CNST 4795 Final

To be a fundamental unenumerated right it has to be:

"implicit in the concept of ordered liberty" (Palkco v. Connecticut 1937), or "deeply rooted in this Nation's history and tradition" (Moore v. East Cleveland, 1977) If the right is not, it is not fundamental - and government only has to show that the regulation in question is reasonably related to a legitimate state interest.

Missouri Ex Rel Gaines v. Canada (Missouri, 1938)

Missouri had no black law school and offered to pay out of state law school tuition SCOTUS held - Missouri had to provide black and white law schools

MLK, JFK, LBJ, National Unrest; Commerce Clause and 14th Amendment Prohibited racial discrimination in places of public accommodation, federally funded programs, and employment discrimination relating to interstate commerce on the basis of race, color, religion, and national origin.

1964 Civil Rights Act

Protects against racial minorities from discriminatory voting practices. - American's With Disabilities Act 1990

1965 Voting Rights Act

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. Congress shall have power to enforce this article by appropriate legislation.

19th Amendment

1955 Interstate Commerce Commission

Bans racial segregation in interstate buses, traines, and waiting rooms

Brown II (1955)

After Brown I, the Court held how its decision was to be enforced Local school authorities were to apply Brown principles "with all deliberate speed" Federal District Courts were to review whether school actions constituted good faith implementation of the governing constitutional principles.

"[W]hen circumstances occur after birth such that they would have justified abortion, what we call after-birth abortion should be permissible. ... [W]e propose to call this practice 'after-birth abortion', rather than 'infanticide,' to emphasize that the moral status of the individual killed is comparable with that of fetus... rather than to that of a child. Therefore, we claim that killing newborn could be ethically permissible in all circumstances where abortion would be. Such circumstances include cases where the newborn has the potential to have an (at least) acceptable life, but the well-being of the family is at risk."

Alberto Giubilini and Francesca Minerva in the Journal of Medial Ethics (2012-2013)

"The Senators and Representatives... and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath of Affirmation, to support this Constitution; "but no religious test shall ever be required as a Qualification to any Office or public Trust under the United States."

Article VI, Section 3

"We shall be divided by our little partial local interests; our projects will be confounded; and we ourselves shall become a reproach and by-word down to future ages... I therefore beg leave to move - that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the clergy of this city be requested to officiate in that service." - Did not pass; pay clergy, settled on a Fourth of July sermon.

Ben Franklin at Federal Constitutional Convention, June 28, 1787

"The fundamental concept of liberty embodied in [the 14th] Amendment embraces the liberties guaranteed by the First Amendment," including "--freedom to believe and freedom to act. The first is absolute, but, ... the second cannot be. Conduct remains subject to regulation for the protection of society. ... In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom."

Cantwell v. Connecticut (1940)

"these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." "To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in ways unlikely ever to be undone." "We conclude that, in the field of public education, the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment."

Chief Justice Earl Warren - Brown v. Board of Education of Topeka, Kansas (1954)

"The majority's decision is an act of will, not legal judgement. This right it announces has no basis in the Constitution or this Court's precedent. The majority expressly disclaims judicial 'caution' and omits even a pretense of humility, openly relying on its desire to remake society according to its own 'new insight' into the 'nature of injustice.' ... As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and Aztecs. Just who do we think we are?"

Chief Justice John Roberts dissent - Obergefell v. Hodges (2015)

"The Court distorts existing precedent to conclude that the school district's student-message program is invalid on its face under the Establishment Clause. But even more disturbing that its holding is the tone of the Court's opinion: it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause..." Student Election - struck down on its face "But it is possible that the students might vote not to have a pregame speaker, in which case there would be no threat of a constitutional violation. It is also possible that the election would not focus on prayer, but one public speaking ability or social popularity. And if student campaigning did being to focus on prayer, the school might decide to implement reasonable campaign restrictions."

Chief Justice Rehnquist Dissent - Santa Fe School District v. Jane Doe (Texas- 2000)

"Congress was deprived of all legislative power over mere [beliefs &] opinion, but was left free to reach actions which were in violation of social duties or subversive of the good order." "In our opinion, the statute ... is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories..." "This being so, the only question which remains is whether those who make polygamy a part of their religion are excepted from the operations of the statute. ... This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. ... Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

Chief Justice Waite - Reynolds v. United States (1874)

"... a State's interest in universal education, however highly we rank it, is not totally free form a balancing process when it impinges on fundamental rights and interests, such as those [of]... the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they 'prepare [them] for additional obligations.'" For a state "to compel school attendance ... against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that [1] the State does not deny the free exercise of religious belief by its requirement or that [2] there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause."

Chief Justice Warren Burger - Wisconsin v. Yoder (1972)

"We conclude, therefore, that because the University's use of race in its current freshman admissions policy is not narrowly tailored to achieve respondent's asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment. We further find that the admissions policy also violate Title VI."

Chief Justice William Rehnquist - Gratz v. Bollinger (2003)

"... Congress shall make no law respecting an establishment of religion."

Establishment Clause of the First Amendment

"Indeed, religious liberty, and all of the fulfillment of the soul and tranquility of conscience that that phrase conveys, is impossible to fully enjoy, unless religious tolerance is first embraced by society and enshrined in the nation's fundamental law. Otherwise, history has shown that sooner or later, a political majority will arise and ban all religious beliefs, views, and acts of worship contrary to its compulsory tenets." "The No Religious Test Clause of Article VI of the Constitution and the Free-Exercise Clause and Establishment Clause of the First Amendment, were not ratified to eliminate religion from the public square, but to prevent one state religion from limiting or banning the religious liberty of the nation's religious minorities. These constitutional provisions were not meant to protect government from religion, but to protect religion from government. They were not meant to prohibit, limit, or chill religious liberty (including expression and association), but to ensure that the people's free-exercise of religion would carry on throughout the ages."

