GA Bar Constitutional Rights and Liberties 3 — Questions and Answers
Question 1: Under the Lemon test, a law regulating religion violates the Establishment Clause unless it:
- Has a secular legislative purpose, its principal effect neither advances nor inhibits religion, and it does not foster excessive government entanglement with religion (Correct answer)
- Is neutral on its face and applies equally to all religious and non-religious groups
- Passes strict scrutiny by being narrowly tailored to a compelling secular interest
- Was enacted without any legislative history referencing religion
Correct answer: Has a secular legislative purpose, its principal effect neither advances nor inhibits religion, and it does not foster excessive government entanglement with religion
Lemon v. Kurtzman (1971) requires that a law have a secular purpose, a neutral primary effect on religion, and avoid excessive entanglement — failure on any prong is unconstitutional.
Question 2: Under Employment Division v. Smith (1990), a neutral law of general applicability that incidentally burdens religious practice:
- Must satisfy strict scrutiny because it burdens a fundamental right
- Is constitutional and need not be justified by a compelling government interest (Correct answer)
- Is unconstitutional unless the government provides a religious exemption
- Must pass intermediate scrutiny to be upheld
Correct answer: Is constitutional and need not be justified by a compelling government interest
Smith held that neutral, generally applicable laws that incidentally burden religion need only satisfy rational basis review and do not require religious exemptions.
Question 3: A state law classifies people based on sex. Under equal protection, the correct level of scrutiny is:
- Rational basis — sex is not a suspect classification
- Strict scrutiny — sex is a quasi-suspect classification requiring compelling justification
- Intermediate scrutiny — the classification must be substantially related to an important government interest (Correct answer)
- Heightened rational basis — the state must show the law is reasonably related to a legitimate interest
Correct answer: Intermediate scrutiny — the classification must be substantially related to an important government interest
Under Craig v. Boren (1976), sex-based classifications are quasi-suspect and subject to intermediate scrutiny requiring a substantial relationship to an important government interest.
Question 4: Which of the following is a fundamental right triggering strict scrutiny under substantive due process?
- The right to welfare benefits
- The right to interstate travel (Correct answer)
- The right to employment in a chosen occupation
- The right to affordable housing
Correct answer: The right to interstate travel
The right to travel interstate is a recognized fundamental right under the Constitution, triggering strict scrutiny when government burdens it.
Question 5: Under Mathews v. Eldridge, courts balance three factors to determine what process is constitutionally due before the government deprives someone of a protected interest. Those factors are:
- Government efficiency, individual dignity, and risk of error
- Private interest, risk of erroneous deprivation and value of additional procedures, and government interest (Correct answer)
- Severity of deprivation, availability of post-deprivation remedies, and government burden
- Type of benefit, likelihood of mistake, and cost to taxpayers
Correct answer: Private interest, risk of erroneous deprivation and value of additional procedures, and government interest
Mathews v. Eldridge (1976) balances: (1) the private interest at stake, (2) the risk of erroneous deprivation and the value of additional procedures, and (3) the government's fiscal and administrative burden.
Question 6: The Equal Protection Clause applies most directly to state action. Which constitutional provision makes it applicable to the federal government?
- The Privileges or Immunities Clause of the Fourteenth Amendment
- The Fifth Amendment's Due Process Clause, via reverse incorporation (Correct answer)
- The Supremacy Clause
- The Tenth Amendment's reservation of rights to the states
Correct answer: The Fifth Amendment's Due Process Clause, via reverse incorporation
Bolling v. Sharpe (1954) held that equal protection principles apply to the federal government through the Fifth Amendment's Due Process Clause via reverse incorporation.
Question 7: A state law affirmatively acts to enforce a private discriminatory covenant. Under the state action doctrine, this is unconstitutional because:
- Private discrimination is itself prohibited by the Fourteenth Amendment
- Judicial enforcement of private discriminatory agreements constitutes state action (Correct answer)
- The state violated the Thirteenth Amendment by perpetuating badges of slavery
- Property rights cannot be limited by race under the Contracts Clause
Correct answer: Judicial enforcement of private discriminatory agreements constitutes state action
Shelley v. Kraemer (1948) held that court enforcement of racially restrictive covenants constitutes state action sufficient to trigger Fourteenth Amendment review.
GA Bar Constitutional Rights and Liberties 3
Under the Lemon test, a law regulating religion violates the Establishment Clause unless it: