Political Science 4136

Religious belief and the right to proselytize

laws have limits

Voting Paradox on Supreme Court

looking at the gray areas in the cons; penumbrums. Using different amendments to explain their reasoning for their vote, each justice has vastly different opinions in a voting paradox. The paradox is when justices split into groups such that the outcome (Furman v. Georgia) (Gilmore) (McDonald v. City of Chicago)

Good Law

means it has never overturned the case. Hurtado, Barron, are examples of "Good Law"

incorporation

means that the Bill of Rights were applied to an individual based on what a state has done to that individual.

natural court

no change in membership over a period of eleven years

Engel v. Vitale

regents in new york wrote a prayer, it was rejected because the state is not in the business of writing power. The wall of seperation would be breached if the S.C. allowed this.

Equal access

religiously oriented student groups are permitted equal access to school facilities

court rules

on cases of certification, summary judgment

Justice Oconnor***

opinion stressed the "neutrality" of remidal instruction, what she offers an accommodationist interpretation of Lemon.

The Religion Clauses

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

•Provisions of the Bill of Rights that are STILL not incorporated:

-8th Amendment's excessive bail protection -7th Amendment's jury trial for civil cases -5th's requirement for a grand jury indictment in criminal trials -The Third Amendment

Gitlow v. New

-Gitlow v. New York •While Gitlow's conviction was upheld and the New York "criminal anarchy" law was deemed valid, nevertheless the Supreme Court incorporated the Free Speech clause of the First Amendment

Six protections in the un-amended Cons

-Treason-Article 3, Section 3 only crime recognized in Cons. -Religions tests for public office- Article 4, reflects framers commitment to the idea that the gov outght to be neutral with respect to matters of religion, a view that was strongly reinforced by adoption of the Establishment Clause of the First Amendment -Habeas Corpus- Article 1, Section 9- limitations of how many times you are able to get a writ in State and Federal Court -Ex Post Facto Laws- Article 1 Section 9 (federal), 10 (state)- after the fact, criminal laws that cant impose greater disciplinary action on someone who has already been convicted. Two key elements are needed for act to be invalidated as an ex post facto law. 1. must be retroactive. 2. must seriously disadvantage someone. -Bills of Attainer-Article 1 Section 10, - legislative acts that impose punishment on a person without benefit of a trial in a court of law. Jury Trial for Criminal Cases-Article 3, Section 2- Jury\\\'s, trial of all crimes must be by jury, except for Impeachment Amending the Constituion- Article 5- you must first have an amendment proposed by Congress.

Barron v. Baltimore

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Board of Education v. Mergens

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Gitlow v. New York

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Hurtado v. California

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Palko v. Connecticut

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Rights Recognized in the Original Constitution (before Bill of Rights added)

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Widmar v. Vincent

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appellate jurisdiction

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compelling state interest test

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concurrence

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dissent

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minority opinion

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original juridsdiction

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summary judgement

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summary review

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merits

parties file new briefs in an attempt to convince the court how they should rule in a case. The court can issue a ruling based only upon briefs submitted (summary disposition)

Theories of Interpretation of Constitution

1. Original Intent- The language of the framers what did they mean when writing it. It can produce an unbiased view of Cons. (Clarence Thomas likes Original Intent) 2. Textualism- Sticking strictly to the text of, meaning of the words. Literalism. 3. Original Meaning- 4. Stare Decisis-let the decision stand, judges should decide cases based on previously decided precedent. 5. Poling Jurisdictions- what do other courts, do, looking at other courts in different countries for outcomes of cases (Kennedy;Breyer) 6. Pragmatism- idea of bad consequences, think pseudo cost-benefit, what\\\\\\\\\\\\\\\'s the cost to society if we uphold a certain right (U.S v. Leon used a pragmatic calculus to justify the \\\\\\\\\\\\\\\"good faith\\\\\\\\\\\\\\\" exception to the exclusionary rule.

There are two alternative views of incorporation:

1.Total incorporation •If you apply any part of the Bill of Rights you must apply ALL of it (think Hugo Black) 2.Total "plus" •Not only should all of the provisions apply to the states, there are possibly other protections not mentioned that could apply (think privacy)

Things that still come up in court

10 commandments in courthouses (McCreary County, Ky v. ACLU 2005) 10 Commandments Monument (Van Orden v. Perry 2005)

what is the maximum number of opinions that can be produced for a single case?