Dr. Griffin's John Jay Manuscript

"But to say that a nondiscriminatory religious practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts." "Because respondents' ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon may, consistent with the Free Exercise Clause, deny respondents unemployment compensation when their dismissal results from use of the drug."

Employment Division of Human Resources of Oregon v. Smith (1990)

Torcaso v. Watkins (1961)

Facts Article 37 of the Declaration of Rights of the Maryland Constitution provides: "[N]o religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God..." Government of Maryland appointed Roy Torcaso to the office of Notary Public Torcaso did not declare a belief in God and was denied his commission pursuant to the State Constitution. Torcaso brought suit for his commission under Article VI Clause and the 14th Amendment Maryland Circuit (trial) Court upheld Maryland Constitution Maryland Court of Appeals affirmed Torcaso appealed to SCOTUS Issue: Is the Maryland statute a Religious Test prohibited under Article VI of the US Constitution and the 14th Amendment? Holding: Not answered. Reversed under the 1st Amendment rather than Article VI

The Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)

Facts CLBA practiced - animal sacrifices as part of the Afro-Caribbean-based religion of Santeria City of Hialeah - concerned about the CLBA practices passed ordinances prohibiting the possession of animals for ritual slaughter or sacrifice. City argued it sought to protect the public health and prevent cruelty to animals, both legitimate governmental interests. DCRT and Court of Appeals upheld the city ordinances; SCOTUS granted Certiorari. Issue: Did the city ordinance violate the FEC of the First Amendment and 14th Amendment? Holding: Yes. Reversed. City targeted church's main element of religious practice.

Burwell v. Hobby Lobby Stores, Inc (2014)

Facts The Greens - own Hobby Lobby Stores, Inc., (with 13,000 employees) As a private company - HLS functions by Christian principles that four abortion-related contraceptives are a sin The Patient Protection and Affordable Care Act (ACA) - mandates that employment-based group health care plans provide contraceptives. ACA grants - exemptions for religious employers and non-profit religious institutions, but not for for-profit institutions like HLS. The Greens brought suit - under FEC of the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA) for a preliminary injunction to halt the tax penalties. DCRT - denied that relief and the U.S. 10th Circuit - affirmed The en banc panel of the Court of Appeals - reversed, holding that corporations were "persons" for the purposes of RFRA and had protected rights under the FEC of the First Amendment Issue: Does the ACA mandate for the said contraceptives violate RFRA and the FEC of the First Amendment? Holding: Yes. Affirmed ACA requirement forced religious corps to fund what they considered to be abortion contraceptives - a sin, or to be fined, creating a substantial burden that was not the least restrictive means of advancing the legitimate government interest. The least restrictive means - was for the government to provide an exemption for for-profit corporations, like it does for non-profit religious organizations.

Engel v. Vitale (New York - 1962)

Facts: Board of Education New Hyde Park, New York - directed the following prayer to be said aloud in presence of the teacher each day: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." Prayer was - denominationally and neutral, and pupils could remain silent to be excused from the room during it. Vitale and other parents - sued stating it violated their "beliefs, religion, or religious practices" under the First Amendment. New York Trial Court and New York Court of Appeals - ruled for the School Board as long as it did not compel students to pray. Issue: Does the New York school's voluntary and noncompulsory nonsectarian, state-sponsored school prayer violate the Establishment Clause of the First Amendment (applied to the States via the 14th Amendment)? Holding: Yes, reversed; it's an endorsement of religion (even if it's noncompulsory)

Mapp v. Ohio (1961)

Facts: Cleveland police arrived at Dollree Mapp's house on information that bombing suspects and gambling paraphernalia was present. Police knocked on the door and demanded entrance - Mapp called attorney and denied their command without a search warrant. Police surveilled the house. Three hours later, with additional officers, the police demanded entrance again, before forcibly entering the premises. Mapp demanded to see the search warrant, police held up a piece of paper, Mapp takes it, and Police arrest her for being belligerent. Mapp's attorney had arrived, but was not permitted to see his client or to enter the house. Ohio Trail Court - convicted Mapp for obscene material found during the warrantless search. Mapp appeals to Ohio SCRT - which upheld the lower court stating that "even if the search were made without authority, or otherwise unreasonably, it is no prevented from using the unconstitutionally seized evidence at trial" see Wolf v. Colorado (1949) Mapp appeals to SCOTUS Issue: Does the Fourth Amendment's Exclusionary Rule apply to the states via the Fourteenth Amendment Due Process Clause; thus, excluding illegally gained evidence in state criminal matters? Holding: Yes, reversed (reversed Ohio SCRT and Wolf v. Colorado as it applies to the exclusionary rule, it now applies to the states too.

Browers v. Hardwick (1986)

Facts: Defendant was cited - for open container, failed to show, bench warrant was ordered Police were - let in and sent to bedroom to see Defendant Defendant was found - in acts that violated Georgia Sodomy Statute DA decided not to prosecute But defendant - brought suit challenging the statute District Court - dismissed the suit; Circuit court reversed. Issue: Does the Georgia anti-sodomy law violate a fundamental right to consensual homosexual sodomy protected by the 14th Amendment? Holding: No, reversed, sodomy is not a fundamental right protected by the Constitution

Griswold v. Connecticut (1965)

Facts: Estelle Griswold, Executive Director of Planned Parenthood in Connecticut, gave contraceptives to married couples in violation of Connecticut Law. Connecticut Trial Court - Convicted her and fined her $100 Connecticut Court of Appeals and Connecticut Supreme Court - both upheld the conviction Griswold - appealed to SCOTUS Issue: Does the Connecticut statute violate privacy protected by the U.S. Constitution? Holding: Yes, reversed. There is no general right to privacy, but the U.S. Bill of Rights has penumbras, or zones of privacy. Taken together, the 1st, 3rd, 4th, 5th, 9th, and 14th Amendments create a right to privacy in marital relations.

