Cisneros-2012-summer-constitutional-lawII-answer4

Cisneros-2012-summer-constitutional-lawII-answer4 - 1 I ID...

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Unformatted text preview: ‘1‘_.-. I ID : ConLaw2_LSH2__Ci sneros_Fina1_2 O 12UL Cisneros ID: - (Exam Number) Exam Name: Con Law2_LSH2_Cisneros_F ina|__201 2UL Instructor: Cisneros Grade: cm Q2 53 HlQ Jdo Page1of1 Exam taken with SofT est v11.0.650.92968 ID: ‘ =‘ ConLaw2_LSH2_Cisneros_Final_2 0 12UL Ci sneros 1) ======== Start of Answer #1 (2244 words) ======== Constitutional Challenge 1: Free Exercise Clause The first challenge that can be raised is a violation of the Free Exercise clause. Under the 1stA, freedom of religious belief is absolutely protected. The court's have taken a broad view of religion and religious belief, holding that a belief must only be 1) “*7 sincerely held, and 2) occupy the same centralfiplace in a believers life as a traditional mainstream religion would occupy in their believer's life (functional equivalent). It is improper for a jury to determine the "truth" of the religion so long as the belief is sincerely held. Furthermore, the dominant view of the religion is not dispositive. In this 7777 7 7 _7...« case, Pinkyism would be considered a religion and Pinky's religious belief is absolutely protected because their belief in Breading Cats is a sacred ritual that appears sincere. Even though Pinkyists are a sect of Animaniism, the fact that Pinkyists do not subscribe to the dominant views of Animaniism does not make their beliefs less valid. Although the Pinkyists religious belief in elitism and Breading Cats is absolutely protected, free exercise of arbelief can be limited by the government. The Supreme Court first articulated the test for Free Exercise (FE) in Sherbert (denial of unemployment benefits), stating that strict scrutiny (necessary to achieve a compelling H7.— gov't interest) was the proper test when free exercise was substantially burdened. Later, in Employment Division v. Smith (peyote case), the Court held that there were no J exceptions for religious practices when the law was neutral and generally applicable. The Employment Division court held that the Sherbert analysis was distinguishable because it only related to denial of unemployment benefits. Later. in Church of Lukumi Page 1 of 8 (Question 1 continued) ID: ConLaw2_LSI-12_Cisneros_Final_2 0 12UL Ci sneros Babalu Aye v. Hailea (santeria animal sacrifices), the court stressed the important of determined whether a law really was neutral and generally applicable by looking at factors such as the text of the statute. the history of the decision-making process, the effect of the law, and the practical application of the law. Lukumi held that if a law was not neutral and generally applicable, then strict scrutiny would be the appropriate ____..4 analysis to apply. On its facefiie law appears to be neutral and generally applicable, but a deeper analysis under the Luirurni factors suggest otherwise. The text of the law does not single out religion or specific rituals. and appears to apply to everyone (both "public or private rituals"). However, the history of the decision making process shows that the law was passed with the intent to prevent the Pinkyists from practicing their religious ritual because the law was passed one week after a newspaper article documenting the religion's ritual was published. Furthermore. the effect of the law is that only Pinkyist / Lollywood were used in rituals was for the Pinkyist Leadership Test (and in movies). religious Cat Breading rituals are effected because the only time the animals at Therefore, the practical application of the law is to prevent the Pinkyists from practicing their Cat Breading Leadership Ritual. This is similar to the situation in Lukumi, where the city of Hailea passed a law prohibiting animal sacrifices for the veiled purpose of preventing Santeria religions rituals. Consequently, the law is not neutral or generally applicable and strict scrutiny should be applied. Strict scrutiny requires that the law be necessary to achieve an important government interest. Here, the government interest is not stated. but one can assume it relates to preventing animal cruelty and protecting the public health, safety, and general f M welfare. Although preventing animal cruelty and public safety are compelling Page 2 of 8 ( Question 1 continued) ID: 5 ' ConLaw2_LSH2_Cisneros_Final_2 0 12UL Ci sneros government interests. the factors disused above suggest that those are not the government's primary reasons for passing the law. A compelling purpose can never be a purpose to suppress the free exercise of a particular religion. Therefore, the law will most likely fail strict scrutiny. Assuming that the court found that preventing animal cruelty and public safety were in fact the government's compelling interests in passing the law. the law still has to be narrowly tailored enough to meet that end. There is no evidence that the wolves —___/ were harmed during the Pinkysists Breading rital, and in fact the Pinkysists do everything the wolf handlers do including direct contact with the animals. Preventing animal cruelty could be achieved in other ways that do not encompass the Pinkyist W...