10,

Van Orden v. Perry (2005)

Brief Fact Summary. Texas has a monument outside the capital building that has the Ten Commandments on it. Synopsis of Rule of Law. Displays that have both religious and governmental significance will not be held to violate the Establishment Clause Facts. Outside of the Texas capital building is a site that contains 17 monuments. Each monument represents something in connection with Texas's history. One of those statutes has the Ten Commandments in its entirety on it. This display is challenge. Issue. Whether every public display holding religious context must pass the Lemon test in order to not violate the Establishment Clause. Held. No. While it is true the separation of church and state are taken seriously by this court, not every display of religion by a Government will be per se invalid. Here we have 17 monuments all meant to show the history of a state. This one monument with the Ten Commandments is a passive display that does not warrant automatic invalidation under the Establishment Clause. This court instead analyzes the nature of the monument and the Nation's history and finds that a monument with the dual nature of historical reference and religious content is not unconstitutional. The court compares the factual circumstances of this case to another in Kentucky. The Government had a statute that required all classrooms to have the Ten Commandments posted. That circumstance clearly is more obvious as it will be shown to elementary school kids everyday. It is not the same as a historical display outside of the Texas Capital Building. The court states that our Nation's heritage does have religious implication, thus every historical landmark can not be said to be reinforcing a particular religious rather than showing a history of this County. Dissent. This monument is not a work of art, nor does it have a link to any specific historical date or person in Texas's history. No reasonable observer would look at the monument and think it is there to honor the history of Texas. Instead it shows the state endorses such religious ideologies. Concurrence. Discussion. The court also mentions that even in the Supreme Court house there are historical paintings that have religious context, specifically a picture of Moses. However this court states that Moses was a lawmaker and an onlooker can see this and see the purpose of the picture without thinking the Supreme Court of the United States endorses one particular religion.

Lee v. Weisman (1992)

Brief Fact Summary. A school that invited a rabbi to deliver nonsectarian prayers at the school's graduation ceremony was held by the Supreme Court of the United States (Supreme Court) to be a violation of the Establishment Clause of the United States Constitution (Constitution). Synopsis of Rule of Law. The Constitution forbids the state to exact religious conformity from a student as the price of attending her own high school graduation ceremony. To say that a student must remain apart from the ceremony at the opening invocation and closing benediction is to risk conforming uniformity in an environment analogous to the classroom setting, where we have said the risk of compulsion is high. Facts. The principal of Providence Middle School invited a rabbi to deliver nonsectarian prayers at the school's graduation ceremony. The Respondent, Deborah Weisman (Respondent), a student at the school, raised an Establishment Clause challenge to the practice of prayer at the district's graduation ceremonies. Issue. Whether the district's practice of prayer at the graduation ceremony was a violation of the Establishment Clause of the Constitution? Held. Yes. Judgment of the lower court affirmed. Even for students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma. The degree of school involvement here made it clear that the graduation prayers bore the imprint of the state and thus, put school-age children who objected in an untenable position. For a dissenter of high school age, who has a reasonable perception that she is being forced by the state to pray in a manner her conscience will not allow, the injury is no less real. The state may not, consistent with the Establishment Clause of the Constitution, place primary and secondary school children in this position. Therefore, the district's practice of prayer at the graduation ceremony was a violation of the Establishment Clause of the Constitution. Dissent. In holding that the Establishment Clause of the Constitution prohibits invocations and benedictions at public school ceremonies, the Supreme Court lays waste a tradition that is as old as public school graduation ceremonies themselves. As an instrument of destruction, the Supreme Court invents a boundless and boundlessly manipulatable, test of psychological coercion. Concurrence. Government pressure to participate in a religious activity is an obvious indication that the government is endorsing or promoting religion. But it is not enough that the government restrain from compelling religious practices, it must not engage in them either. When public school officials, armed with the state's authority, convey an endorsement of religion to their students, they strike near the core of the Establishment Clause of the Constitution. However, "ceremonial" their messages may be, they are flatly unconstitutional. Discussion. Despite a history of traditions, the Supreme Court held that religious statements made at public school ceremonies violate the Establishment Clause of the Constitution

City of Boerne v. Flores (1997)

Brief Fact Summary. Congress' enactment of the Religious Freedom Restoration Act (RFRA) of 1993 was held by the Supreme Court of the United States (Supreme Court) to be an excessive use of power under Section:5 of the Fourteenth Amendment of the United States Constitution (Constitution). Synopsis of Rule of Law. While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends sought to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented. Facts. A decision by local zoning authorities to deny a church a building permit was challenged under the RFRA. The Act's stated purposes are: "(1) to restore the compelling interest test and to guarantee its application in all cases where the free exercise of religion is substantially burdened; (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government." The Act forbids the government from "substantially burdening" a person's exercise of religion unless the government can demonstrate that the burden "(1) is in furtherance of a compelling state interest; and (2) is the least restrictive means of furthering that state interest." Specifically, this case calls into question the authority of Congress to enact the RFRA. Issue. Whether the RFRA is a proper exercise of Congress' Section:5 power to "enforce" by "appropriate legislation" the constitutional guarantee that no state shall deprive any person of "life, liberty, or property without the due process of law" nor deny any person "equal protection of the laws?" Held. No. Judgment of the lower court reversed. Congress' power under Section:5 extends only to "enforcing" the provisions of the Fourteenth Amendment. While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented. The RFRA's legislative records lacks examples of modern instances of generally applicable laws passed because of religious bigotry. Further, the RFRA cannot be considered remedial, preventive legislation. Rather, it appears to attempt a substantive change in constitutional protections. Preventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected have a significant likelihood of being unconstitutional. Remedial legislation under Section:5 should be adapted to the wrong which the Fourteenth Amendment of the Constitution was intended to protec t against. The RFRA is not so confined. The stringent test the RFRA demands of state laws reflects a lack of proportionality between the means adopted and the legitimate end to be achieved. Therefore, the RFRA is not a proper exercise of Congress' Section:5 power to "enforce" by "appropriate legislation" the constitutional guarantee that no state shall deprive any person of "life, liberty, or property without the due process of law" nor deny any person "equal protection of the laws." Discussion. This decision disavowed any power on Congress' power to confer new substantive rights not derived from prior decisions of the Court interpreting the Fourteenth Amendment. Thus, this case is important because it illustrates that Congress does not have unlimited power to create new substantive rights. Rather, it must look to the Court's interpretations of the Fourteenth Amendment to find such rights.

