I.

Liberties in General
A. Theoretical Approach
1. Assumption is the power exists for the action, the question is on whether that exercise of power infringes on some individual Constitutional right. 2. Individual can attempt to stop enforcement of the law by claiming the exercise of power infringes a protected right. 3. Normal procedure when an individual makes the showing that a protected right is infringed is to shift the normal presumption that the law is valid to invalid, and places the burden on the state to establish a legal basis for the action

a) Rational Basis b) Intermediate Scrutiny c) Strict Scrutiny B. Equal Protection

1. Equal treatment 2. Discriminatory treatment

C.

Due Process
1. Procedural Due Process

a) Focus on procedural dimension proper process for enacting, notice, hearing, adjudication, etc.
2. Substantive Due Process

a) Focus on the rights that are protected D. 1st Amendment

II. Economic Liberties

A.

Economic Substantive Due Process

1. Constitutional Basis not much, so largely judicial doctrine.

a) Article 1 10: No state shall pass any law impairing the Obligation of Contracts b) 5th Amendment: nor shall private property be taken for public use without just compensation. c) 14th Amendment: neither the federal nor state governments can take a persons property (or life or liberty) without due process of law.
2. Early History bad law today. Social Darwinism prevailed.

a) Slaughter-House Cases Due process clause concerned procedures only, not rights. Dissenters theories that right to job should be protected by due process clause later prevailed. b) Later cases upheld regulations, but hinted that due process clause could be used to strike them down.
(1) Munn v. Illinois Court upholds regulation setting maximum rates of grain elevators. Court expressly declared it is up to the judiciary to evaluate the reasonableness of state regulations, and court held that under some circumstances, regulation of business would be found to violate due process. If the subject of the contract is affected with the public interest, it can be regulated. If it is purely private, no regulation is permitted.

3. Lochner Era extremely activist posture. Largely bad law today, except with regard to punitive damages.

a) Allgeyer v. Louisiana b) Lochner v. New York

4. Economic Substantive Due Process since 1937 end of Lochnerism, permissive of regulations limiting right to contract.

a) B. Contracts Clause
1. Constitutional Basis Art. I 10 No State shall pass any law impairing the obligation of Contracts. Applies to states, not fed. Applies to existing contracts, not future. 2. Largely made superfluous by the application of 5th and 14th Amendment Due Process protection to right of contract. 3. Modern Use of Contracts Clause (1934-present)

a) NOT a strong limitation and not actively applied because very deferential approach. b) When a state or local government interferes with existing private contracts, a three part test is used Energy Reserve case:
(1) Is there a substantial impairment of contractual relationship
(a) Consider whether industry is already regulated to determine degree of impairment (b) Outer limits of state action is adoption of policy that would repudiate debts or the destruction of contracts. That would be unconstitutional.

(2) If so, does the impairment serve a significant and legitimate public purpose?

(3) If so, is the impairment reasonably related to achieving the goal

(a) Very deferential

c) When state interferes with its own contracts intermediate tier of review
(1) Is there a substantial impairment of contractual relationship (2) If so, does the impairment serve a significant and important public purpose? (3) If so, is the impairment reasonable and necessary to serve the public purpose
(a) Heightened level of scrutiny

C.

Takings Clause
1. Constitutional Basis: Nor shall property be taken for public use without just compensation. 2. Analysis:

a) Is there a taking?
(1) Possessory Taking permanent physical occupation authorized by government (cable tv) (2) Regulatory Taking - no set formula. General Penn. Coal rule: if the regulation goes too far, it can be a taking.
(a) Prohibitions: (Regulation prohibits some use)

(i) Per se Lucas Rule: If ALL economic value is deprived, per se taking. (a) Palazollo Look to land as one parcel. Cant consider part of land separately from the rest. (b) Tahoe Moratorium is not a taking.

(ii) Ad Hoc Penn Central Factual Rule: If not all economic value is taken, apply three criteria: (a) Economic impact on claimant
(i) Note if claimant is deprived of ALL economic value, use Lucas per se rule.