Cooper v. Aaron (1958)

Facts: 1957 Arkansas Governor, Orval Faubus, blocks "Little Rock Nine" Ike sends troops and challenged Brown holding under 10th Amendment DCRT found for Arkansas; Eighth Circuit Reversed Issue: Can a state ignore the court order dealing with desegregation? Holding: No. SCRT interprets constitution; Brown was the Supreme Law of the Land (Article VI)

Employment Division of Human Resources of Oregon v. Smith (1990)

Facts: Alfred Smith and Galen Black - were fired from a private drug rehabilitation organization for ingesting peyote as part of religious ceremony for a Native American Church. What was their jobs? - Drug Rehab Smith and Black received no unemployment compensation because discharged for work-related "misconduct." Smith and Black argue violation of FEC of the 1st Amendment; Oregon Trial Court - ruled for the State Oregon Court of Appeals reversed. Oregon SCRT affirmed; State appealed to SCOTUS Issue: Did Oregon's denial of unemployment benefits to those fired for using illegal drugs for religious purposes violate the 1st and 14th Amendments? Holding: No, reversed

Regents... University of California v. Bakke (California 1978)

Facts: Allan Bakke, white man, twice rejected to University of California Medical School at Davis Bakke had better scores than 16 spots reserved for minority candidates Bakke argued he was denied on the basis of race violating the 14th Amendment, EPC, and the Civil Rights Act of 1964 SCOTUS granted Certriori Issue: Can a school use a (16%) Quota System for Admissions? Holding: No, violated the 14th Amendment Race quota can be one factor of several but not the sole factor and no Quota systems allowed (Reverse Discrimination) Need Compelling State Interest to base policy or law on Race (Strict Scrutiny)

Grutter v. Bollinger (MI - 2003)

Facts: Barbara Grutter (3.3 161 LSAT) was rejected under the University of Michigan's "Critical Mass" Law School Admission Policy Issue: Is Michigan's Policy a quota system and as such in violation of EPC of the 14th Amendment? Holding: No, There's no quota - school's just taking race into account as one factor for diversity

Weeks v. United States (1914)

Facts: Freemont Weeks - was arrested (without a warrant) at work at an express co. in Kansas City, Missouri Other police officers (via neighbor) - found a key and entered defendant's home, searched his room, and turned over his papers to a U.S. Marshall. Later that same day, without a search warrant, the U.S. Marshal and State police entered (via a boarder at the house) and seized additional papers without a search warrant. DCRT - convicted defendant of transporting lottery tickets through the mail in violation of federal law Defendant argued - the arrest and searches violated the Missouri Constitution and U.S. Constitution and appealed to SCOTUS Issue: Did the conviction and seizing of property without a search warrant violate the U.S. Constitution (4th and Fifth Amendments)? Holding: Yes, reversed. SCRT concentrated on the 4th Amendment

Roe v. Wade (TX-1973)

Facts: Jane Roe (Norma McCorvey) - was denied an abortion procedure under Texas law (unless saving the life of the mother) Roe brought suit - against District Attorney of Dallas County (Henry Wade) and sought an injunction District Court recognized - a right but did not grant the injunction Both sides appealed to SCOTUS Issue: Does a woman have a right to an abortion under the fundamental liberty of the Due Process Clause of the 14th Amendment? Holding: Yes. But not an unqualified right.

Wisconsin v. Yoder (1972)

Facts: Jonas Yoder & other Old order Amish and Amish Mennonite parents are convicted of violating Wisconsin's compulsory school attendance law (until age 16) by withdrawing children after 8th grade (okay to that point) For High School was "contrary to the Amish religion and way of life" and threaten Amish communities and salvation for the parents and children. Wisconsin Trial Court held tried and Convicted defendant's, holding the law was a "reasonable and constitutional" exercise of governmental power. Wisconsin Circuit Court affirmed; Wisconsin Supreme Court reversed trial court's conviction; SCOTUS granted writ of certiorari Issue: Did the Wisconsin statute that compelled children to attend high school until 16 years-of-age violate the Free Exercise Clause of the 1st Amendment applied to states via 14th Amendment DPC? Holding: Yes, affirmed - violation of 1st & 14th

Wolf v. Colorado (1949)

Facts: Julius Wolf, et. al. - were charged with conspiracy to perform an abortion Colorado Trial Court - convicted them Colorado Supreme Court - upheld all three convictions, even though the evidence would have been inadmissible under federal law in a federal court. Issue: Did a conviction by a State court for a State offense violate the "due process of law" requirement of the Fourteenth Amendment, because evidence admitted would have been inadmissible under federal law in a court of the United States? In other words, did the Weeks' "Exclusionary rule" apply to the states, via the Fourteenth Amendment? Holding: No. The Court applied Fourth Amendment unreasonable search and seizure requirement, but not Weeks exclusionary rule. Unconstitutionally attained evidence can still be used in a state prosecution

Plessy v. Ferguson (1896)

Facts: LA law called for "equal but separate accommodations for the white and colored races" (two cars or curtain) Committee of citizens targeted the law Homer Plessy, only 1/8th Black, rode in whites only car and was arrested when he said he was black. Homer argued the Act violated the 13th and 14th Amendments State trial court convicted him of violating the Act. Homer appealed to the SCOTUS Issue: Did the LA Separate Car Act violate the 13th and 14th Amendments? Holding: No. Violates neither amendment. Affirmed.