Agostini v. Felton

Brief Fact Summary. Despite a prior holding to the contrary, New York's federally funded program that provides supplemental instruction to disadvantaged students on a neutral basis is not a violation of the Establishment Clause of the United States Constitution when such instruction is given on the premises of sectarian schools by government employees pursuant to a program containing safeguards. Synopsis of Rule of Law. A federally funded program that provides supplemental, remedial instruction to disadvantaged students on a neutral basis is not invalid under the Establishment Clause of the Constitution when such instruction is given on the premises of sectarian schools by government employees pursuant to a program containing safeguards. Facts. In Aguilar v. Felton, the Supreme Court of the United States held that the Establishment Clause of the First Amendment to the Constitution barred the city of New York from sending public school teachers into parochial schools to provide remedial education to disadvantaged children pursuant to a congressionally mandated program. On remand, the District Court entered a permanent injunction reflecting this Court's ruling. Twelve years later, the Petitioner, the Board of Education of the City of New York and thus, the parties bound by that injunction, seek relief from its operation. The Petitioner claims that Aguilar cannot be squared with the Supreme Court's intervening Establishment Clause jurisprudence and ask that this Court explicitly recognize what the Supreme Court's more recent cases already dictate: that Aguilar is no longer good law and that Petitioners are entitled under Federal Rule of Civil Procedure (FRCP) 60(b)(5) to relief from the operation of the District Court's prospective injunction. Issue. Whether Aguilar has been undermined by subsequent Establishment Clause decisions and is no longer good law? Held. Yes. Judgment of the Court of Appeals reversed and remanded to the District Court with instructions to vacate its 1985 order. The Supreme Court's cases subsequent to Aguilar have been modified in two significant respects. First, the Supreme Court has abandoned the presumption that the placement of public employees on parochial schools grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion. Second, the Supreme Court has departed from the rule that all government aid that directly aids the educational function of religious schools is invalid. Under current law, the program in Aguilar will not be deemed to have the effect of advancing religion through indoctrination. There is no reason to presume that, simply because she enters a parochial school classroom, a full-time public employee such as a Title I teacher will depart from her assigned duties and instructions and embark on religio us indoctrination. Nor under current law can it be concluded that a program placing full-time public employees on parochial campuses to provide Title I instruction would result in impermissible finance religious indoctrination. Aguilar's conclusion that the program at issue resulted in "excessive entanglement between church and state" is not consistent with current law because not all entanglements have the effect of advancing or inhibiting religion. Therefore, New York's Title I program does not run afoul of any of the three primary criteria the Supreme Court now uses to evaluate whether government aid has the effect of advancing religion: (i) it does not result in religions indoctrination: (ii) does not define its recipients by reference to religion or (iii) nor does it not create an excessive entanglement. Therefore, Aguilar has been undermined by subsequent Establishment Clause decisions and is no longer good law. Dissent. Aguilar was a correct and sensible decision. A proper application of the Court's rules and the FRCP would lead the Supreme Court to defer reconsideration of Aguilar until the Supreme Court is presented with the issue in another case. Discussion. This case reverses the prior holding of Aguilar v. Felton that was based on outdated law. In this case, the Court applied the current three-prong test used to determine whether the government is advancing religion. It held that the program at issue (i) does not result in religions indoctrination; (ii) does not define its recipients by reference to religion or (iii) and it does not create an excessive entanglement. This case is important because it illustrates the Court's evolution of analyses in determining what is permissible government action with regard to religion.

Oregon v. Smith

Brief Fact Summary. Smith (Respondent) was denied unemployment benefits because he uses peyote as part of his religion. Synopsis of Rule of Law. Free exercise of religion does not preclude adherence to valid, nondiscriminatory laws and regulations Facts. Oregon prohibits possession of controlled substances without a prescription. Peyote is on the list of controlled substances. Respondent, a member of the Native American Church was fired from his job for using peyote as part of a religious ceremony. Respondent then filed for unemployment benefits but was denied because of his "misconduct." Issue. Can the state criminally prohibit the religious use of peyote under the Free Exercise Clause? Held. Yes. The law is applied to all citizens equally regardless of religious belief. It was not designed to impede upon the religious practice of the Native American Church. Dissent. The majority narrowly defined free exercise. The fact that Respondent's religious ceremony has been outlawed is an unconstitutional restraint on his right to practice his religion. Concurrence. This state law is tied to a legitimate, compelling state interest in eliminating illegal drug use and its secondary criminal effects. This goal outweighs any incidental religious ceremonial use of peyote Discussion. Free exercise of religion includes the right to believe whatever religion one chooses. The state may not prohibit acts simply to eliminate a particular religion. On the other hand, religious beliefs do not excuse individuals compliance with the law. The state must have the power to generally enforce laws regardless of religious beliefs or else it will lead to the development of an elaborate scheme of exceptions with no rule.

