Quotes Civil Liberties Final
Which amendment supported the civil Right enforcement to the States
10th amendment (police powers) - o "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people"
First Amendment Free Exercise Clause
o protects religious ideas and actions, but not every action o Originally, FEC only applied to Federal Government
Planned Parenthood v Casey (1992) - State Restrictions & undue Burden Test
o Thus, the Court did not uphold - husband consent for it was viewed as an "undue burden."
Lee v. Weisman (RI- 1992) - Graduation Prayer - J. Scalia's Dissent
o "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 is 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." § Knocking down juris prudence § Not supposed to be socially engineering but following the words of the laws.
Oregon v. Smith (1990) : Justice Scalia held for a 6-3 majority § What about an exemption for the religious group? · Several states have made an exemption for religious ceremonial purposes use of peyote
o "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."
Lee v. Weisman (RI- 1992) - Graduation Prayer - J. Scalia's Dissent
o "But let 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 views of others." ... But if it is a 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 signified 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 even if it were the case that the displaying of such respect might be mistaken for taking part in 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."
Planned Parenthood v Casey (1992) - State Restrictions & undue Burden Test
o Undue burden test - i.e., "a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."
Engel v. Vitale (NY- 1942) - Brief Voluntary Prayer - Justice Hugo Black held for a 6-1 Majority
o "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." § Not just about preventing a majority or state religion § It is the union of Government and Religion, generally speaking. · Destroys government and degrades religion.
Oregon v. Smith (1990) : Justice Scalia held for a 6-3 majority § What about an exemption for the religious group? · Several states have made an exemption for religious ceremonial purposes use of peyote
o "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." § Yeah it might be desirable or permitted § But it is not the same as saying it is constitutionally required.
Court Addresses WI's Main arguments: · (2) Eighth grade education is not enough for modern society
o "Employment of children under parental guidance and on the family farm from age 14 to age 16 is an ancient tradition." Thus, 1st & 14th Amends. Prevent h.s. attendance until 16.
Engel v. Vitale (NY- 1942) - Brief Voluntary Prayer - Justice Potter Stewart dissented
o "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."
Griswold v. Connecticut (1965) - Right to Privacy - Marital relations - J. Arthur Goldberg
o "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 in the Constitution, is supported both by numerous decisions of this Court, ... and by the language and history of the Ninth Amendment." § Not all of the members of the court agree that all of the Amendments apply to the States § The 14th amendment is not limited to just the Bill of Rights. Wanted it to be broader then the US Bill of Rights.
Engel v. Vitale (NY- 1942) - Brief Voluntary Prayer - Justice Potter Stewart dissented - summary of examples from history
o "I do not believe that this Court, or the 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 the 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."
Planned Parenthood v Casey (1992) - State Restrictions & undue Burden Test
o "It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests 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."
Everson v. Board of Education (NJ-1947) - transportation funds to religious and non religious schools J. Hugo Black held for a 5-4 majority
o "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."
Everson v. Board of Education (NJ-1947) - transportation funds to religious and non religious schools J. Hugo Black held for a 5-4 majority - what does the Establishment of Religion mean
o "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 organizations 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]"' § Take it into their right to interpret and determine what the first amendment needs § Took very broad power and then have to deal with it later.
Lee v. Weisman (RI- 1992) - Graduation Prayer - J. Scalia's Dissent
o "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.
Santa Fe School District v. Jane Doe (TX-2000) - Student-led Prayer at Football Games? - CJ Rehnquist Dissent
o "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 than 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....'"
Engel v. Vitale (NY- 1942) - Brief Voluntary Prayer - Justice Potter Stewart dissented
o "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."
Engel v. Vitale (NY- 1942) - Brief Voluntary Prayer - Justice Hugo Black held for a 6-1 Majority
o "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." § Prayer is the most important part of most religions § Here the Government is dictating what should be stated in the prayers
Everson v. Board of Education (NJ-1947) - transportation funds to religious and non religious schools J. Hugo Black held for a 5-4 majority - Wall of Separation
o "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." § Like winning the battle but losing the war § Made it harder for religion to have a role in society
Everson v. Board of Education (NJ-1947) - transportation funds to religious and non religious schools J. Hugo Black held for a 5-4 majority - Busing for all school children is constitutional
o "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]
Weeks v United States (1914) - Fourth Amendment and an Exclusionary Rule for Federal Government - J William Day held for a unanimous Court
o "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."