Brown v. Board of Education of Topeka, Kansas (1954)

Facts: Linda and Oliver Brown of Topeka, Kansas (includes SC, DE, VA cases) Plaintiffs argue racially segregated public schools deprive them of the equal protection of the laws. John W. Davis (states) v. Thurgood Marshall Lower courts used Plessy's doctrine SCOTUS granted Writ of Certiorari Sociological Evidence studies - Separate prong Framers intent revisited (14th Amendment) Chief Justice Fred Vinson dies; Ike appoints Earl Warren How long had Warren been a judge? Issue: Whether segregation of children in public schools solely on the basis of race, even when physical facilities and other tangible factors are equal, violates the 14th Amendment? Holding: Yes, reversed lower courts and Plessy as to public education Sociological evidence showed a feeling of inferiority (psychological harm) which deprived the students of the equal protection of the laws guaranteed by the Fourteenth Amendment.

Gratz v. Bollinger (2003)

Facts: Michigan undergraduate admissions gave 20 Bonus Points for being part of under reprepresented minority applicants Jennifer Gratz argued policy violated 14th EPC and Title VI of CR Act of 1964 SCOTUS granted cert. Issue: Did the University of Michigan's use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the CR ACT of 1964? Holding: Yes. Yes.

Everson v. Board of Education (NJ-1947)

Facts: New Jersey Law - reimbursed parents for transportation costs to all schools (whether it be a public school or a private school) Almost all the private schools - were Catholic schools Taxpayer Arch Everson - challenged the law New Jersey trial court held - the Act violated the Establishment Clause of the 1st Amendment and 14th Amendment New York Court of Appeals - reversed (no violation) Everson appeals - to SCOTUS Issue: Did the New Jersey law that allowed busing reimbursements for parents of both secular and private religious schools violate the Establishment Clause of the First Amendment, applied to the States via the 14th Amendment? Holding: No. Affirmed (and the Establishment Clause of the First Amendment applies to the States via the 14th Amendment via the Due Process Clause). The New Jersey Law - funds were for public purpose, sent directly to parents (taxpayers), and the law treated all schools "neutrally"

Lawrence v. Texas (2003)

Facts: Police responded to weapons disturbance in a private residence Police entered John Lawrence's apartment and saw him and another adult man violating anti-sodomy statute (e.g., oral and anal sex - regardless of gender) Texas courts upheld the statute under Bowers Lawrence appeals to SCOTUS Issue: Does the Texas statute making it a crime for two persons of the same gender to engage in certain intimate sexual conduct violate the DPC of the 14th Amendment? Holding: Yes, reversed

Lee v. Weisman (Rhode Island - 1992)

Facts: Robert E. Lee, Principal at Nathan Bishop Middle School - invited a rabbi to pray at his school's graduation ceremony with guidelines to be "nonsectarian" with "inclusiveness and sensitivity" (a long held practice in middle and high school graduations). Daniel Weisman - a parent of (Deborah) - sought a temporary and then permanent injunction to block such prayers at graduation ceremonies. District Court - granted the permanent injunction and the Court of Appeals affirmed School district appeals to SCOTUS Issue: Does a school policy that invites clergy to offer a "nonsectarian" prayer at public school graduation ceremonies violate the Establishment Clause of the 1st Amendment? Holding: Yes. Affirmed; it's Coercive. New Coercion test.

Obergefell v. Hodges (2015)

Facts: Same sex couples sued in several states regarding state bans against same sex marriages Argued it violated 14th Amendment DPC and EPC Trial courts agreed, Sixth Circuit reversed; SCOTUS granted Certiari Issue: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state? Holding: Yes and Yes.

Santa Fe School District v. Jane Doe (Texas- 2000)

Facts: School district policy allowed two student elections: 1) to determine if a prayer took place prior to high school football games, and 2) to determine who would speak One "Mormon" family and one Catholic family brought suit District Court ordered the policy to be modified to permit only non-sectarian, non-proselytizing prayer. U.S. Fifth Circuit Court of Appeal, held it was a violation of the Establishment Clause; and the School District appealed to SCOTUS, arguing it was not state action but private speech. Issue: Does the School District's policy to have student-led, student-initiated prayer at football games violate the Establishment Clause of the 1st Amendment? Holding: Yes. Speech was not private speech but public state-sponsored prayer, with threats of coercion (see Lee. V. Weisman)

Reynolds v. United States (1874)

Facts: 1 862 Morrill Act is enacted, prohibiting polygamy George Reynolds, a member of the Church of Jesus Christ of Latter-day Saints, married a second wife, while still married to his first wife. And was indicted under said act. Defendant argued it violated the free exercise clause of the First Amendment DCRT held for the government Issue: Is the 1862 Morrill Act in violation of the Free-exercise Clause of the First Amendment? Holding: No, affirmed.

Bolling v. Sharpe (1954)

Facts: Parents seek to racially integrate John Phillip Sousa Jr. High School School Board denied request, parents brought suit, DCRT dismissed. SCRT granted certriori Issue: Did federal law racially segregating public schools in Washington, D.C>, violate the DPC of the Fifth Amendment? Holding: Was not "reasonably related to any proper government objective" Was a restriction of 5th Amendment Liberty; plus It was morally wrong to allow the federal government to but not the states

Section 1 - "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Section 2 - "The Congress shall have power to enforce this article of appropriate legislation

Fifteenth Amendment

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

First Amendment, Free-exercise Clause

"... nor shall any state deprive any person of life, liberty, or property, without due process of law;..."

Fourteenth Amendment - Section 1

"The right of the people to secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Fourth Amendment

"I consider the clause under consideration as one of the strongest proofs that could adduced, that it was the intention of those who formed this system to establish a general religious liberty in America. Were we to judge from the examples of religious tests in other countries, we should be persuaded that they do not answer the purpose for which they are intended."