Everson v. Board of Education

Brief Fact Summary. The Petitioner, Everson (Petitioner), in his status as a taxpayer, filed suit challenging the ability of the Respondent, Board of Education (Respondent), to reimburse funds to parents of parochial school students for the transportation of their children to and from school. Synopsis of Rule of Law. This case stands for the proposition that, while no law respecting an establishment of religion will stand under the United States Constitution (Constitution), neutral laws, which afford benefits to children will be upheld. Facts. The Petitioner in his status as a taxpayer filed suit challenging the ability of the Respondent to reimburse funds to parents of parochial school students for the transportation of their children to and from school. The Petitioner brought suit alleging that the New Jersey reimbursement statute respects the establishment of religion, by allowing the parents of parochial school students to benefit from the reimbursement scheme. The New Jersey Court of Appeals held that the statute did not violate the Constitution and the Supreme Court of the United States (Supreme Court) granted certiorari to consider the issue. Issue. This case considers whether the parents of parochial school children can benefit from the same services afforded to the parents of public school children. Held. Affirmed. In affirming the judgment of the Court of Appeals, the Supreme Court found the statute was not unconstitutional because it was designed to provide a benefit to the parents of all school children, distinct from any religious function in which the children engaged. Discussion. It is important to understand, in striking down the Establishment Clause challenge, the Supreme Court highlights the fact that funds cannot be commingled when they are reimbursed only for transportation costs already expended. Thus, because there is no possibility of funding parochial activities in themselves, the statute is allowed to stand. Dissent. The dissents of Justice Robert Jackson (J. Jackson) and Justice Wiley Rutledge (J. Rutledge) stand for strict adherence to the establishment clause.

Edwards v. Aguillard (1987)

Brief Fact Summary. The Supreme Court of the United States (Supreme Court) held that Louisiana's Creationism Act (the Act) that required evolution be taught if "creation science" was taught and vice versa violated the Establishment Clause of the United States Constitution (Constitution). Synopsis of Rule of Law. While the Court is normally deferential to the state's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not without a sham. It is clear that requiring schools to teach creation science with evolution does not advance academic freedom. Facts. The Act forbids the teaching of evolution in public schools unless accompanied by instruction in "creation science." No school is required to teach evolution or creation science. If either is taught however, the other must be taught. The Appellees, Aguillard and other parents of children attending Louisiana public schools, Louisiana teachers, and religious leaders (Appellees) challenged the constitutionality of the Act. The District Court held that the Act violated the Establishment Clause of the Constitution either because it prohibited the teaching of evolution or because it required the teaching of creation science with the purpose of advancing a particular religious doctrine. The Court of Appeals affirmed. Issue. Whether the Act violates the Establishment Clause of the Constitution? Held. Yes. Judgment of the Court of Appeals affirmed. Lemon's first prong focuses on the purpose of that animated adoption of the Act. In this case, the Appellants, Edwards and others (Appellants), have identified no clear secular purpose for the Act. The goal of providing a more comprehensive science curriculum is not furthered by either outlawing the teaching of evolution or by requiring the teaching of creationism. While the Supreme Court is normally deferential to the state's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not without a sham. It is clear that requiring schools to teach creation science with evolution does not advance academic freedom. The Act does not grant teachers the flexibility that they did not already possess to supplant the present science curriculum with a presentation of theories besides evolution, about the origin of life. Here, the purpose of the Act was to restructure the science curriculum to confor m with a particular religious viewpoint. Therefore, the Act violates the Establishment Clause of the Constitution. Dissent. There is ample evidence that the majority is wrong in holding that the Act is without secular purpose. Concurrence. Nothing in this Supreme Court's decision diminishes the traditionally broad discretion accorded state and local school officials in the selection of the public school curriculum. Discussion. Since this case took place in the context of a public school, the Supreme Court was less tolerant of governmental sponsorship of religious symbolism.

Church of the Lukumi Babala Aye v. City of Haileah

Brief Fact Summary. The city passed an ordinance outlawing animal sacrifice for religious purposes. Synopsis of Rule of Law. The Free Exercise Clause forbids subtle departures from neutrality and covert suppression of a particular religious belief Facts. The Church of the Lukumi Babala Aye (Petitioner) practices the Santeria religion wherein a principal form of devotion is animal sacrifice. The animals are killed by severing the carotid arteries in the neck. Later, the animal is cooked and eaten. In 1987, Petitioner leased land from the City of Hialeah (Respondent) to build a house of worship. The community objected, and the city council passed an ordinance prohibiting all animal sacrifice for religious ceremonies citing a danger to the public health, safety, and welfare of the community. Issue. Is the city ordinance prohibiting animal sacrifice constitutional? Held. No. The ordinance was developed in response to community outcry against the practice of Santeria. The interest in preventing cruelty to animals could have been achieved through alternative means than a complete ban on this religion. Discussion. A law that is neutral and generally applicable does not have to be justified by a compelling state interest. But when the law targets activity because of its religious nature it will be held invalid unless there is a compelling governmental interest and it is narrowly tailored to advance that interest. The law here is not neutral on its face. It includes explicit reference to sacrifice and religious ritual. The goal of the ordinance was to prevent the practice of Santeria in the city.