Regents of the University of California v. Bakke (1978) - Justice Lewis Powell
o "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."
Griswold v. Connecticut (1965) - Right to Privacy - Marital relations - J. hugo Black dissent
o "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 any other formula like it 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 choose 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."
Santa Fe School District v. Jane Doe (TX-2000) - Student-led Prayer at Football Games? - J. John Paul Stevens
o "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."
Griswold v. Connecticut (1965) - Right to Privacy - Marital relations - J. William Douglas held for the majority
o "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."
Lee v. Weisman (RI- 1992) - Graduation Prayer - J. Anthony Kennedy held for the 5-4 majority
o "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 Ed (1947). The State's involvement in the school prayers challenged today violates these central principles."
Fourth Amendment
o "The right of the people to be 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."
Lee v. Weisman (RI- 1992) - Graduation Prayer - J. Anthony Kennedy held for the 5-4 majority
o "The sole question presented is whether a religious exercise may be conducted at a graduation ceremony in circumstances where, as we have found, young 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." § Court has gone beyond the establishment clause of meaning an established religion. § They almost changed the wording of the Constitution to include a separation of church and State rather than one specific religion.
Wisconsin v. Yoder - J William Douglas Dissent
o What 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."`
Roe v. Wade (1973) - Right to an abortion - J Harry Blacmun for a 7-2 majority
o "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."
Brown v. Board of Education (1954) - Taking on the "separate" prong - CJ Earl Warren
o "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 a way unlikely ever to be undone." § Malcolm X wanted separate state for blacks § Historically black schools. Like being segregated and did not want to have to join together with whites.
Engel v. Vitale (NY- 1942) - Brief Voluntary Prayer - Justice Hugo Black held for a 6-1 Majority
o "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:
Brown v. Board of Education (1954) - Taking on the "separate" prong - CJ Earl Warren
o "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." § Public education
Gratz v. Bollinger (2003) - Chief Justice William Rehnquist held for a 6-3 majority
o "We conclude, therefore, that because the University's use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents' 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 violates Title VI." § Think about what really makes grutter Constitutional and Gratz unconstitutional. · They did not like the 20 points · But what is critical mass (more than a benefit to some than 20 points)
Lee v. Weisman (RI- 1992) - Graduation Prayer - J. Anthony Kennedy held for the 5-4 majority - Exception
o "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 a violation." § Might be a situation where the court would uphold student led prayer. § Schools held prayers and therefore it was more okay.
Grutter v. Bollinger (2003) - J Sandra Day O'Connor held - Are Affirmative Action's Days numbered?
o "We expect 25 years from now, the use of racial preferences will no longer be necessary to further the interests approved today."
Lee v. Weisman (RI- 1992) - Graduation Prayer - J. Anthony Kennedy held for the 5-4 majority
o "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.
Engel v. Vitale (NY- 1942) - Brief Voluntary Prayer - Justice Hugo Black held for a 6-1 Majority
o "We think that, by using its public school system to encourage recitation of the Regents' prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause."
Engel v. Vitale (NY- 1942) - Brief Voluntary Prayer - Justice Potter Stewart dissented
o "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 in the spiritual heritage of our Nation."
Roe v. Wade (1973) - Right to an abortion - J Harry Blacmun for a 7-2 majority
o "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 the 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."
Engel v. Vitale (NY- 1942) - Brief Voluntary Prayer - Justice Hugo Black held for a 6-1 Majority
o "[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?" - Madison
Wisconsin v. Yoder - J William Douglas Dissent
o "[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 belief only.'"
Grutter v. Bollinger (2003) - J Sandra Day O'Connor held
o "[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."
Everson v. Board of Education (NJ-1947)- transportation funds to religious and non religious schools J. Hugo Black held for a 5-4 majority - bussing for all school children
o "[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."
Griswold v. Connecticut (1965) - Right to Privacy - Marital relations - J. William Douglas held for the majority
o "specific guarantees 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 the 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."
Brown v. Board of Education (1954) - Taking on the "separate" prong - CJ Earl Warren
o "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."
Santa Fe School District v. Jane Doe (TX-2000) - Student-led Prayer at Football Games? - J. John Paul Stevens
o "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."
