Cisneros-2012-summer-constitutional-lawII-answer3

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Unformatted text preview: ID: ConLaw2_LSH2_Cisneros_Fina1_20 12UL Cisneros ID: ' - (Exam Number) Exam Name: ConLaw2_LSH2_Cisneros_Final_2012UL Instructor: Cisneros Grade: Page 1 of1 Exam taken with Sofi' est v1 1 1188132966 JO ID: ConLaw2_LSH2_Ci sneros_Final__2 0 12UL Ci sneros 1) ======== Start of Answer #1 (5124 words) ======== Question 1: The 14th Amendment: In order for Pinky to claim the Lollywood ordinance is unconstitutional, the first step is to make sure the the 14th amendment of the constitution (const.) applies. The Kl...— 14th amendment has the Due Process Clause (DPC) which says that no state shall f..— infringe on any citizen's fundamental rights without due process of law. Since only the const. applied to the federal government, the 14th amd and the DPC selectively incorporated the Bill of Rights to the States. Today, through the 14th amd DPC, the 1st W amendment in its entirety applies to the states. Therefore, the State government must adhere to the 1st amendment. State Action: In order to find that the State violated the 1st amendment/the const. in general. Pinky must first claim that the State acted to violate Pinky's constitutional rights. The constitution only applies to the states and not private individuals or conduct. This is known as the state action doctrine. Only the state may violate the constitution, not private individuals. However, the 13th amendment prohibiting slavery is the exception and applies to both the state and private individuals. There are other exceptions. If the Page 1 of 19 (Question 1 continued) ID: ConLaw2_LSH2_Ci sne ros_Final_2 0 1 20L Ci sne ros State is sufficiently imbued with the private conduct, then there is a close enough connection between the state and the private individual for the constitution to apply to the private individual. The exceptions are private performance of a government function and excessive entanglement between the state and the private individual. Here, Pinky is claiming that the ordinance the City of Lollywood enacted is unconstitutional. The ordinance was enacted by the city and assuming that the city is in a state and is part of the government, this is state action taken by the government and \/ not a private individual. Therefore. the 1st amendment applies to the City of Lollywood and the passing of the ordinance and the validity of the ordinance is state action. 1st Amendment: Free Exercise of Religion: Pinky can reasonably raise a free exercise violation by the City's passing of the ordinance. A. Procedural Challenge: First, Pinky will want to raise a procedural challenge against the ordinance. A law or ordinance will be deemed unconstitional if it is vague or overly broad. An ordinance making conduct illegal will be unconstitional and void for its vagueness if it does not provide fairriofitice to citizens about what conduct islegallillehgal or if it allows for arbitrary enforcement by law enforcement. The policy making vague WP" J laws unconstitional is because the vagueness of a law might chill the individual's first amendment rights by making it so the individuals will not exercise their freedom of speech or religion and instead remain stagnant. This is for their fear of violating the Page 2 of 19 - ‘ (Question 1 continued) ID: ConLaw2_LSH2_Cisneros_Final_2 012UL Ci sneros law. The text of the Lollywood ordinance does come off as a bit vague. Pinky can argue that "dangerous animals" is not specific enough so that people know what kind of animals are allowed to be used in rituals and which ones that are not. What is a dangerous animal? Also "use of" is vague, because a citizen might not know exactly , ,jef‘Y/y :\ p / (dd what kind of use. However, the Clty might argue that "use of" refers to the "rituals" part of the ordinance. In response to that argument, Pinky will argue that it is still vague because what kind of "rituals" or "public events" are prohibited? 0v: c \mo cox \ 3 Second, Pinky will want to argue the ordinance is overly broad. The state V {A ( L13 Q, 9, ‘ govt may not enact a law that is overly broad meaning that it encompasses substantially J1“)? 'r {A \ ‘ l,» Ail ( vat-kl ‘ '9 “5 “limits/narrows the construction of the statute. The court will rule a law more conduct than needed. The state can get around an over-breadth challenge if it ' - "f / \ ‘ : iv Zunconstitutionally over broad if it chills the 1st amd rights of individuals, because the - U citizens might be punished for conduct that is otherwise legal under the free exercise of religion. Here, the terms "public events and private/public rituals" seems to ‘ v 'substantially encompass more than the state is allowed to make illegal. Making the use “of dangerous animals at public events would make it so animals cannot be used for "9"” "4 anything like parades, festivals, or fairs, which most cities do. Therefore, Pinky might ~- I 2 7' .4 be able to sustain an overly broad challenge, but Lollywood might be able to limit the " »/~‘ statute's instruction to rituals, only if reasonable. V J3"/v (‘P‘I’,’, 7577 B. Substantive Challenge If the ordinance is not found unconstitutionally vague or overly broad. Pinky will want to argue that the ordinance is a violation of his right to the free exercise Page 3 of 19 (Question 1 continued) ID: ConLaw2_LSH2_Cisneros_Final_2 012UL Ci sneros of his religion. The free exercise clause is outlined in the first amendment and says no ___._____I state shall infringe on any citizen's right to exercise their religion freely (without govt \/ interference). 