Lemon v. Kurtzman (1971)

Brief Fact Summary. The state reimburses parochial schools for certain expenses associated with the education of its children. Synopsis of Rule of Law. To be valid, a statute must have a secular legislative purpose, must not advance or inhibit religion, and must not excessively entangle church and state. Facts. Pennsylvania has a statute that reimburses religious schools for teacher salaries, textbooks, and other instructional materials. Rhode Island has a similar statute that allows the state to pay private school teachers a 15% salary supplement. Issue. Is it constitutional for the state to provide financial assistance to religious schools for the cost of teaching secular subjects? Held. No. The statutes result in excessive entanglement between the government and religion. Excessive entanglement is determined by the character and purpose of the institution benefited, the nature of the aid given, and the resulting relationship between the government and church. Discussion. The framers of the United States Constitution specifically and purposefully prohibited the establishment of a state church because of the inherent problems. The Establishment Clause was designed to avoid state "sponsorship, financial support, and active involvement of the sovereign in religious activity."

After S.C. struck down 1993 RFRA

Congress responded by passing the Religious Land Use and Institutionalization Act of 2000 (RLUIPA) -Officially 42 U.S.C 2000 -Section 3 of the law dictates that "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution" unless the burden furthers a "compelling government interest" and does so by the "least restrictive means." (again....trying to get back to Sherbert test)

The Four Horsemen

Devanter, McReynolds, Sutherland, Butler these men, plotted against FDR in chance they could. This led FDR to propose the 1937 Judiciary Reorganization. (Court Packing) This means, everytime a justice turned 70 years old, FDR was able to appoint a new justice up to 15.

Arizona Christian Tuition Organization v. Winn (09-987)

Facts of the Case Arizona taxpayers challenged the constitutionality of Arizona's tuition tax credit in an Arizona federal district court. They alleged the tax credit violated the Establishment Clause of the First Amendment because it funneled money to private religious schools. The district court dismissed the case. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed, holding that the taxpayers had standing to bring their suit and had alleged a viable Establishment Clause claim. Question Do the plaintiffs lack standing because they cannot allege that the Arizona tuition tax credit involves the appropriation or expenditure of state funds? Conclusion Decision: 5 votes for Arizona Christian School Tuition Organization, 4 vote(s) against Legal provision: standing, Article III Held -Yes. The Supreme Court overturned the lower court in an opinion by Justice Anthony Kennedy. The majority held that the challengers to the tax credit in Arizona lack standing under Article III. Justice Elena Kagan filed a dissenting opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. "State sponsorship of religion sometimes harms individuals only (but this 'only' is no small matter) in their capacity as contributing members of our national community," Kagan wrote for the dissenters.

Zelman v. Simmons-Harris (2002)

Facts of the Case Ohio's Pilot Project Scholarship Program provides tuition aid in the form of vouchers for certain students in the Cleveland City School District to attend participating public or private schools of their parent's choosing. Both religious and nonreligious schools in the district may participate. Tuition aid is distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children. In the 1999-2000 school year 82 percent of the participating private schools had a religious affiliation and 96 percent of the students participating in the scholarship program were enrolled in religiously affiliated schools. Sixty percent of the students were from families at or below the poverty line. A group of Ohio taxpayers sought to enjoin the program on the ground that it violated the Establishment Clause. The District Court granted them summary judgment, and the Court of Appeals affirmed. Question Does Ohio's school voucher program violate the Establishment Clause? No. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the program does not violate the Establishment Clause. The Court reasoned that, because Ohio's program is part of Ohio's general undertaking to provide educational opportunities to children, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients and the incidental advancement of a religious mission, or any perceived endorsement, is reasonably attributable to the individual aid recipients not the government. Chief Justice Rehnquist wrote that the "Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice."

State of Tenessee v John Scopes

Famous 1925 "monkey trial" In Tennessee it was illiegal for teachers to teach anything other than what was in the bible.