Wisconsin v. Yoder - J William Douglas Dissent
o Action which the Court deemed to be antisocial could be punished even though it was grounded on deeply held and sincere religious convictions.
Lee v. Weisman (RI- 1992) - Graduation Prayer - J. Anthony Kennedy held for the 5-4 majority - Exception
o But a student-initiated, student-led prayer may be constitutional.
· The Religious Freedom Restoration Act (1993) (RFRA)
o But in City of 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.
Court Addresses WI's Main arguments: · (2) Eighth grade education is not enough for modern society
o Court held - it was enough for "separated agrarian community that is the keystone of the Amish faith." Plus, more religious and community ed.
Court Addresses WI's Main arguments: (1) First amendment only protects beliefs, not actions
o Court held: "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.... § This is not a blank check, there are areas under the government that are protected by the Government.
· The Religious Freedom Restoration Act (1993) (RFRA)
o However, RFRA still applies to claims against the federal govt § The Feds can try to make rules but when it applies to claims against the State Governments Congress does not have the right to overrule the SCRT.
· The Religious Freedom Restoration Act (1993) (RFRA)
o In the wake of Smith, Congress passed the Religious Freedom Restoration Act, 1993 (RFRA) to "restore the compelling state interest test."
Engel v. Vitale (NY- 1942) - Brief Voluntary Prayer - Justice Potter Stewart dissented - Summary of examples from history
o Presidents have had days of prayer since the beginning of the republic; "IN GOD WE TRUST" has been 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 "one 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."
Lee v. Weisman (RI- 1992) - Graduation Prayer - J. Anthony Kennedy held for the 5-4 majority - Exception
o Some circuits have recognized it; some have not.
Santa Fe School District v. Jane Doe (TX-2000) - Student-led Prayer at Football Games? - CJ Rehnquist Dissent
o 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 on public speaking ability or social popularity. And if student campaigning did begin to focus on prayer, the school might decide to implement reasonable campaign restrictions."
Bill of rights (1791) - Very important to the anti-federalists
o The need for religious amendment originated from antifederalists concerns about a lack of guarantees about religious liberty. § Albany, NY antifederalists (and others) condemned the Constitution for "not securing the rights of conscience in matters of religion, of granting the liberty of worshipping God agreeable to the mode thereby dictated."
Weeks v United States (1914) - Fourth Amendment and an Exclusionary Rule for Federal Government - J William Day held for a unanimous Court
o 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...."
Planned Parenthood v Casey (1992) - State Restrictions & undue Burden Test
o Thus, SCOTUS upheld the below PA regulations (unless there was a medical emergency): § Informed consent, § 24 hours waiting period, § if minors - 1 parent consent (with judicial bypass option),
Cantwell v. Connecticut (1940),
o the SCOTUS held that "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."
o It was largely believed in the colonies that Parliament had no power to tax, only to regulate trade (if that). And that arbitrary govt. was seen as illegitimate.
§ "...at a time when we hear the greatest monarch upon earth declaring from his throne that he glories in the name of Briton and that the privileges of his people are dearer to him than the most valuable prerogatives of his crown; and as it is in opposition to a kind of power, the exercise of which in former periods of history cost one king of England his head and another his throne." · They are also persecuting those who may have smuggled goods. The average person does not know if they have smuggled goods.
Fourteenth Amendment Section 1 (Due Process Clause)
§ "...nor shall any state deprive any person of life, liberty, or property, without due process of law; .... · What do we do when the Federal Government says one thing and States say something else.
o It was largely believed in the colonies that Parliament had no power to tax, only to regulate trade (if that). And that arbitrary govt. was seen as illegitimate.
§ "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." · Guarded by the law and protected by the Constitution. · Why is privacy so important? · How much privacy are we giving up everyday when we get on the internet.
James Otis
§ "And I take this opportunity to declare that...I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other as this Writ of Assistance is."
Bill of rights (1791) - Very important to the anti-federalists - First Amendment, Free-exercise Clause
§ "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."
Dr. Rick A. Griffin, John Jay...
§ "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."
Noah Feldman - What is it about Mormonism?
§ "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 candidate's 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 one ask what those beliefs are."
Dr. Rick A. Griffin, John Jay...
§ "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." · Many believe that this is the most important right that we have been given.
The Framers - No Religious Test - Article VI Section 3
§ "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." · Religious test robbed religious liberty and it made all religions that were not the prominent religion less powerful and less important. · There to help facilitate religious liberty.