— sacred religious practice (too over-inclusive). the law is also under inclusive because it / fails to include ways that animals can be harmed besides public and private rituals. Similarly, there is no evidence that public safety was an interest that needed protecting, / particularly because the public is not allowed in the Lollywood center and because there is no evidence that anyone was ever harmed by the rituals. Overall. the law is not necessary to achieve the alleged stated interest. Because the law substantially burdens the Pinkysists religious practice, failure to satisfy strict scrutiny would make the law unconstitutional. There are statutory ways that Free Expression can be protected as well. One is the Religious Freedom and Restoration Act. which attempted to bring the Sherbert Test / back as the main test for violations of free expression. RFRA does not _ap_ply to the states, so it would be inapplicable to this case (it would be applicable as a statutory cause of action for federal violations of free exercise). Additionally, the Religious Land Use and Institutionalized Person's Act also does not apply to these facts. but is a good Page 3 of 8 (Question 1 continued) ID: ConLaw2_LSH2_Ci sneros_Final_2 0 12UL Ci sne ros reminder that there is room between the joints of the Free Exercise and Establishment Clauses. . . r/ There IS no Establishment Clause issue in this case because the law is \/ at? attempting to regulate private conduct. not intermingling government and religion in a way that offend the guarantee that the federal government will not establish an official religion. It is hard to see how under any of the three perspectives (Strict Separation. Accomodation, or Neutrality), the law can be seen as in some way establishing a religion. creating coercion to participate. or endorsing a specific religion. Constitutional Challenge 2: Free Speech The second challenge to the law that is available to the Pinkyists is a First Amendment Free Speech challenge. They can claim that their religious ritual is speech that expressed their religious beliefs. The 1stA prohibits the federal government from suppressing free speech or expression. There are not many protections contained within the actual Constitution (aside from Article I, section 9’s prohibiting against bills of attainder, ex post facto law. and impairment of private contracts), so the Bill of Rights was added as a compromise for Jefferson and the anti-federalists. The court held in Barron v. Baltimore that the BOR was not applicable to the states, so the rights contained therein were later incorporated to the states via the 14th Amendment. There ..__~— were three theories of incorporation: Justice Black’s Total Incorporation (incorporate all \/ of the BOR and only the BOR; Cardozo's Selective Incorporation (only those rights/ which are so fundamental that liberty cannot exist without them); and Frankfurter's Non- \/ Incorporation (case-by-case basis). The debate surrounding the Incorporation Doctrine Page 4 of 8 (Question 1 continued) ID: ConLaw2_LSH2_Cisneros_Fina1_2012UL Ci sneros consisted of three main ideas: did the history of the 14thA intend for the BOR to be incorporated, the judicial role of incorporation re: subjectivity of justices, and concerns for federalism and imposing on state sovereignty. Selective Incorporation was the prevailing theory and the entire 1stA has been incorporatedito the states (along with others such as the 4th and the 8th cruel and unusual punishment clause). The court held in the Civil Rights Cases that the VBOR still doesn't apply to private conduct, absent some exemptions, which is a concept known as the state action \_____’« doctrine. Here, the State Action Doctrine does not present a problem because it was the City of Lollywood that passed the law at issue. Any local municipal, state. or federal / government action is considered stet action and therefore subject to the limitations of the Constitution. Free Speech: Procedural Challenge A law is procedurally unconstitutional when it is either vague or overbroad. In the w interest of fairness and due process, a law must describe the proscribed acts with enough specificity that a reasonable person is on notice as to what is prohibited. This \v' prevents the law from having a chilling effect on speech and prevents the discriminatory H..