(b) Extent to which the regulation interferes with investment-backed expectations and (c) Character of the government action
(b) Conditions (Use is permitted, but upon conditions)

(i) To be permissible and not a taking, there must be an Essential Nexus between permit conditions and the legitimate state interests for the conditions. (a) What is the condition? (b) Is there a legitimate state interest in the condition? (c) Is there a Nexus between condition and interest? Standard of scrutiny is Rough Proportionality

b) Is it property?
(1) Generally rely on state law
(a) Real property is property (b) IOLTA (interest on lawyer trust account) is property of client. Phillips

c) Is just compensation paid?

(1) Measured by loss to the owner, not gain to the taker.

(a) Brown IOLTA - interest on lawyer trust accounts that could not earn interest on their own has no value to owner. So requirement that it be paid to State Bar, though a taking, is not compensable.

d) Is the taking for public use?

(1) Very deferential Rational basis test: Whether the use is rationally related to any conceivable public purpose. The extent of police power is the scope of the public use analysis. If the state can legally do it, it is a public purpose.

III.Fundamental Rights (Substantive Due Process)

A. Historical
1. Revival of substantive due process to protect fundamental rights is dated at Griswold in 1965 (birth control) and Roe v. Wade.

B.

Analytical Framework
1. Is there a fundamental right?

a) How do we decide if a claimed right is fundamental?

(1) Those rights and liberties which are, objectively, deeply rooted in this Nations history and tradition and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed. 2. Is the right infringed?

a) Consider the directness and substantiality of the interference

(1) Not much case law on this, except abortion issue

3. Is there sufficient justification of the infringement?

a) Strict Scrutiny - If the right is fundamental, the government must present a compelling interest to justify the infringement. b) If the right is not fundamental, government only needs a legitimate purpose (rational basis review)
4. Is the means sufficiently related to the purpose?

a) Strict Scrutiny: Government must show the law is necessary to achieve the objective. C. Family Autonomy
1. Right to Marry

a) Loving no interracial marriage law is unconstitutional b) Zablocki cant marry if you owe child support unconstitutional because not narrowly tailored to purpose c) Economic loss is not significant impairment, so marriage tax is ok, but marriage or divorce fee as applied to indigents may be.
2. Right to Custody of Ones Children 3. Right to Keep Family Together 4. Rights of Parents to Control Upbringing of their Children

D.

Reproductive Autonomy
1. Right to Procreate 2. Right to Use Contraceptives 3. Right to Abortion

a) Casey v. Planned Parenthood special rule for abortion undue burden test before viability, after viability, must contain health of mother exception b) 24 hour waiting requirement is not an undue burden c) No requirement to provide funding, and broad discretion to withhold funding d) Spousal Consent/Notification
(1) Consent state doesnt have power to veto, so state has not power to delegate that power to husband. (2) Notification will impose a substantial obstacle (principally because of the fear of spousal abuse)

e) Parental Notification/Consent First, state may not impose blanket provision requiring consent of parent. State may require minor to obtain consent, but state must provide an alternative judicial procedure for obtaining authorization. This process must have two parts: Either
(1) finding that abortion would be in minors best interest; or (2) minor is mature enough to decide for herself what is in her best interest

E.

Medical Care
1. Right to Refuse Treatment

a) Competent person has Constitutionally protected fundamental right to refuse treatment (living will approval) b) When person is not competent, Court approves states decision to impose a higher clear and convincing evidence standard to determine what the incompetent persons desires would have been. (Doesnt require this standard, just says it is ok for state to do so.)
2. Physician-Assisted Suicide not a protected right.

F. G. H.

Control Over Information Right to Travel Right to Vote (Specially protected in the Constitution)
1. 15th Amendment not abridged based on race 2. 19th Amendment not abridged based on sex 3. 24th Amendment no poll taxes in elections for federal offices 4. 26th Amendment extends right to vote to citizens 18 and over 5. Other Court has declared right to vote to be fundamental under equal protection (same doctrinal approach as if due process. Probably result of racial context of laws abridging right in past.)

a) Poll Taxes in state elections Harper strikes down state poll taxes b) Property Ownership
(1) Kramer v. Union School - lays out rule:

c) Literacy Tests held constitutional in 1959, but outlawed by federal statutes (voting rights act). d) Prisoners/Convicted Felons rights to vote: Once a person has been convicted of a felony, a state may deny the individual the right to vote.
(1) But before conviction, those charged must be provided with right to vote, including absentee ballots if they are incarcerated

e) Dilution of right to vote One man, one vote in both state and federal elections.
(1) How close? as Close as possible (closer scrutiny in federal elections (.7% too much) than in state elections (9.9% deviation ok).

