MBE Tip of the Day: Constitutional Law
Welcome to our MBE tip of the day series. This post focuses on Constitutional Law. In light of the holiday season, we have a holiday-themed Constitutional Law MBE question.
You will see 25 scored Constitutional Law MBE questions on the Multistate Bar Exam. In this post, we will review a Constitutional Law MBE question together. Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. This is a great MBE resource (not to mention a free MBE resource!). If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
MBE Tip of the Day Instructions:
Do your best to answer this Constitutional Law MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? What is the rule and analysis? What is the conclusion? To make the most of this MBE question, try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
Constitutional Law MBE Question
A man was driving home from work one cold December day and noticed a large, heavily decorated Christmas tree sitting outside of the city hall. The Christmas tree stood alone, was brightly lit with Christmas lights, and had several red and green ornaments decorating it. There were no other holiday or religious symbols on the city grounds. The man, who practices Judaism and who is a taxpayer in the city, was offended. He sued the city, arguing that the city exceeded its constitutional limits in erecting the Christmas tree.
Assuming the man has standing, will the man prevail in his lawsuit?
(A) Yes, because the city’s display violates the free exercise clause of the First Amendment.
(B) Yes, because the city’s display violates the establishment clause of the First Amendment.
(C) No, because the city may engage in free speech and spread whatever message it desires to so long as it does not prohibit private citizens from engaging in the same free speech.
(D) No, because the city’s display does not violate the First Amendment.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Answer to the Constitutional Law MBE question
Subject: Constitutional Law
Legal Issue: Whether the city’s display of a Christmas tree violates the First Amendment.
Legal Rule and Analysis: The Supreme Court has held that a Christmas tree is not a religious symbol. It has stated that although a Christmas tree once carried religious connotations, today Christmas trees are secular. They are ubiquitous among Christians and non-Christians. (It would be different if the city had a sole menorah or nativity scene without further decorations as this would violate the First Amendment, but a Christmas tree standing alone does not.)
Conclusion: The city’s public display of a Christmas tree does not violate the First Amendment.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. (D) is the correct answer. (A) is incorrect because the free exercise clause is not at issue. The free exercise clause is at issue when a state tries to regulate someone’s religious beliefs or conduct. Here, the city is not aiming to regulate or control the beliefs or conduct of anyone. (B) is incorrect. (B) properly recognizes that the establishment clause is at issue but it answers the question incorrectly. So long as the government does not favor one religion over another or favor religion over non-religion, the establishment clause is not violated. Erecting a Christmas tree, a secular symbol, does not favor Christianity over other religions, according to the Supreme Court, as Christmas trees are widespread among all Americans, regardless of faith. (C) is incorrect because while the city may generally engage in free speech, there is sometimes a collision between the right to speak and the establishment clause. Thus, while the city may “speak” it may not do so if its speech favors one religion over another or favors religion over non-religion.
MBE Tip: Constitutional Law is a “global” subject since there are a lot of overlapping pieces – particularly in areas of free speech and other areas of the First Amendment. If it is difficult for you to keep track of all of the parts of the law that sometimes intersect, try making a free speech or First Amendment diagram. This will help you particularly if you are a visual learner. You can add to the diagram as you come across problems that stump you.
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: A Christmas tree, standing alone, is not considered a religious symbol. Thus, government entities may display Christmas trees without violating the First Amendment.
MBE Tip: If it is difficult for you to keep track of all of the parts of the law that sometimes intersect, try making a free speech or First Amendment diagram.
Want to See Past MBE Tip of the Day Posts?
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
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