1. Is Animaniism religion? Pinky's religion, Pinkyism. was first based on the Warner's formation of the Animaniism (Hereafter. Ani) religion. In order for there to be a violation of the free exercise clause there has to be a religion that the citizen is seeking to exercise. The court stated that a religion is any sincere and meaningful belief held by its possessor and held to beiparallelmtouthat of the traditicEanl orthodoibelief in God. Therefore, the belief must only be sincere and like that of another's belief in God. The belief does NOT have to be reasonable. Here, although the Ani followers hold that TV is sacred and that they must perform various acts of low end law breaking, their belief might qualify as sincere and meaningful. The TV might qualify as their "God". They follow the TV and make animations in order to worship the TV. In fact, they also follow the rituals for animation by going out in real life and doing acts. without injuring anyone. that they would othenivise do in animation. It seems that because they follow the rituals and procedures for which they formed their religion. their belief in the TV as sacred is sincere and meaningful, although unreasonable. However, reasonableness of a belief is not dispositive, and thus Ani would be a religion. (If it was held not to be. then Pinky's claim would fail here). 2. Is Pinkyism a religion? Pinkyism must also be a religion in order to allow Pinky to bring his claim. P8984 of 19 (Question 1 continued) ID: ConLaw2_LSI-I2_Cisneros_Final_2 0 12UL Ci sneros Pinkyism (hereafter. Pink), was a split off of Ani and Pinky was the self-titled leader of the group that split off from Ani and formed Pink. Pink must also be a sincere and meaningful belief that is paralleltoithe traditionalbelief/religion in God. Here. Pink ‘ ' “fl Aii 7W. 4____ , 7V . :n ‘Qr' -7_, 4. 'h ' seems a bit more reasonable and sincere then Ani. Pinkists believe in "gods" and that :‘ffl‘f 6‘ -I’Jr/ the "gods" have chosen certain people to be the true leaders of the world. In order to d O" r N" C rr—k follow this religion. the sincere belief held by the Pinkists is that they are better than i: L" ‘* j w oart<~ . everyone else and must do certain things in order to take over the world to follow Pink and their gods. They are "obligated" to follow the gods which might seem parallel to the traditional belief in God, where there are obligations such as "no killing" or going to Church and praying. One of the Pinkists' obligations under their religion and their belief is to spend a day with the wolves. As long as Pinky can claim that spending a day with the wolves is related to their sincere belief in the Pinkist Gods. then a religion is formed here for 1st amd purposes. 3. Free Exercise Analysis The first step in approaching a free exercise violation by the state government is to analyze whether the state. by its ordinance. violated Pinky's right to freely exercise Pink (his religion). The court in Sherbert stated the govt violated the free exercise clause when it substantially placed a burden on the exercise of religion and \/ was the law was not narrowly tailored to achieve a compelling govt interest. Here. the state will argue that it has a compelling interest in maintaining the safety of its citizens , HA _._.._.—.t_ by prohibiting use of dangerous animals during public or private events. However. the state needs to articulate its purpose in passing the ordinance, but it did not do so here. Page 5 of 19 (Question 1 continued) ID: ConLaw2_LSH2_Ci sneros_Final_2 O 1 2UL Cisne ros If this court did find that Lollywood had a compelling govt interest. then the court must determine whether the ordinance was narrowly tailored to achieve the safety of citizens. Narrowly tailored, means necessary, and that the ordinance enacted achieves the safety. Here. the animals are well equipped to handle humans and the humans are also well equipped to handle the animals. ALthough. there are no facts stating Pinky is able to handle wolves. nor his would be followers. The ordinance might protect amateur handlers from getting hurt or not controlling the animals enough to prevent them from hurting others. The flash from the cameras for the Breading Cats, might have a negative impact on the wolves and put others at