Recent Constitutional Law Decisions on the Bar Exam
President Joe Biden signed the Respect for Marriage Act into law at a White House ceremony yesterday. The legislation codified same-sex and interracial marriage into law.
The Respect for Marriage Act received bipartisan support from Congress, especially after the U.S. Supreme Court overturned Roe v. Wade, which sparked questions whether the nation’s highest court would also reconsider other existing rights around marriage equality.
After all, Justice Clarence Thomas, in a concurring opinion in Dobbs v. Jackson Women's Health Organization, argued that the Supreme Court “should reconsider” its past rulings codifying rights to contraception access, same-sex relationships and same-sex marriage.
SCOTUS released the Dobbs opinion, which overturned Roe v. Wade, on June 24, 2022—just 32 days before the July 2022 bar exam.
That same day, the National Conference of Bar Examiners released an announcement, stating that “Examinees taking the NCBE-developed July 2022 MBE, MPT, and MEE will not be required to be familiar with this term's US Supreme Court decisions.”
The NCBE hasn't made a similar announcement for the February 2023 bar exam, so one can only assume that the recent decisions are fair game on the bar exam (though there might be drafting and test validity and reliability obstacles that might prevent questions to appear on this administration of the bar exam—particularly on the MBE, other than part of the 25 unscored pretest questions).
As you’re studying for the February 2023 bar exam, make sure the Constitutional Law materials reflect SCOTUS’s decisions from Summer 2022.
The most important changes are (1) the overturning of Roe v. Wade, and (2) the eliminating of the Lemon test.
Overturning of Roe v. Wade: As noted above, the Dobbs case overruled the line of cases that recognized abortion as a fundamental right and constitutionally protected a woman’s right to obtain an abortion. The matter is now left to the states to legislate. SCOTUS has stated that laws restricting abortions are entitled to a “strong presumption of validity” under rational basis review. Further, SCOTUS has identified several legitimate state interests that can support a restriction—e.g., respecting and preserving prenatal life at all stages of development; protecting maternal health and safety; eliminating “particularly gruesome or barbaric medical procedures”; preserving the integrity of the medical profession; mitigating fetal pain; and preventing discrimination based on race, gender, or disability.
Eliminating the Lemon test: Although SCOTUS hasn’t explicitly overruled prior cases, it has turned away from earlier approaches to the Establishment Clause. Therefore, answers referencing language from the Lemon test—including references to having the primary purpose or effect of advancing or inhibiting religion or excessively entangling church and state—will likely be incorrect.