I.

Access to Courts
1. Fee Waiver key in determining whether the Constitution requires a fee waiver for indigents is presence of a Constitutional right. 2.

IV.Procedural Due Process

A. B. General: Protect against arbitrary government action Analytical Framework
1. Has there been a deprivation?

a) Negligence is not enough b) Deliberate/Reckless Indifference to Life

(1) Normally, is enough, but (2) Exception - In pursuit/emergency it is not enough action must shock the conscience

c) Intentional Purpose to harm is enough d) Failure to act to prevent abuse or neglect is not enough.
2. Is the deprivation of life, liberty, or property?

a) Entitlement establishes property interest if the benefit is received often enough and is important enough, it becomes a property interest.
(1) Right/Privilege distinction was how property right used to be decided, but abandoned in Goldberg. (2) Entitlement to public assistance is property interest. (Goldberg)

b) For other areas look to state substantive law to determine whether there is a property interest.
(1) E.g., when a 1-year employment K expires, there is no right to a 2nd year, so no deprivation of liberty interest when the K is not renewed. (Roth)

c) For deprivation of liberty interest, look to whether an important right has been infringed:
(1) Freedom from restraint, freedom to contract, freedom to engage in chosen profession, etc.
(a) E.g. non-renewal of a K is not deprivation of liberty (Board of Regents v. Roth)

(2) Reputation no liberty interest.

(a) Where a persons good name, reputation, honor, or integrity is at stake because of what the government is doing to him, due process is implicated. E.g., suspension from school implicates due process rights because this is state action putting reputation at stake (Goss v. Lopez) (b) BUT see, Paul v. Davis where court holds there is no liberty interest in reputation alone.

(3) Probation, Parole, and Prisoners liberty is implicated, and some level of due process is required. 3. Is the deprivation without due process of law? (What process is due?)

a) Usually, notice and some kind of hearing b) Mathews v. Eldridge Balancing Approach to determine what kind of hearing is due:
(1) Private interest affected by the proposed action
(a) What does private person have at stake in the situation? (b) Concentrate on the private interest during the time between a pre and post hearing.

(2) Risk of erroneous deprivation under existing procedures versus the probable value of additional procedures
(a) How likely are we to get a result that is correct if we know everything (Gods eye view)? What is the likelihood of coming to the wrong conclusion under existing procedure? What is the likelihood of making a mistake under the new proposed procedure?

(3) Burden on the government imposed by the proposed procedure

(a) Functional (b) Fiscal and administrative

V. Freedom of Expression
A. Constitutional Basis in 1st Amendment:
1. Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

B.

Four theories for protecting speech:

1. Further self-governance 2. Aid discovery of truth via the marketplace of ideas 3. Promote autonomy 4. Foster tolerance

C.

Free Speech Methodology

1. Content-Neutral v. Content-based restrictions

a) How to make the distinction:

(1) Is there a limitation on expression? (2) Is the regulation content based or content neutral?

b) Content-Neutral (Time-Place-Manner): Regulation of speech unrelated to content is subject to intermediate scrutiny.

(1) Intermediate Scrutiny: Restriction is Constitutional if it
(a) Advances a substantial governmental interest unrelated to the suppression of free speech and (b) Does not unreasonably limit alternative avenues of communication.

c) Content-Based: Regulations that suppress, disadvantage, or impose different burdens on speech because of its content are subject to the most exacting scrutiny
(1) Strict Scrutiny: Restriction must be
(a) Compelling state interest (b) Necessary and narrowly tailored to achieve that interest

(2) Government Funding problem where government has to make content-based distinction:
(a)

2. Vague and Overbroad

a) Vague dont know what it covers, and might cover protected expression.
(1) General Due Process concept that applies to all kinds of laws, not just speech. (2) A law is unconstitutionally vague if a person cant reasonably tell what speech/conduct is prohibited or permitted (3) Policy: might have a chilling effect on speech (4) Examples:
(a) Law prohibiting persons from conducting themselves so as to annoy others vague (b) Law requiring loyalty oath that person doesnt belong to subversive group - vague

b) Overbroad if the statute regulates substantially more speech than the Constitution allows to be regulated. This contains two parts:
(1) Substantially overbroad not just some.
(a) Law prohibiting all live entertainment is overbroad because even though it might

constitutionally prohibit obscene performances, it includes substantially other protected speech. (b) Recent courts adopt Numerator/Denominator approach regulation must prohibit substantial amount of protected speech RELATIVE to legitimate applications.

(2) Standing issue: Person against whom the law may be constitutionally applied can argue that the law would be unconstitutional if applied to others. In other words, I can defeat the law with hypothetical examples.
(a) I dont have to show you my porn because the law would also prohibit a school textbook.

(3) Limitation: Court will avoid invalidating laws by allowing courts to construe statutes narrowly and thus avoid overbreadth.
(a) Law prohibiting nudity (which is overbroad on its face) may be ok if the state courts have interpreted the statute narrowly to only apply to child nudity.

c) Relationship between Vagueness and Overbreadth

(1) Usually, a vague statute is also overbroad.
(a) Statute prohibiting annoying others on sidewalks is vague because we dont know what is covered, but it is also overbroad because it would prohibit protected association/expression.

(2) A law may be overbroad but not vague.

(a) Regulation prohibiting all live entertainment is not vague we know what is covered but it is overbroad.

d) Exam Tip Always do vagueness/overbreadth facial challenge when you see 1st Amendment question (sometimes just as preliminary approach to show you know it, sometimes as entire issue, depending on question.)
3. Prior Restraints

a) Historically:
(1) Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights. (2) Heavy presumption of unconstitutionality (3) Based on English licensing requirements.

b) Policy:
(1) Prior restraint is more inhibiting than subsequent punishment (2) Collateral Bar Rule: Person violating unconstitutional prior restraint law may be punished, where person violating unconstitutional subsequent punishment law may not.
(a) Must obey court order until it is set aside. You cannot disobey court order and challenge it. (Appeal it instead.) (b) You can engage in civil disobedience and violate other types of regulations and still raise challenge.

c) Defined: (Difficult to define) Prior restraint is an administrative system or judicial order that prevents speech from occurring. d) Court Order as Prior Restraint:
(1) Injunctions may not prevent publication
(a) Exceptions:

(i) National Security

(ii) Obscenity (iii)Incitement to violence fighting words (iv)Advocacy of unlawful conduct

(2) Injunctions to protect fair trial almost impossible to be effective

(a) Gag orders on attorneys treated differently

(3)

e) Licensing as Prior Restraint:

(1) Important Reason for licensing
(a) Higher standard than legitimate interest

(2) Clear standards leaving almost no discretion to issuing body

(a) Post hoc rationalization is not acceptable (b) Content based regulations require Freedman level of safeguards

(i) Presumption speech is permissible (ii) Requirement for prompt determination (iii)Judicial determination before censoring have to go to court

(3) Procedural safeguards

(a) Prompt determination (b) Availability of judicial review

4. What is an Infringement of Freedom of Speech? (Catchall category for analysis)

a) Civil Liability for speech is an infringement, and subject to heightened scrutiny b) Prohibitions on compensation is an infringement subject to heightened scrutiny
(1) E.g. profit from crimes, prohibit federal employees from accepting compensation for speeches and article writing

c) Compelled Speech is an infringement

(1) Flag salute is compelled speech (Barnette If there is a fixed star in our constitutional constellation, it is that no official high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. (2) Compelling someone to state name and give up anonymity is a form of compelled speech.

d) Unconstitutional Conditions government cant condition a benefit on requirement that person forgo a constitutional right. (No consistent application)
(1) Loyalty oaths to get veterans benefits unconstitutional (2) Upheld provision conditioning tax exempt status on requirement that the organization not participate in lobbying. (3) Upheld provision prohibiting funding of agencies that counsel that abortion is a method of family planning

e) Pressures D. Types of Less Protected and Unprotected Speech

1. Incitement of Illegal activity

a) Historically, there have been 4 tests

(1) WWI - Clear and Present Danger (2) 1920-30s Reasonableness test
(a) Particularly with regard to syndicalism laws (anti-unionizing) that create presumption

(3) 1950s Gravity of evil v. likelihood of inciting illegality (overturned reasonableness test). (4) 1960s on Brandenberg Test (essay tested): State may not forbid advocacy of use of force or of law violation UNLESS
(a) Intent - Where such advocacy is directed to inciting or producing (b) Imminent lawless action and (c) Is likely to incite or produce such action.

2. Fighting words, provocation of hostile audience

a) Defined: Fighting words are those which are directed at a specific person, and (1) inflict injury or (2) tend to incite immediate violent response b) Limitations:
(1) Narrowed to require words to be directed at specific person and incite violent response (2) Vague and Overbroad (3) Content-Based

c) Distinctions within fighting words:

(1) Content based is bad except with regard to the very reason for the proscription
(a) Type distinctions are bad: e.g., no libel against Republicans. (b) Degree distinctions are ok: e.g., no really bad libel.

d) Types of Fighting Words

(1) Fighting Words those personally abusive words that are likely to provoke violent reaction (2) Imminent Lawless Conduct directed to inciting imminent lawless conduct (3) True Threats Ill kill you. (4) Intimidation True threats toward group - Ill kill all of you

3. Hostile Audience

a) Defined: Speech likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. Passes bounds of argument or persuasion and undertakes to incite a riot. b) Refined: Later cases follow Blacks dissent in Feiner without overruling the case, and require police to first make all reasonable efforts to protect the speaker and may only stop the speaker if reasonable crowd control is not possible.
4. Obscenity

a) Appeals to prurient interest b) Taken as a whole, average person applying contemporary local standards
5. Commercial Speech

a) Historical
(1) Old rule Valentine v. Christensen Commercial speech was unprotected (2) Mid-1970s Bigelow v. Virginia Commercial speech is protected

b) Definition expression related solely to the economic interests of the speaker and its audience. Some areas are subject to regulations:
(1) Advertising illegal activities (2) False or deceptive (or likely to be, i.e. trade names) (3) Promote social goals
(a) Lawyers (b) Tobacco

(c) Panic selling maybe (d) Gambling

c) Test
(1) Is the expression commercial speech?
(a) Three factors to consider (alone, they may not be enough, but together they are)

(i) Ad (ii) Product (iii)Economic motivation

(b) Not illegal activity or likely to be misleading

(2) Governmental interest is substantial (3) Does the regulation directly advance the governmental interest asserted? (4) Is the means a reasonable "'fit between the legislature's ends and the means chosen to accomplish those ends, . . . a means narrowly tailored to achieve the desired objective? (Moved away from least restrictive) 6. Torts

a) Defamation
(1) 4 approaches (based on who the PLAINTIFF is)
(a) Public Officials & Figures, matter of public concern (NY Times v. Sullivan)

(i) Public official or running (ii) PLA must prove case by clear and convincing evidence (iii)PLA must prove falsity

(iv)PLA must prove actual malice knowledge of falsity or reckless disregard of whether the statement is true or not.
(b) Public figure, matter not of public concern same as NY Times (c) Private figure and matter of public concern (Gertz)

(i) PLA must prove falsity (ii) State may not impose liability without fault (Negligence or higher, not strict liability) (iii)Must be actual malice to recover for presumed or punitive damages
(d) Private person, matter not of public concern (Dunn & Bradstreet)

(i) Presumed and punitive damages do not require proof of actual malice

(2) Public official/figure defined:

(a) Thrust self to forefront of a public controversy

b) Intentional Infliction of Emotional Distress

(1) Public Officials/Figures may not recover for IIED unless they prove same as NY Times v. Sullivan, falsity & actual malice

c) Public Disclosure of Private Facts

(1) States may not impose sanctions on publication of truthful information lawfully obtained from official records. (2) States may only impose sanctions for publication of truthful information lawfully obtained from nonofficial records if the state has an interest of the highest order, and in a manner narrowly tailored. (3) For matters of public concern even if the matter is originally obtained illegally, no liability for

publication by person who obtained the information lawfully. No protection for person who obtains it illegally. 7. Mixed Speech/Conduct

a) Does the conduct have an expressive component?

