding wrld animals. {19, 1] 9.73"“; While the govt does have power to create this regulation, and they could at least claim to have an important interest in protecting their citizens, this regulation will likely fail the O'Brien test because it fails to meet the other two factors. The court would likely decide that Pinky's right to free speech has been violated, and strike down this regulation as unconstitutional. If the court does not think this is a total ban and instead thinks this is a partial ban on cunduct, then the court will apply the TPM test. The TPM test is as follows: The regulation must be (1) narrowly tailored to serve a (2) significant govt interest, and it must (3) leave alternative channels of communication open. I will start with significant govt. interest - The govt may state that their interest is in the safety of the citizens. however, as explained above. that interest will likely be found to be pretextual because of the circumstances surrounding the enactment of this ordinance. narrowly tailored - this ordinance is not narrowly tailored, because it includes a lot more conduct than necessary to protect citizens. This ordinance would ban even people who are trained to work with "dangerous" animals from doing so. It also does not define Page 8 of 9 (Question 1 continued) ID: ConLaw2_LSH1_Cisneros_Fina1_2O 12UL Cisneros H dangerous animals, and as such. may include many more animals than necessary to protect the citizens. alternative channels of communication - this ordinance leaves NO alternative channels of communication open, because as far as the facts show, there is no other place for Pinky to go for these ceremonies. there is no evidence of any other facility in Lollywood where he could do this. Therefore, for all of the above reasons. this ordinance is likely going to be struck down as being unconstitutional. Both because it violates Pinky's 1st AMD right to the free exercise of his religion. and because it violates his 1st AMD right to free speech. ======== End of Answer #1 ======== PM (\va "‘ N." ‘ k Page 9 of 9 ID: ConLaw2_LSI-I1_Cisneros_Final_2 012UL Ci sneros 2) ======== Start of Answer #2 (1442 words) ======== Question 2: A) Can Sue Bring the Action? The Equal Protection Clause of the Constitution states that "no state shall deny to any persons within its jurisdiction the equal protection of the laws." This is in the 14th AMD. and is applied to the federal govt through the DPC of the 5th AMD. fem State Action In order to succeed in a claim against the state, it must first be shown that state action is present. State action is present when a 90W the state itself) enacts a law. In this case, we are not dealing with that situation. In this case, we are dealing with a private actor. Therefore we need to show that the private actor was acting for the state through one of the exceptions to the state action doctrine. The exceptions to the state Action Doctrine are: - Traditional public function (private entity stands in the shoes of the state by performing a service traditionally and exclusively performed by the state); Q09? PK _.___._____ t , v\ IV. - Government (Govt) endorsement (the govt commands, coerces, or endorses the “WW; 4 ’J’ private behavior); or - Joint Activity (there are enough connections between the state and the private entity to prove the existence of a symbiotic relationship between the two - however, simply getting some funding from the state is not enough). This case could fall into either the Govt endorsement or Joint activity test. Page 1 of 6 (Question 2 continued) ID: ' ConLaw2_LSI-I1_Cisneros_Final_2012UL Cisneros Govt endorsement - Authority was created by state legislation and is funded through public funds. Authority owns the building and has specifically chosen to rent it out to Club. While public funding alone is not enough. the fact that Authority specifically chose Club to be in its building, has its offices there, and chose to have meetings and x / functions there is a strong showing that the govt endorses the behavior of the Club. This is a state entity which has chosen to invite a private Club in so that it could hold meetings and social functions at the club. By so doing, the govt has shown an endorsement of the private Club's activities. Joint Activity - there are enough connections here between Authority (a state legislated entity). and Club to show that there is a symbiotic relationship between the two of them. Authority built the building because of a specific need for a place to have offices and hold social functions; they chose to have a private club (Club) rent out the space so that (3.0V OJ ub K)” ‘3 J 9/15,)” wuldahave'th‘éif’rfimCialfuncfioPs there; and they also allow the Cl Pct ‘/ use of four floors of the six floor building. This is a state entity which has chosen this state building to a private entity, and to use that private Club for state purposes. This shows a symbiotic relationship between the state and the Club. The connection here is strong. Therefore, this is a state action. and Cue can bring this action against Capital City Club. / B) Sue's Claims: Equal Protection: Sue is claiming a violation of her rights under the equal protection clause of the 14th AMD. She is claiming that the club's policy of giving preference to combat veterans has a disproportionate adverse impact on women. Page 2 of 6 (Question 2 continued) ID: ' ConLaw2_LSH1_Ci sneros_Fina1_2 O 12UL Ci sneros GENDER CLASSIFICATIONS: Gender classification are quasi-suspect classifications because of the history of discrimination against women, the lack of political power women have had. and because gendWracteristic. Gender classifications are not as add/k suspect as race/national origin classifications because there is a real biological difference between men and women. which sometimes can be a legitimate factor to (30}; r consider. Gender classifications undergo Intermediate Scrutiny (IS), which means the the regulation (in this case the Bylaw) must be substantially related to an important CiLqf/ngifw( govt. interest. This means that the law cannot be over or under-inclusive. while some / over/under-inclusiveness is OK. too much can cause the law to b...
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