Mr James Iredell - North Carolina Ratifying Convention, July 30, 1788

Presidents have had days of prayer since the beginning of the republic; "IN GOD WE TRUST" has been put on our coins since 1865; "The Star-Spangled Banner," made the National Anthem in 1931, refers to God blessing and rescuing our land, and our trust in God; Congress added the words "on Nation under God, indivisible, with liberty and justice for all" to Pledge of Allegiance in 1954. Supreme Court stands for "God save the United States and this Honorable Court," and held in Zorach v. Clauson (1952): "We are a religious people whose institutions presuppose a Supreme Being." "I do not believe that this Court, or Congress, or the President has, by the actions and practices I have mentioned, established an 'official religion' in violation of the Constitution. And I do not believe that State of New York has done so in this case. What each has done has been to recognize and to follow the deeply entrenched and highly cherished spiritual traditions of our Nation -- traditions which come down to us from those who almost two hundred years ago avowed their 'firm Reliance on the Protection of divine Providence' when they proclaimed the freedom and independence of this brave new world."

Griffin's summary of Justice Stewart's examples from U.S. History - Engel v. Vitale (New York - 1962)

"Mr. Iredell.... Every person in the least conversant in the history of mankind, knows what dreadful mischiefs have been committed by religious persecutions. Under the color of religious tests, the utmost cruelties have been exercised. Those in power have generally considered all wisdom centered in themselves; that they alone had a right to dictate to the rest of mankind; and that all opposition to their tenets was profane and impious." "The consequence of this intolerant spirit had been, that each church has in turn set itself up against every other and persecutions and wars of the most implacable and bloody nature have taken place in every part of the world. American has set an example to mankind to think more modestly and reasonably - that a man may be of different religious sentiments form our own, without being a bad member of society. The principles of toleration, to the honor of this age, are doing away those errors and prejudices which have so long prevailed, even in the most intolerant countries."

Henry Abbott - Debate in North Carolina Ratifying Convention, July 30, 1788

"Some are afraid, Mr. Chairman, that, should the Constitution be received, they would be deprived of the privilege of worshipping God according to their consciences, which would be taking from them a benefit they enjoy under the present constitution. They wish to know if their religious and civil liberties be secured under this system, or whether the general government may not make laws infringing their religious liberties. The worthy member from Edenton [James Iredell] mentioned sundry political reasons why treaties would be the supreme law of the land. It is feared, by some people, that, by the power of making treaties, they might make a treaty engaging with foreign powers to adopt the Roman Catholic religion in the United States, which would prevent the people from worshipping God according to their own consciences." "We ought to be suspicious of our liberties. We have felt the effects of oppressive measures, and know the happy consequences of being jealous of our rights. ... Could I be convinced that the objections were well founded, I would then declare my opinion against the Constitution. ..."

Henry Abbott - Debate in North Carolina Ratifying Convention, July 30, 1788

Gonzales v. Carhart (2007)

Issue: Did the Partial-Birth Abortion Ban Act of 2003 violate personal liberty protected by the Fifth Amendment? Holding: No - SCOTUS upheld partial-birth abortion ban (was not unconstitutionally vague and no undue burden); thus, didn't violate the 5the amendment liberty

"the civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed."

James Madison's Proposed Amendments to the House on May 8, 1789

"... at time when we hear the greatest monarch upon earth declaring from his throne that the glories in the name of Briton and that the privileges of his people are darer to him than the most valuable prerogatives of his crown; and as it is in opposition ot a kind of power, the exercise of which in former periods of history cost one king of England his head and another his throne." "The only principles of public conduct that are worthy of a gentleman or a man are to sacrifice estate, ease, health, and applause, and even life, to the sacred calls of his country." "A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient." "No Act of Parliament can establish such a writ; though it should be made in the very words of the petition, it would be void. An act against the constitution is void."

James Otis

"And I take opportunity to declare that... I will to my dying day oppose, with all the powers and faculties of God has given me, all such instruments of slavery on the one hand and villainy on the other as this Writ of Assistance is."

James Otis

"Everyone knows that the statute in question had its origin... no so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons." "But in view of the Constitution, in the eyes of the law, there is in this country to superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights is guaranteed by the supreme law of the land are involved." "In my opinion, the judgement this day... will... be... as pernicious as the decision made by this tribunal in the Dred Scott Case." "The sure guarantee of the peace and security of each race is clear, distinct, unconditional recognition by our governments, National and State, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race."

John Marshall dissent - Plessy v. Ferguson (1896)

Under Smith decision

Now if a law burdens religious practice, but is neutral towards religious practice and generally applied, it is constitutional

"The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which 'establishes a [state] religion or religious faith, or tends to do so.' ... Everson v. Board of Education (1947). The State's involvement in the school prayers challenged today violates these central principles." "We need not look beyond the circumstances of this case to see the phenomenon at work. The undeniable fact is that the school district's supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion." "The sole question presented is whether a religious exercise may be conducted at a graduation ceremony in circumstances where, as we have found, youn graduates who object are induced to conform. No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise. That is being done here, and it is forbidden by the Establishment Clause of the First Amendment."

Justice Anthony Kennedy - Lee v. Weisman (Rhode Island - 1992)

Exception: But a student-initiated, student-led prayer may be constitutional Some circuits have recognized it; some have not. "We do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show violation."

Justice Anthony Kennedy - Lee v. Weisman (Rhode Island - 1992)

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."

Justice Anthony Kennedy - Obergefell v. Hodges (2015)

"Our review confirms that the laws in question were enacted by officials who did not understand, failed to perceive, or chose to ignore the fact that heir official actions violated the Nation's essential commitment to religious freedom. The challenged laws had impermissible object; and in all events the principle of general applicability was violated because the secular ends asserted in defense of the laws were pursued only with respect to conduct motivated by religious beliefs. We invalidate the challenged enactments and reverse the judgement of the Court of Appeals."