Defining religion

From Latin religare - "to tie down" or "to restrain" •Davis v. Beason (1890) - "the term 'religion' has reference to one's view of his relations to his Creator, and to the obligations they impose of reverence for His being and character, and obedience to His will." -Strictly theistic; by 1960s, American society had become much more religiously diverse

Sherbert Test

Governments would have to demonstrate that policies burdening religion are of sufficient magnitude to override the free exercise interest and that the policy is cast in the least restrictive manner possible. Sherbert test is a type of test adopted by the courts when determining on granting or denying of unemployment compensation. Accordingly, the government needs to show a compelling government interest when unemployment compensation is denied to a person who was fired from a job as the job did not agree with the person�s religion. The test is substantially used to broaden the protection granted through the Free Exercise Clause of the First Amendment to the U.S. Constitution. The test was developed by the court through the decision of Sherbert v. Verner, 374 U.S. 398 (U.S. 1963), and required the demonstration of such a compelling interest in Free Exercise cases. The test consists of four criteria that are used to determine if an individual�s right to religious free exercise has been violated by the government. The test consists of two phases. According to the test, first the court has to determine: 1. whether the person has a claim involving a sincere religious belief, and 2. whether the government action is a substantial burden on the person�s ability to act on that belief. Secondly, the government must prove that: 1. it is acting in furtherance of a "compelling state interest"; and 2. it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

Duncan v. Louisiana

Held. Yes. Judgment reversed and remanded for further proceedings. The Supreme Court of the United States held that the Constitution was violated when Appellant\\\\\\\\\\\\\\\'s demand for a jury trial was denied. The Court stated that the Sixth Amendment guarantee of trial by jury in criminal cases was \\\\\\\\\\\\\\\"fundamental to the American scheme of justice,\\\\\\\\\\\\\\\" and that the states were obligated under the Fourteenth Amendment to provide such trials. Thus, a general grant of jury trial for serious offenses is a fundamental right Dissent. The Due Process Clause of the Fourteenth Amendment does not require uniformity; nor does it require adherence to old forms; and it does not impose on states the rules that may be enforced in federal courts except where such rules are found to be essential to basic fairness. There is no reason to reverse the conviction of the Appellant absent any suggestion that his trial was unfair. The Court has chosen to impose on every state one means of trying cases. Concurrence. The Fourteenth Amendment was intended to make the Bill of Rights applicable to the states. However, the selective incorporation process has the virtue of having already worked to make most of the Bill of Rights applicable to the states. Discussion. The majority uses selective incorporation to ensure that all criminal processes of the Bill of Rights are now applicable to the states with the exception of the grand jury indictment provision of the Fifth Amendment Held. Yes. Judgment reversed and remanded for further proceedings. The Supreme Court of the United States held that the Constitution was violated when Appellant\\\\\\\\\\\\\\\'s demand for a jury trial was denied. The Court stated that the Sixth Amendment guarantee of trial by jury in criminal cases was \\\\\\\\\\\\\\\"fundamental to the American scheme of justice,\\\\\\\\\\\\\\\" and that the states were obligated under the Fourteenth Amendment to provide such trials. Thus, a general grant of jury trial for serious offenses is a fundamental right Dissent. The Due Process Clause of the Fourteenth Amendment does not require uniformity; nor does it require adherence to old forms; and it does not impose on states the rules that may be enforced in federal courts except where such rules are found to be essential to basic fairness. There is no reason to reverse the conviction of the Appellant absent any suggestion that his trial was unfair. The Court has chosen to impose on every state one means of trying cases. Concurrence. The Fourteenth Amendment was intended to make the Bill of Rights applicable to the states. However, the selective incorporation process has the virtue of having already worked to make most of the Bill of Rights applicable to the states.

Hughes Court

Hughes ran for president, lost by three percent to Wilson. They nominated him to Secretary of State. He eventually became chief justice again.

regulation

In the 18,19 century meant \\\\\\\"well trained\\\\\\\" this is an example of original meaning.

Justices

Most of them come from Harvard or Yale, and they are promoted to the U.S./D.C Court of Appeals as a training ground to become a justice.

EXAM

Questions come from Toobin, Lecture, and "the call to the robe" -Long Answer: Read OBrian, Listen Lecture, Hypothetical. - For Knowing Court Cases-Which of the following issues deal with the court cases Make Color Coded Cards With What Cases Fall Under Each Issues Know Jehovah Witness cases.

14th Amendment and Selective Incorporation

Ratified in 1868. Work of Rep. John Bingham (R-OH) Dred Scott v. Sanford (1857) Supreme Courts black eye. Section 1 (Contraversial!) talks about civil liberties and civil rights. Section 5 goes hand in hand with section 1, but this gives Congress the ability to to restrict or limit laws in the States and says there are limits of what the State can do.

Toobin and Stormcenter

Read these books

Lemon Test

Road to Lemon Test "vid: when cases are put together to make a point/case" Lemon v. Kurtzman "vid" Robinson v DiCenso, Earley v. DiCenso S.C. strikes down both laws. Three steps to Lemon Test: to pass constitutional muster (under Establishment Clause) challenged policy must meet the following criteria 1.) it must have a "secular purpose" 2. it must not have the principle or primary effect of "inhibiting or advancing religion" and 3. it must avoid an "excessive government entaglement." The government has been soft on the third step, because its hard to police schools.

Hugo Black

Said, \\\\\\\"show me in the Constitution where it talks about privacy.\\\\\\\"

doctrine of incorporation related to

Slaughterhouse Cases (1873) said that Butchers Association couldn't use the 14th amend because they were white, S.C said 14th amend. was written for blacks and Hurtado v California (1884) Hurtado wanted a grand jury in 5th amendment to hear his case for his indictment. He wanted the 5th amendment to apply to the state. S.C. said as long as their is someone (judge) to approve the evidence it is sufficient in place of a grand jury and the 5th amend. doesn't apply to the state.