(1) The regulation will be justified if:
(a) It is within the power of the government (b) Regulation furthers an important government interest (intermediate); (c) Government interest is unrelated to the suppression of free expression; and (d) If the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest

(2) If the statute is related to the suppression of free expression, strict scrutiny standard applies.

b) Spending Money as Political Speech

(1) Expenditures
(a) Expenditures are expression, not conduct and strict scrutiny applies.

(2) Contributions
(a) Contributions raise problem of corruption, and because of this serious problem, limitations are justified.

E.

Places available for speech

1. Three types of places:

a) Traditional Public Forum: Streets, Parks, Sidewalks are typically available for public expression strict scrutiny b) Designated Public Forum: Places that are not traditional, but have been set aside for speech strict scrutiny c) Reserved spaces: Any other govt space, government is free to regulate but must be:
(1) Regulation is reasonable (2) Not intended as viewpoint supression 2. Public forums

a) Content Neutral Time/Place/Manner restriction ok as long as narrowly tailored to serve important interest (intermediate scrutiny). No requirement of least restrictive means.
3. Desigated forum: same as public forum 4. Non-public forums

a) May be maintained for their intended purpose b) Schools very deferential reasonableness approach:
(1) Educators do not offend the 1st Amendment by exercising editorial control over style and content of student speech in school sponsored expressive activities as long as their actions are reasonably related to legitimate pedagogical concerns.

F.

Freedom of Association
1. Punishment for Membership:

a) Current approach: government may punish membership only if it proves

(1) That a person actively affiliated with a group, (2) Knowing of its illegal objectives, and (3) With specific intent to further the objectives 2. Compelled Disclosure of Membership

a) Will disclosure substantially chill association? b) If yes, government may require disclosure only if it meets strict scrutiny
(1) There is usually a compelling interest to require campaign finance disclosure to prevent corruption (2) But if unpopular party and likelihood of retaliation (Communist party), the state interest may be insufficient to overcome the burden on right to association 3. Compelled Association

a) Union/Bar Dues
(1) Collective bargaining purposes is ok (2) Cant require contribution to ideological causes with which individual disagrees

b) Student Fees
(1) Student fees may be used to fund speech individuals object to if school determines that good part of education is exposure to variety of speech, but individuals may insist on safeguards and Contentneutrality is generally sufficient to protect those rights.

4. Prohibiting Discrimination in Organizations

a) Intimate Associations protected and antidiscrimination laws dont apply b) Expressive Associations
(1) There may be compelling state interest unrelated to suppression of ideas that cannot be achieved through less restrictive means. Interest in preventing discrimination is such an interest. (Jaycees) (2) But, where forced inclusion would significantly affect the expression of the association, the state interest is not sufficient. (Boy Scouts)

G.

Freedom of the Press

1. Basic approach: Press has same protections as any other organizations 2. Tax:

a) Generally applicable taxes are ok b) Taxes that single out the press (punitive) are not acceptable c) Differential taxes for big or small press are also unconstitutional.
3. Laws and Taxes that are generally applicable are ok. 4. No shield to prevent disclosure of sources 5. No sword to gain any more access than general population

H.

Freedom of Religion
1. Free Exercise Clause

a)
2. Establishment Clause

a) Caveat: There is a rule: the Lemon test but a majority of the Court has indicated it would abandon the Lemon test, but there has not been a case where a majority could agree on a substitute. b) Lemon test three-part test
(1) Statute must have secular legislative purpose (2) Principal or primary effect must be one that neither advances nor inhibits religion; and (3) The statute must not foster an excessive government entanglement with religion.

If all three are not met, strict scrutiny c) Three theories of approaching establishment clause question (although never adopted by any majority)
(1) Strict Separation
(a) Separation of church and state

(2) Neutrality Theory (slight majority)

(a) Government must be neutral towards religion (b) Symbolic Endorsement test law cant endorse either religion or secularism.

(i) OConnor pushes for the informed person perspective

(3) Accommodation
(a) Key question is whether there is government coercion.

d) Discrimination Among Religions

(1) Question of whether there is facial discrimination
(a) If so, strict scrutiny. (b) If not, apply Lemon test

e) Schools no prayer in schools. f) Government aid to religion (cases make no sense) g) Religious use of public facilities
(1) Allowing religious groups to use government facility is ok because to forbid the use would be content-based viewpoint discrimination and to allow it is not entanglement.