Justice Anthony Kennedy - The Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)

"I agree with the Court that Connecticut's birth control law unconstitutionally intrudes upon the right of marital privacy.... Although I have not accepted the view that "due process," as used in the Fourteenth Amendment, incorporates all of the first eight Amendments... My conclusion [is] that the concept of liberty is not so restricted, and that it embraces the right of marital privacy, though that right is not mentioned explicitly by the Constitution, is supported both by numerous decisions of this Court, ... and by the language and history of the Ninth Amendment."

Justice Arthur Goldberg - Griswold v. Connecticut (1965)

A statute which implies merely a legal distinction between white and colored races... has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude" [in violation of the 13th amendment] "The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law..." "... we think the enforced separation of the races, as applied to the internal commerce of the State [does not deny the colored race]... the equal protection of the laws...." "... we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures."

Justice Billings Brown - Plessy v. Ferguson (1896)

"This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general, and the State's refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means. "Until today, I thought this was a settled and inviolate principle of this Court's First Amendment jurisprudence. The majority, however, perfunctorily dismisses it as a 'constitutional anomaly'..., and... Yoder... as 'hybrid'. ... In short, if effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution. "One hopes that the Court is aware of the consequences, and that its result is not a product of overreaction to the serious problems that country's drug crisis has generated."

Justice Blackmun (with Justices Brennan and Marshall) dissent. - Employment Division of Human Resources of Oregon v. Smith (1990)

"It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots." "... Sodomy was a criminal offense at common law, and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. "In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States of the Union had criminal sodomy laws. "In fact, until 1961, all 50 States outlawed sodomy, and today, States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. "...Against this background, to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is at best, facetious."

Justice Byron White - Browers v. Hardwick (1986)

"We hold, therefore, that, in a prosecution in a State court for a State crime, the Fourteenth Amendment does not forbid the admission of evidence obtained by unreasonable search and seizure."

Justice Felix Frankfurter - Wolf v. Colorado (1949)

"... We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation." 1st Trimester - State Can't Ban 2nd Trimester - State Can Reasonably Regulate 3rd Trimester - State Can Prohibit (unless it's a Mother Health Issue) "The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests."

Justice Harry Blackmun - Roe v. Wade (TX-1973)

"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability [about 7 months]. This is so because the fetus then presumably has the capability of meaningful life outside a mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother."

Justice Harry Blackmun - Roe v. Wade (TX-1973)

"But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion." "To those who may subscribe to the view that, because the Regents' official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, ... it may be appropriate to say in the words of James Madison, the author of the First Amendment: ' [I]t is proper to take alarm at the first experiment on our liberties... Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?' "The judgement of the Court of Appeals of New York is reversed..."

Justice Hugo Black - Engel v. Vitale (New York - 1962)

"We think that, by using its public school system to encourage recitation of the Regent's prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause." "The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not."

Justice Hugo Black - Engel v. Vitale (New York - 1962)

"Municipally owned transportation system undertakes to carry all school children free of charge. ... [T]he First Amendment ... requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them."

Justice Hugo Black - Everson v. Board of Education (NJ-1947)

"The 'establishment of religion' clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organization or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.' [Reynolds]"

Justice Hugo Black - Everson v. Board of Education (NJ-1947)

"The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here."

Justice Hugo Black - Everson v. Board of Education (NJ-1947)

"[W]e cannot say that the First Amendment prohibits New Jersey from spending tax raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools." "The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools [similar to police service]"

Justice Hugo Black - Everson v. Board of Education (NJ-1947)

"I am still no persuaded that the Fourth Amendment, standing alone, would be enough to bar the introduction into evidence against an accused of papers and effects seized from him in violation of its commands. For the Fourth Amendment does not itself contain any provision expressly precluding the use of such evidence, and I am extremely doubtful that such a provision could properly be inferred from nothing more than the basic command against unreasonable searches and seizures. "Reflections on the problem, however, in the light of cases coming before the Court since Wolf, has led me to conclude that, when the Fourth Amendment's ban against unreasonable searches and seizures is considered together with the Fifth Amendment's ban against compelled self-incrimination, a constitutional basis emerges which not only justifies, but actually requires, the exclusionary rule."

Justice Hugo Black - Mapp v. Ohio (1961)

"The power and authority of the State of Maryland thus is put on the side of one particular sort of believers -- those who are willing to say they believe in the 'existence of God.'" "We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions based on a belief in the existence of God as against those religions founded on different beliefs." "This Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion, and therefore cannot be enforced against him."

Justice Hugo Black - Torcaso v. Watkins (1961)

"The late Judge Learned Hand, after emphasizing his view that judges should not use the due process formula suggested in the concurring opinions today or ay other formula like to invalidate legislation offensive to their 'personal preferences,' made the statement, with which I fully agree, that: 'For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to chose them, which I assuredly do not.'" "So far as I am concerned, Connecticut's law, as applied here, is not forbidden by any provision of the Federal Constitution as that Constitution was written, and I would therefore affirm."

Justice Hugo Black with Justice Potter Stewart Dissent - Griswold v. Connecticut (1965)

"We now hold only that the District's decision to allow the student majority to control whether students of minority views are subjected to a school-sponsored prayer violates the Establishment Clause. ... Such a system encourages divisiveness along religious lines and threatens the imposition of coercion upon those students not desiring to participate in a religious exercise. Simply by establishing this school-related procedure, which entrusts the inherently nongovernmental subject of religion to a majoritarian vote, a constitutional violation has occurred." "The policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events."

Justice John Paul Stevens - Santa Fe School District v. Jane Doe (Texas- 2000)

"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions."

Justice Kennedy - Lawrence v. Texas (2003)

"The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal."

Justice Lewis Powell - Regents... University of California v. Bakke (California 1978)

"In short, test-laws are utterly ineffectual: they are not security at all; because men of loose principles will, but an external compliance, evade them. If they exclude any persons, it will be honest men, men of principle, who will rather suffer an injury, than act contrary to the dictates of their consciences. If we mean to have those appointed to public offices, who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters; and not rely upon such cob-web barriers as test-laws are."

Oliver Ellsworth, "Landholder, No. 7" Dec. 17, 1787

"With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an 'official religion' is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing the spiritual heritage of our Nation." "For we deal here not with the establishment of a state church, which would, of course, be constitutionally impermissible, but with whether school children who want to begin their day by joining in prayer must be prohibited from doing so. Moreover, I think that the Court's task... of constitutional adjudication is not responsibly aided by the uncritical invocation of metaphors like the 'wall of separation,' a phrase nowhere to be found in the Constitution. What is relevant... is not the history of an established church in sixteenth century England or in eighteenth century America, but the history of the religious traditions of our people, reflected in countless practices of the institutions and officials of our government." "The Court today says that the state and federal governments are without constitutional power to prescribe any particular form of words to be recited by any group of the American people on any subject touching religion."

Justice Potter Stewart dissent - Engel v. Vitale (New York - 1962)

"We hold that regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling governmental interest."

Justice Samuel Alito - Burwell v. Hobby Lobby Stores, Inc (2014)

"[T]he Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body." Are Affirmative Action's Days Numbered? "We expect 25 years from now, the use of racial preferences will no longer be necessary to further the interests approved today"

Justice Sandra Day O'Conner - Grutter v. Bollinger (MI - 2003)

"Because respondents' ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon may, consistent with the [FEC], deny respondents unemployment compensation when their dismissal results form use of the drug. "We have never held that and individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate."

Justice Scalia - Employment Division of Human Resources of Oregon v. Smith (1990)

"As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly ma-nip-ulable, test of psychological coercion... Today's opinion shows more forcefully than volumes of argumentation why our Nation's protection, that fortress which our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people." "The Court... would separate graduation invocations and benedictions from other instances of public 'preservation and transmission of religious beliefs' on the ground that they involve 'psychological coercion.' ... A few citations of '[r]esearch in psychology' that have no particular bearing upon the precise issue here, ... cannot disguise the fact that the Court has gone beyond the realm where judges know what they are doing." "But les us assume the very worst, that the nonparticipating graduate is 'subtly coerced' ... to stand!... The Court acknowledges that 'in our culture standing... can signify adherence to a view or simple respect for the view of others.'... But if it is permissible inference that one who is standing is doing so simply out of respect for the prayers of others that are in progress, then how can it possibly be said that a 'reasonable dissenter ... could believe that the group exercise dignified her own participation or approval'? Quite obviously, it cannot. I may add, moreover, that maintaining respect for the religious observances of others is a fundamental civic virtue that government (including the public schools) can and should cultivate-so that evenif it were the case that the displaying of such respect might be mistaken for taking part of the prayer, I would deny that the dissenter's interest in avoiding even the false appearance of participation constitutionally trumps the government's interest in fostering respect for religion generally."

Justice Scalia dissent - Lee v. Weisman (Rhode Island - 1992)

"The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to the like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice."

Justice Tom Clark - Mapp v. Ohio (1961)

"We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court. ... [O]ur holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also make very good sense. There is no war between the Constitution and common sense. Presently, a federal prosecutor may make no use of evidence illegally seized, but a State's attorney across the street may, although he supposedly is operating under the enforceable prohibitions of the same Amendment. Thus, the State, by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold. ... In non-exclusionary States, federal officers, being human, were by it invited to, and did, as our cases indicate, step across the street to the State's attorney with their unconstitutionally seized evidence. Prosecution on the basis of that evidence was then had in a state court in utter disregard of the enforceable Fourth Amendment. If the fruits of an unconstitutional search had been inadmissible in both state and federal courts, this inducement to evasion would have been sooner eliminated."

Justice Tom Clark - Mapp v. Ohio (1961)

The purpose of the Fourth Amendment was to "put the courts of the United States and Federal officials... under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not..." "The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established be years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. The United States marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution, upon sworn information, and describing with reasonable particularity the thing for which the search was to be made."

Justice William Day - Weeks v. United States (1914)

"Specific guarantee in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. ... Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one... The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of owner... The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause... The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." "The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. ... Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship."

Justice William Douglas - Griswold v. Connecticut (1965)

"[In Reynolds] it was conceded that polygamy was a part of the religion of the Mormons. Yet the Court said, 'It matters not that his belief [in polygamy] was a part of his professed religion: it was still belief, and only belief.'" "Action which the Court deemed to be antisocial could be punished even though it was grounded on deeply held and sincere religious convictions. What do we do today, at least in this respect, opens the way to give organized religion a broader base than it has ever enjoyed, and it even promises that in time Reynolds will be overruled."

Justice William Douglas Dissent - Wisconsin v. Yoder (1972)

"Upon the principles I have stated, I confess the restriction on the power of Congress, in this particular, has by hearty approbation. They certainly have no authority to interfere in the establishment of any religion whatsoever; and I am astonished that any gentleman should conceive they have." "Is there any power given to Congress in matters of religion? Can they pass a single act to impair our religious liberties? If they could, it would be a just cause of alarm. If they could, sir, no man would have more horror against it than myself. Happily, no sect here is superior to another. As long as this is the case, we shall be free from those persecutions and distractions with which other countries have been torn." "If any future Congress should pass an act concerning the religion of the country, it would be an act which they are not authorized to pass, by the Constitution, and which the people would not obey. Every one would ask, 'Who authorized the government to pass such an act? It is not warranted by the Constitution, and is barefaced usurpation.' The power to make treaties can never be supposed to include a right to establish a foreign religion among ourselves, though it might authorize a toleration of others."

Mr James Iredell - North Carolina Ratifying Convention, July 30, 1788

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a Qualification to any Office or public Trust under the United States."

No Religious Test - Article VI Section 3:

Sipuel v. Board of Regents (Oklahoma, 1948)

Oklahoma policy did not admit blacks to law school SCOTUS held - violated the 14th EPC

"But to come to the true principle by which this question ought to be determined: The business of a civil government is to protect the citizen in his rights, to defend the community from hostile powers, and to promote the general welfare. Civil government has no business to meddle with the private opinions of the people. If I demean myself as a good citizen, I am accountable, not to man, but to God, for the religious opinions which I embrace, and the manner in which I worship the supreme being."

Oliver Ellsworth, "Landholder, No. 7" Dec. 17, 1787

"We are almost the only people in the world, who have a full enjoyment of this important right of human nature [religious liberty]. In our country every man has a right to worship God in that way which is most agreeable to his conscience. If he be a good and peaceable person he is liable to no penalties or incapacities on account of his religious sentiments; or in other words, he is no subject to persecution. "But in other parts of the world... [s]ystems of religious error have been adopted, in times of ignorance. It has been the interest of tyrannical kings, popes, and prelates, to maintain these errors. When the clouds of ignorance began to vanish, and the people grew more enlightened, there was no other way to keep them in error, but to prohibit their altering their religious opinions by severe persecuting laws."

Oliver Ellsworth, "Landholder, No. 7" Dec. 17, 1787

Lemon v. Kurtzman (1971) - Lemon Test

PA and RI laws - funded non-public and non-secular schools Holding - Violation of Establishment Clause; new test A government law involving religion is Constitutional, only if: It has a secular purpose Its effects neither advance nor inhibit religion It doesn't foster an excessive entanglement of government and religion

SCOTUS affirmed and Clarified Roe "It must be stated at the outset and with clarity that Roe's essential holding, the holding we affirm, has three parts. First is a recognition of the right of women to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interest are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each." Thus, SCTOUS upheld below PA regulations (unless there was a medical emergency): Informed consent 24 hours waiting period If minors - 1 parent consent (with judicial bypass option) Undue Burden Test - i.e., "a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Thus, the Court did not uphold - husband consent for it was viewed as an "undue burden"

Planned Parenthood v. Casey (1992)

"Twenty-nine percent of Republicans told the Harris Poll last year that they probably or definitely would not vote for a Mormon for president. Among evangelicals, some of the discomfort is narrowly religious: Mormon theology is sometimes understood as non-Christian and heretical." "Something troubling is afoot here. From a constitutional standpoint, the religion of a candidate is supposed to make no difference. Even before the founding fathers dreamed up the First Amendment, they inserted a provision in the Constitution expressly prohibiting any religious test for office. The framers recognized, of course, that a candidates religion (or lack thereof) would enter political debate, and they were prohibiting only a formal test for taking office. But they were also giving their imprimatur to Jefferson's appealing notion that a person's beliefs about religion were no more relevant to his politics than his beliefs about geometry. Romney, by contrast, was staking his character and values on his religious beliefs while insisting that no on ask what those beliefs are."

Professor Noah Feldman, "What is it about Mormonism?" (2008)

McLaurin v. Oklahoma State Regents (1950)

SCOTUS held blacks couldn't be admitted to law school then segregated inside.

Boerne v. Flores (1997)

SCOTUS ruled that RFRA was unconstitutional as applied to free-exercise claims against state and local laws for it was inconsistent with SCOTUS precedents. The Smith test, thus, is still controlling in state claims.

Morgan v. Virginia (1946)

SCOTUS struck down VA law segregating buses across states

Henderson v. U.S. (1950)

SCOTUS struck down policy segregating railway dining

Writs of Assistance Case, 1761

Smuggling Was common in the colonies, why? Navigation (1650), Molasses (1733), and Sugar (1764) Acts Writs of Assistance - ordered sheriffs, etc. to assist custom officers in searching for smugglers Writs of Assistance were general search warrants, transferable with immunity from damages Issue: Was the writ unconstitutional, and thus void? Holding: No, writs renewed But, it was a politically important precedent for the revolution Results: It was one of the sparks of the Revolution and led to state and federal protections (e.g., 4th Amendment, 14th Amendment)

Nebraska Law - banned partial-birth abortion unless necessary to save mother's life SCOTUS -struck down law because of vague language of what was a "partial-birth abortion" and it caused "an undue hardship" for the woman and doctor. Justice Antonin Scalia's dissent: "[t]he notion that the Constitution of the United States... prohibits the States from simply banning the visibly brutal means of eliminating our half-born posterity is quite simply absurd."

Steinberg v. Carhart (2000)

Sweatt v. Painter (Texas, 1950)

Texas black law school was not equal (poor conditions) SCOTUS held - equal facilities or integrate White law school.

"The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature." Article VI of the Constitution makes the Constitution the "supreme law of the Land." In Marbury v. Madison (1803) Chief Justice Marshall, held that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that... the Brown case is the supreme law of the land, and Article VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

William Brennan - Cooper v. Aaron (1958)

Court held - it was enough for "separated agrarian community that is the keystone of the Amish faith." Plus, more religious and community education "employment of children under parental guidance and on the family farm from age 14 to age 16 is an ancient tradition." Thus, 1st and 14th Amendments prevent high school attendance until 16.

Wisconsin v. Yoder (1972)

It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers. But .... There are areas of conduct protected by the Free Exercise Clause..., and thus beyond the power of the State to control, even under regulations of general applicability..."

Wisconsin v. Yoder (1972)