Unemployment Compensation

Smith and Sherbert dealt with this only, cant apply anything else to it.

State meaning

State=policy, government, order (power of being the parent when the parent isn't there)

Protections of Religion

Under these criteria, even nontheistic creeds, such as Taoism or Zen Buddhism, qualify as religions •BUT frivolous or ridiculous beliefs fail to meet any of the four criteria -Stanley Oscar Brown's professed "faith" in Kozy Kitten Cat Food (see Brown v. Peña, 1977) The First Amendment provides virtually absolute protection with respect to individual religious convictions and beliefs •The government may never impose penalties based solely on those beliefs •Torasco v. Watkins (1961)—the Court unanimously struck down a state law requiring public office seekers to take an oath declaring their belief in God •The Free Exercise Clause obviously protects more than belief—it carries over into the realm of action •BUT these protections are somewhat attenuated •Whether specific actions are protected by the First Amendment depends upon the nature of those actions AND the government's rationale for trying to regulate them

Religion broadly defined

Universal Military Training and Service Act (1940) defined "religious training and belief" as training or belief "in a relation to a Supreme Being involving duties superior to those arising from any human relation." •United States v. Seeger (1965) - conscientious objector status during Vietnam

Child Benefit Theory

Who benefits from the money. used in (Everson v. Board of Education) the children benefit from the money

writ of mandamus

a command, an order from a court to a certain elected official to carry out a function.

plenary revieww

all the bells and whistles, court will schedule a time for oral argument.

States

already had their own constitutions (MA is oldest) whcih provided some protections against state action

dissenting opinions

are often of great importance

conscientious objector status

because of beliefs; getting out of duty because of religion

Selective incorporation

began in 1897

due process of law

civil liberties

equal protection law

civil rights

strict scrutiny

court approaches the law/case as it is already unconstitutional

rational basis test

court goes in believing the law/case is fine constitutional

per curiam

decision of the court; can be unsigned

oral argument

each side is allotted 30 minutes (extra time may be given for cases of special importance.

Due Process Law

equal protection of the law, due process

majority opinion

get five justices to agree with you

writ of certiori

getting the court to hear your case

De Novo

hear case as new

exclusionary rule

protects you from wrongful acts of law enforcement, not clerical errors.

Good Faith

if a police officer acts in good faith that a warrant is valid that evidence is valid or admissable.

in toto

in total

eminent domain

seizure of private property.

Test Oath Cases, Cummings v. Missourit examples of Bills of Attainer

state laws and federal that said you must, if you wanted a job or liscence, swear to an oath that you never served with the Confederacy, this is a bill of attainer, you can\\\\\\\'t punish someone or a group, a court of law must not do that.

In Palko v. Connecticut (1937)

the Court (through Justice Cardozo) attempted to explain the basis for its gradual incorporation of the Bill of Rights through the 14th Amendment, the important thing here was the dissent written (Cardozo) was the first time the S.C. explained incorporation

valid secular policy test

the Court looks at the particular legislation or policy adopted by the governement. If the policy serves a legitimate non-religious government goal, not directed at any particular religion, the Court will uphold it, even if the legislation has the effect of conflicting with religious. Thrown out by Sherbert test.

In Near v. Minnesota (1931)

the Court struck down a state law that permitted censorship in clear violation of freedom of the press

justiciability

the ability that a court should/could hear a case. Questions that are asked when consideirng a case, standing, ripeness, mootness(change in fact or circumstance)

future harm

things that may happen in the future

Constitution

was drafted in 1787 to replace the \\\\\\\"failed\\\\\\\" Articles of Confederation

Bill of Rights

was widely perceived as imposing limitations only on the power and actions of the national government.

oral arguments

you ususally get a half hour. 2 minutes is you speaking and the next 28 minutes you are answering questions.

A working definition of religion (not Supreme Court Definition!!!)

•A working definition of religion—a creed must meet 4 criteria to qualify as a religion as used in the First Amendment: -there must be a belief in God or some parallel belief that occupies a central place in the believer's life -the religion must involve a moral code that transcends individual belief—it cannot be purely subjective -some associational ties must be involved—that is, there must be some community of people united by common beliefs -there must be a demonstrable sincerity of belief

Demographic Characteristics

•Catholic Seat (Roger Taney, CJ 1836-1864) •Jewish Seat (Louis Brandeis, 1916-1939) •African-American Seat (Thurgood Marshall, 1967-1991; Clarence Thomas 1991-present) •Italian American (Antonin Scalia, 1986 - ) •Women -Sandra Day O\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\'Connor (1981 - 2006) -Ruth Bader Ginsburg (1993 - present) -Sonja Sotomayor (2009 - present) -Elena Kagan (2010 - present)

U.S. District Courts

•Civil Cases -Majority of the district court caseload -Between private parties or between private party and the federal government -Types of cases: •cases that involve a federal question •cases of a particular subject matter (e.g., violations of the Civil Rights Act/Voting Rights Act •diversity of citizenship •federal habeas corpus review from state prisoners

Overturning Supreme Court Opinions

•Decisions of the Supreme Court CAN be overturned through constitutional amendment—though rare, it has happened five times... -11th (2-7-1795) - Chisholm v. Georgia (1793) -13th (12-6-1865) - Dred Scott v. Sandford (1857) -14th (7-9-1868) - Dred Scott v. Sandford -16th (2-3-1913) - Pollock v. Farmer's Land and Trust Co. (1895) -26th (7-1-1971) - Oregon v. Mitchell (1970)

What is an establishment of religion?

•Establishment of an official, national religion? •State preference of one religion over another? Does the Establishment clause erect a solid wall between church and state, prohibiting most (if not all) forms of public support of religion? •In the two centuries since the Establishment Clause went into effect, Americans both on and off the Court have disagreed sharply over the meaning of the clause •When polled, most Americans respond approvingly to the abstract concept of separation of church and state •Yet there is no consensus on how high or how thick the "wall of separation" should be

Religious Freedom Restoration Act

•Negative public reaction to the Court's decision in Smith convinced a majority in Congress to enact RFRA in 1993 •Congress wanted to return the status quo ante - that is, return the law in this area to what it was prior to Smith •Congress took action under Section 5 of the Fourteenth Amendment •RFRA prohibited government at all levels from substantially burdening a person's free exercise of religion, even if such burden resulted from a generally applicable rule, UNLESS the government could demonstrate... 1) A compelling interest and 2) That the rule constituted the least restrictive means of furthering that interest (remember Sherbert???) What does this mean for state/local government??? •Can city enforce noise ordinance against religious group that used sound amplifiers? •Can we arrest religious zealots that protest at abortion clinics and block traffic? •Do we have to make religious accommodations for state prisoners? •What IS as "substantial burden"?????

U.S. Courts of Appeal

•No original jurisdiction whatsoever** •Structure and function can be altered by Congress •Appellate jurisdiction over two general categories of cases: -ordinary civil and criminal appeals from federal trial courts -appeals from certain federal administrative agencies, departments, and regulatory commissio

U.S. Supreme Court

•Only federal court mentioned by name in the Constitution (Article III) •Original and appellate jurisdiction -Congress can alter the appellate jurisdiction ONLY (Marbury v. Madison) •Appellate jurisdiction includes cases from: 1lower federal constitutional, territorial and most legislative courts 2highest state courts, provided there is a substantial federal question •9 Justices •Both original and appellate jurisdiction -Original jurisdiction is set out in Article III of Const. •Congress CANNOT alter the Court\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\'s original jurisdiction -Tried via Sect. 13 of Judiciary Act of 1789; Marbury v. Madison -Appellate jurisdiction is controlled by Congress •Congress CAN remove certain types of cases from the Court\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\'s appellate jurisdiction; Ex parte McCardle

Ideology/Party Affiliation

•Presidents have drawn more than 90% of all nominees from the ranks of their own party •If a president does cross party lines, he usually anticipates some political advantage from doing so -Eisenhower appointed William Brennan, a New Jersey Democrat and a Catholic to appeal to potential crossover voters -Nixon selected Lewis Powell, a conservative Democrat from Virginia

Legal-Political Compatibility

•Presidents want justices on the Supreme Court who share their views on constitutional issues •More concerned with a potential justice\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\'s position on certain salient legal issues -FDR -- wanted justices who shared his broad view of the national government\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\'s power to regulate the economy and who would uphold the New Deal programs

Time, place, manner regulations

•The First Amendment does not guarantee the right to communicate one's views at all times and in all places or in any manner that may be desired •Religious expression in the public forum is subject to reasonable time, place, manner regulations -Airports, courthouses, other public buildings may be declared off-limits to ALL 1st Amend. Activities, so long as one group is not singled out

Cantwell v. Connecticut (1940)

•The highest degree of protection is accorded to religious speech and other expressive religious conduct •In terms of Free Exercise, much is owed to the Jehovah's Witnesses (see box 4-1, p. 111 of text) •"Valid secular policy test"

Region

•Well into the 20th century, region played an important part in appointments to the Supreme Court; representation from various sections of the country bolstered the legitimacy of the Court (and the national government!) -Southern Seat (except during reconstruction) -New England Seat until the 1930s -Has all but disappeared

Demographic Characteristics

•While region has declined in importance, demographic characteristics have increased •Religious representation a concern in the early 20th century

The Politics of Supreme Court Appointment

•Who serves on the federal bench? -Constitutional qualifications? •Ideology/Party Affiliation •Region •Demographic Characteristics •Legal-Political Compatibility •Age

How Cases Arrive at the Supreme Court

•Writ of appeal (also termed a writ of right) -Virtually eliminated by Judiciary Act of 1924 and Supreme Court Case Selections Act of 1988 (appeals from state courts) •Certification -The judgment involves a question of law to which there is no controlling decision, a question of law requiring resolution of conflicting decisions, a matter of public importance, or an immediate appeal may materially advance the progress of the case •Writ of Certiorari