con law: april 29 2010 class notes

coersion test, under establishment clause.

state action doctrine.


privately, you can discriminate.
but state action requirement ...

marsh v. AL -- this is private property. if someone were to leaflet in your bathroom, you have a trespass action, not a con law issue. but what is it about this case that bridges the issue for expression in this case, when the leafleting is happening on private property belonging to gulf? gulf has created a mini-government in someways (policing, public space maintenance, etc)... do they perform enough gov't like activity to become a government? j.black says that the more that gulf opens their property for public realm, the more it becomes public realm. how would that affect the leafletter in your bathroom? if you're trying to make a customer stream out of your bathroom, you may open yourself to con law issues because you've become a public forum.

if race consciousness is a bad thing, why let people have it?
why assign

state requirement is a "hydrolic check"

shelly v. kramer - racial covenant between HOA
if the shelleys had refused to sell to the shelleys, no con law issue (private)
they sell - no con law issue
animosity of the neighbors -- no con law issue
the neighbors go to court for an injunction -- now, a con law issue under 14th amd't

the potential is overbroadness from shelley v. kramer -- cause the parties can always call the cops...

pre-civil rights cases, lunch counter issues were trespass
bell v. MD: pre civil rights... is this the same as shelley v. kramer? no, because shelley is changing private ordering, and bell is supporting the private desires of the diner owner (though, after 1965, the diner owner would have statutory problems in discriminating sales)

you can find a gov't actor in the storyline in these kind of cases.

congressional power.
shurbert v. verner -- religious limits act is passed (sherbert test)

14th amd't, s. 5:
n.b. -- when US quotes marbury, they are really kickin their supremacy

con law: april 28 2010 class notes

oh, first amendment! let's recap you... 

NAACP v. AL

girls are stupid....

US v. the jaycees: "it's not a marriage, it's a lunch club. it's not a religious event, it's a meeting." we're out of the intimate stage, but we're in the public stage, like with the NAACP case: how does the court reconcile without infringing on the organization? jaycees is about developing young men, and it's not changed by letting young women participate and vote on the board. is that persuasive or is it clutter?

1) the jaycee's side of an issue isn't changed by who's aprt of the voting base... that's an empirical proposition, just an assertion public association is important for later cases

2) assumption is being made that gender’s not being used to deliver anything unique in this situtation that we can point to

public association is important for later cases, and somewhat of a watermark to the association interests

boy scouts v. dale: homos are creepy....

does dale shake you when you compare to lawrence v. TX?

trying to make a distinction between public and private: moral judgment isn't the laws, but the boy scouts. criminal law proceeds from moral disapproval in lawrence, and that's not cool. but in dale, BSA (like KKK...) get to make certain discriminatory choices and decisions 

remember, private discrimination is totally cool. but public figures are connected to public dimensions (speaker to audience, writer to readership, etc). 

to help patrick kondas: freedom of association 

things that go to the heart of our existing social order...

minersville school dist v. gobitis

WV board of education v. barnette

an advocacy position on the value of jehovah's witnesses contributions... 

wooley v. maryland. live free or die. what's the legal battle? why do we care? 

are we actually talking about religion for the first time, or have we been talking about religion all along? 1st amendment brings religion up, but we're pressing for a definition: is it an organized, facilitated thign? is it broader than that -- a religion without a house of worship, without even a god? is it every idea that you have that's dear to you (i like tofu... go obama... i like rumsfeld...) supreme court does not have a clear view or application for the religion clause, from old days to today. and it's worse in this world of incorporation in some ways, because all the states must play by the same rules.

so free exercise... 

neutral laws and effects on free exercise.

sherbert v. verner: strict scrutiny

the sherbert test held basically until employment v. smith

in the smith case, US chucks this out of the window. 

the establishment clause 

the lemon test, under the establishment clause and lemon 

this is the most criticized test... nobody likes lemon