risk. However, the ordinance must be the least restrictive way ofvachieving safety, and not allowing private rituals or professional handlers use animals is too broad and might make the ordinance f to exercise their religion. because Pink needs followers and the only way to gain Vt“ ‘ followers for their gods is by way of spending time with the wolves. If Pinky can establish this practice as vital to the religion, then the ordinance would make it so the religion could not be exercised by the Pinkists and thus place a substantial burden on them. However, the Smith test after Sherbert, held that the Sherbert test was best suited for cases such as employment benefits and not receiving them for exercising , Afar?! ‘ religion. Here. we are talking about use of dangerous animals. so Sherbert might not 7,7, apply. ’—/ If Sherbert does not apply. then the court will use 88 (as above), but if the law is neutral and generally applicable then the law does not violate the free exercise clause under Smith. If the state has the authority to regulate conduct that might be the exercise of religion and the state is neutral in regulating that conduct (without reference Page 6 of 19 Yr ‘ I ‘ ( (’Yx: 7L, \(1*\7’r:’@ I / .J _.,'-r ‘ \ 9);) \ Jv‘féuesiion 1 continued) Con aw2_LSH2_Cisneros_Fina1_2012UL Cisneros to religion). then the law is pheld. Here. the state is regulating use of dangerous animals which it does have the authority to regulate for religious purposes and might be generally applicable. However, the state does not seem to be neutral in regulating the use. since it regulates the use for "rituals". Rituals have a religious connotation attached. However. if Lollywood is successful in its neutrality argument. then the ordinance will be upheld, unless it doesn't meet the following test. After Smith, courts in Church of Lukumi, established a more intensive neutral and generally applicable test. Lukumi stated that the court should evalutate or certain factors to correctly find that the govt is neutral in regulating conduct that might ’ A otherwise be a violation of the free exercise clause. Some factors include looking for K, the intent of the govt in enacting the law, the text of the law, the history, and the ., v ' 3x legislative process. Here. Lollywood enacted the ordinance one week after the M __ s\\ i/ newspaper discussed the pinkist rituals. This goes towards finding that Lollywood 3 acted with an intent to violate the Pinkists' right to exercise the Pink religion. The article fistated the use of wolves in the rituals and the ordinance prohibits "use of animals in ‘ r“ "l rituals". That goes to the tefi ofthe ordinance. Here. it seems that Lollywood will fail ,0 'l under the Lukumi/Smith test, because of the direct enactment and text of the ordinance heavily suggesting the intent of Lollywood to violate the Pinkist's right to free exercise of Hi” “pl (‘0 LAlh‘ ‘W 3(3 r41 SC/(I( 'J‘Tg ‘k/L‘Fw’z 0v :4 v, w W C” '3 l I , r O A‘a’fiopvv‘f Jwfi¥n it” ‘LI‘H' 0P P bi” tr [TA—6:14 or ’ gl‘E‘ncw/ ““N ‘ “‘ " 7—~ "a ‘ ‘r—t “w A ( a 4 7/ ‘ “V- v‘ ‘j‘ '( v v (4 " ".7 b" 4‘1 ‘1 f‘l‘ "Na/l _‘ “‘( bv (' a? (L‘k'lr‘ '11 I.” fer ‘3 , L; 7‘ ‘ 3 x ‘ V \ x av ‘ [:7' "r “ C ‘L’ ‘ «31‘3"; t "3 2‘“ N L,‘ )‘l,.‘(3\tl,( (\fCfl‘L : ‘(j pr? ‘0le {A vaAo'l (' 31‘ . . . . . \ ' .‘ In conclusion. It seems that Pmky has a valid or reasonable claim of 7 it I, b AruJ 3 unconstitutinality of the Lollywood ordinance. if Pinky lost. Pinky should also raise the issue of the forum in which the exercise of his religion takes place. The center is Page 7 of 19 .\ ’ public. but iprivately owned, then Pinky is given absolute free speech protectiorVif not wic " “a a i\% (Question 1 continued) ID: ConLaw2_LSH2_Ci sneros_Final_2 0 1 2UL Ci sne ros private property. and under free speech, and on private property 1st Amd protections are at their absolute. Pinky might argue that the rituals are an exercise of his free C ,u 9‘” ,,(' 'L y" . . . . \‘W J 4’ .. . speech. (Same 14th and state action analysrs as above). And smce the center IS not \Q Q may" "i ‘ J \ / T5” ‘ # \r\ found to be exercise of religion). The center is "not open to the public". This is "3 ‘ 7 4%"? v conduct, but might be expressive conduct if there is an intent toiconvey a particularized ’7er 1, message and a substantial likelihood that the audience will deem it communication. ' a? Air The conduct is the rituals of spending time with the wolves and taking pictures with cats ‘1» to contribute to the marketplace of ideas surrounding Pink. Since the ordinance is an “55.x 05“ attempt to ban this conduct as speech (by wording of "forbidden"), the O'brien tesfis/ M applicable. If the law just restricted or moved around the conduct then the time place X and manner test applies (serves a significant govt interest that is narrowly tailored and .._.._...W,W‘_ .. , f » leaves open alternative avenues of communication). The law will be upheld if it the law is serving an imp govt interest, unrelated to the suppression of speech. and the burden is no greater than necessary. However. here it would fail because it is related to the suppression of speech since the ordinance was enacted right after the article about the wolf ritual came out. Therefore, unconstituional under free speech as well. ote: Assuming the Lollywood Animal Center is owned by the City of Lollywood w Unot sure), then the forum would be a non-public forum. A non-public forum is government owned property that is not traditionally a public forum for the free exchange of ideas. Thererfore. it is not subject to complete first amendment protection. Lollywood can enact any ordinance regarding the animal center and make Page 8 of 19 (Question 1 continued) ID: "‘ ConLaw2_LSH2_Cisneros_Final_2012UL Cisneros M speech/expressive conduct illegal so long as it is reasonable and viewpt neutral. Here use of animals in rituals is reasonable because of the danger involved in using wolves. Question 2: A: Whether Sue (hereinafter "8") can bring this action against Capital City Club (hereinafter, "Club")? S can bring this action against Club only if there is a Pennsylfornia statute J prohibiting discrimination based on gender by private individuals/companies or if it is the state. federal, or any other type of government infringing on her rights. 1. The 14th amd. As stated above, the 14th amd applies the certain parts of the bill of rights good to the states through the DPC. but the Equal protection clause is applied directly to the states through its language. The EPC of the 14th amd is implicitly incorporated to the federal government through the 13kt/h amd. 5% 2. State Action In order for S to claim an EPC violation, there must be state action violating her rights since the constitution only applies to the states and the federal government. However, the state action doctrine states that private individuals and Page 9 of 19 (Question 1 continued) ID: ' " ‘ ConLaw2_LSH2_Ci sneros_Final_2 O 1 2UL Ci sne ros companies (as private citizens) are held to the constitution and the 14th amd if the state's action is sufficiently imbued with the private company's conduct/action. Otherwise, the constitution does not apply to private individuals. The Club is a "private, members only social club" and for S's suit, the Club is obviously a private entity and therefore under the general rule, not held to the constitituon and does not have to adhere to the EPC. However, the Club is located in a building owned by the Community Development Authority. In order to find state action. the Authority must also be considered a government entity and not private. The Authority was created by state legislation (assuming to perform "community development" plans) and is funded by public funds. Creation by state legislation is most likely enough to find that the Authority is a government entity and thus held to be the state for state action purposes. Thus, the Authority is held to the const and in order to find the Club is as well, there needs to be a close enough relationship. if Private conduct can be held to the constitution based on three ideas. Based on function. the court might find that the private company is sufficiently imbued / CX(T\VE>\\F'\ 7 with the state if the private company (Hereinafter, PC), is exercising what is traditionally a function that the government engages in. Based on aggravation, the PC is sufficeintly imbued with the state if the injury caused by the PC (here denying EPC rights) is awe; . aggravated by the state's entanglement with the PC. Finally, based on reliance, if the —_— PC is receiving signfieant governmental benefit/aid from the PC, then the scales weigh in favor of a sufficient relationsliip between the state and PC to make the PC's conduct state action. Most of this analysis by the courts is fact specific and policy bound. ‘/ The two general exceptions to the state action doctrine are the private performance of a govt function and excessive entanglement by the state and the PC. Page100f19 ( Question 1 continued) ID: ConLaw2__LSH2_Cisneros_Final_20 12UL Ci sneros The private performance of a government function can happen in two ways. The const applies to the PC if the PC is engaging in what is known as exclusively and traditionally W an action engaged in by the government. Second, the const applies to the PC if the PC is acting as the functional equivalent of the government in its conduct. Here. there are little/no facts suggesting that the Club is engaging in a traditional function left usually to the govt. The only fact to suggest that the PC is engaging in a traditionally government function is the holding ofthiepmeetings at the Club's facilities. However, if the Club is not involved but only allows govt access. this factalone is notenough to conclude that the PC should be held to the const. However, the Club might be operating as t...
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