— administration by officials. Here the law is vague because there is no description of what type of rituals are prohibited. One does not know if it is just rituals where the J animal is touched, orjust looked at because there are many ways to interpret the word "used." Further, there is no way to determine what a "dangerous" animal is in the V statute. By all accounts. the wolves were tamed and used to human interaction. which “‘40 would confuse a layperson about whether the wolves are dangerous or not. That ‘3 amount of ambiguity will likely result in the statute being unconstitutional. Page 5 of 8 (Question 1 continued) ID: ConLaw2_LSH2__Cisneros_Final__2 0 12UL Ci sneros Secondly. a law must not be overbroad. an overbroad law encompasses both protected and non protected speech. A law must be substantially overbroad to be deemed unconstitutional, and the claim can be brought by the harmed individual or on behalf of others (a break from the traditional rules requiring standing to sue). A law will be fatally overbroad unless the court can find a reasonable limiting interpretation (fed courts will look to the state courts so as not to breach federalism). In the case at hand, the law is overbroad because it captures conduct that is othenivise protected, such as rituals with animals that do not hurt the animals, or use of dangerous animals at "public events" in general. There is no evidence of a reasonable limiting interpretation, such as interpreting the law to prohibit only animal rituals with a specific type of dangerous / animal if hurts the animal. Therefore, the law will likely fail on over breath. Free Speech: Substantive Challenge The first question to ask when challenging a law substantively is, "Is the conduct speech?" It is speech if the speaker intended to convey a message and if there is a substantial likelihood that the messagj will be understood by those hearing it. Here. the Pinkyists would have to argue that they intended to convey a religious message during the Cat Breading Ritual. There is a substantial likelihood that someone observing the \/ Breading ritual would understand that the Pinkyists were conveying a religious message about what they believed in and what their religion demanded. There are three types of speech: pure speech (speaking and writing), mixed speech/conduct (leaflets and demonstrating), and symbolic speech (arm bands. no \/ communication). The Breading Ceremony would be considered Symbolic Speech Page 6 of 8 (Question 1 continued) ID: ConLaw2_LSH2_Cisneros_Final_20 12UL Ci sneros because there is no communication other than taking a picture with the wolf. the first step in a symbolic speech analysis is determine whether the regulated conduct has an ‘/ expressive element. Here, it can be argued that the Car Breading expresses the Pinkyists religious views on their elite status. leadership, and practices. It is a sacred ritual that expresses their views on the world and what they must do to comport with J their religious doctrine (unlike a simple sneeze which does not have an expressive nature). The second step in the analysis is determining whether the law is attempting to regulate the content of the message or just the conduct itself. If the the law is content- based then a pure speech/strict scrutiny analysis applies. Here, the government is not concerned with the message behind the banned rituals, just that the rituals do not take place on dangerous animals and that dangerous animals are not used in public events. The law is neutral as to any specific viewpoint or subject matter than could be conveyed, therefore the law is content neutral and the analysis continues under Symbolic Speech. Third, the analysis requires a determination of whether the law is attempting to restrict theooriduct or ban the conduct. The government may restrict conduct at all times, in a certain place, and using a particular mode of communication without regard to the seeker's identity or the message's content (Time Place and Manner Test). However, the government may not ban symbolic speech altogether unless it passes the O'Brien Test (draft card case). the O'Brien test requires: 1) that the government have the constitutional power (state-police power; federal -constitutional), 2) have a \/ substantial government interest, 3) the interest is not related to the suppression of free expression. and 4) the regulation is no greater than necessary to achieve the interest Page 7 of 8 (Question 1 continued) ID: ‘ ConLaw2_LSH2_Cisneros_Final_2012UL Cisneros (narrowly tailored). In this case. the state does have the police power to regulate conduct of private citizens to protect public health. safety, morals. and general welfare. The state also has a substantial interest in preventing animal cruelty and protecting public safety by limited contact with dangerous animals and preventing rituals on animals. However. it can be argued that the regulation is related to the suppression of free exercise because the law was passed only after the city was made aware of the Pinkyists religious ritual (see above discussion on whether the law was actually neutral or in fact passed in an attempt to prevent the Pinkyists' religious practices). Furthermore. the laws greater than necessary to achieve the stated interest because it encompasses harmless contact with animals that does not need to be regulated in order to meet the stated interest, such as rituals that do not harm animals or present a danger to the public. Therefore, the law will not pass the O'Brien test and the government cannot ban the conduct and the Pinkysists' free speech claim will likely be upheld. \/ i N O“ X” \i g o“ \J ‘ \J 4‘} \2 MU :======= End of Answer #1 ======== __—____—____———-——-——-_—-—— Page 8 of 8 ID: ' . ,- ConLaw2_LSH2_Ci sneros_Fina l_2 0 1 2UL Ci sneros 2) ======== Start of Answer #2 (1018 words) ======== A) Sue can bring an action under the 14th Amendment's Equal Protection Clause Sue Can bring an action under the l4thA because the Club was sufficiently imbued with / state action that a reasonable person would think that the Club's actions were those of the state. The Constitutional restrictions do not apply to private conduct (Civil Rights Cases) - the State Action Doctrine requires a government actor for Constitutional protections to apply. However, private conduct can be considered state action if it falls into one of two exceptions to the SA Doctrine: public function or entanglement. Public Function Exception the public functions exception allows private conduct to be considered state action when the gov't allows the private party to "step into the shoes of the state." Public Function is shown by ¥______ either proving that the private party was allowed to be a "functional equivalent" (ex: case where privately-owned-town was considered public town), or when the gov't allows a private party to exercise what is traditionally an exclusive gov't function (Metro Edison). Here, the public function exception is not Sue's strongest argument because the Club is not carrying out a \/ traditionally exclusive government function by renting the building, nor is the Club a functional equivalent of the state in this context. Entanglement Exception Sue's stronger argument is that the Club is subject to state action because the government has encouraged, facilitated, or advanced the private conduct which violates the constitution. Under the Entanglement Exception, private action will be deemed state action if there is reliance Page 1 of 4 (Question 2 continued) ID: ConLaw2_LSH2_Ci sneros_Fina1_2 0 12UL Ci sneros on government benefits/support (WPA) or government endorsement of private conduct (Shelley v. Kramer). The facts of this case are similar to the facts in Wilmington Paring Authority, where the court held that a private restaurant's discrimination was state action punishable under the 14thA because under the totality of the circumstances test there was a mutually beneficial symbiotic relationship between the state parking garage and the private restaurant. M;/ In the case at hand, there is a mutually beneficial relationship that benefits both the Club and the Authority. The Club receives favorable rent and a place to conduct its business. the Authority constructed the building because it needed permanent offices and a place to hold events. The Authority benefits from having the Club rent its bottom floors because they have priority access to the Club's facilities. The Authority, a state entity, pays for maintenance and upkeep of the building, including the floors that the Club rents. Under the totality of the circumstances test, the Club and the Authority are sufficiently entangled to justify state action / \ being projected onto the Club. Therefore, the Sue can bring a constitutional action against the Club in the same way she could against a state entity like the Authority. B) 14th A Egual Protection Claims The 14th Amendment has three clauses that protect citizen's rights: the privileges and immunities clause (rendered useless by the Slaughterhouse Cases); the Due Process Clause (discussed in Question One as a way to protect fundamental rights such as First Amendment freedoms of speech and religion); and the Equal Protection Clause which mandates that no state shall deny any citizen the equal protection of the laws. / ______________________________———————————-—-— Page 2 of 4 ( Question 2 continued) ID: ConLaw2_LSH2_Ci sneros_Final_2 0 12UL Ci sne ros Sue can argue that her membership denial is a violation of the EPC because of gender. / Gender is a quasi suspect class that requires intermediate scrutiny (also, monmarital children). , 5 ~ ‘ \—-———-—* »___———————- a: ,7 Gender is a quasi-suspect class because there is a history of discrimination against women / 5“? .1, __._.———-- \C, ‘ ~v (Women were considered property), a history of political powerlessness (couldn't vote, no rights), j ' fl __.#-._- 7 A‘ j I and gender is an immutable characteristic. lnterrnediate scrutiny requires that the law be all‘ ‘ .4 ,1 ' ‘UJ‘ w 20“: , kogubstantially related to an importaxntigovt interest. A law that is facially discriminatory will not be 7 .9" J ' @V(“’€d"‘3‘wi . .. . f’ 1...“);9/‘5 ggVBUQS. \fisustained based on blatant stereotypes about women such as traditional profess10nal roles or ' ~ “ . )U'j-M'ficahm J economic dependency. When the law is facially neutral, there must be a proven discriminatory r’ .‘, H.“ purpose cou...
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