Article VI Section 3
§ "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 or Affirmation, to support this Constitution; · Both the US an d the States shall be bound to support the Constitution. Applies to both the National and the State Governments. · Many Framers said that the Articles of Confederation were a Constitution. o The powers were stated in the Articles but they did not really give the power or rights for the National Government to accomplish what they were said that they could do.
o It was largely believed in the colonies that Parliament had no power to tax, only to regulate trade (if that). And that arbitrary govt. was seen as illegitimate.
§ "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."
Noah Feldman - What is it about Mormonism?
§ "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."
Ben Franklin at Federal Constitutional Convention, June 28, 1787
§ "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. · They needed to pay the clergy to pray and they did not have the money to be able to afford this and so they had to look for other options.
Fourteenth Amendment - section 1 - Equal Protection Clause
§ "nor shall any state ... deny to any person within its jurisdiction the equal protection of the laws" · They wanted to make sure that there was equality of free black slaves. (Grant and Lincoln)
Bill of rights (1791) - Very important to the anti-federalists - Among JMAD's Proposed Amendments to the House in, May 8, 1789 was the following language
§ "the civil rights of none shall be abridged on account of religious belief or worship, nor shall nay national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed." · The Framers wanted to have the freedom of religion protected because it was very important, and it meant a lot to them. · They wanted to promote and facilitate religious liberty but they wanted to do it broadly because they did not want a national religion.
· The Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)
§ A law - that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability (see Employment Div., ... of Ore. v. Smith,1990).
Brown II
§ 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" · The courts could have said to do it right away but they didn't they gave it much looser wordage · Worried about another civil war § Fed. District Courts were to review whether school actions constituted good faith implementation of the governing constitutional principles. · We want you to work on it and then have the district courts check up on it.
· The Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)
§ But if the law - is neither neutral nor generally applicable (like the present ordinances), it is unconstitutional unless the law is justified by a compelling interest that is narrowly tailored to that interest. · Outright discrimination against a certain religion is allowed. They were specifically going after this church.
Debate in North Carolina Ratifying Convention, July 30, 1788 - Acts of Congress
§ 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. Everyone 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." Challenges the fact that Congress should have any right to affect religious liberty.
Privacy and same gender sexual relations- determining a fundamental right
§ If the right is not, it is not fundamental - and the govt. only has to show that the regulation in question is reasonably related to a legitimate state interest.
Debate in North Carolina Ratifying Convention, July 30, 1788 - Acts of Congress
§ 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.
Debate in North Carolina Ratifying Convention, July 30, 1788
§ Mr. James Iredell - "I consider the clause under consideration as one of the strongest proofs that could be 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.
Debate in North Carolina Ratifying Convention, July 30, 1788 - Acts of Congress
§ Mr. James Iredell: "Upon the principles I have stated, I confess the restriction on the power of Congress, in this particular, has my 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.
o It was largely believed in the colonies that Parliament had no power to tax, only to regulate trade (if that). And that arbitrary govt. was seen as illegitimate.
§ No Acts 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." · The fortress is the U.S. Constitution and this is because it protects us.
The Constitution - The Framers - 1787
§ The Constitution is more secular than Declaration of Independence (e.g., Creator, Nature's God, Supreme Judge of the universe)
Privacy and same gender sexual relations- determining a fundamental right
§ To be a fundamental unenumerated right it has to be: · "implicit in the concept of ordered liberty (Palkco v. CT 1937), or "deeply rooted in this Nation's history and tradition" (Moore v. East Cleveland,1977).
Article VI, Section 3
§ but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." · They want to put Catholicism and Protestantism under a thumb so that they are not able to change leaders and then change the entire course of the society.
Wisconsin v. Yoder - CJ Warren Burger for a unanimous Court
· "...a State's interest in universal education, however highly we rank it, is not totally free from 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.'" o The Amish were not preparing their kids for greater society due to the fact that they choose to separate themselves from the greater society. o So why should the state be able to force them to learn to belong to this greater society. o They did continue to teach their children in their way of life, so they didn't just drop them off and leave them all alone.
Plessy v. Ferguson (1896) - J Billings brown held
· "...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...."
Roe v. Wade (1973) - Right to an abortion - J Harry Blacmun for a 7-2 majority - Is it an absolute right?
· "..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. o 1st Trimester - State Can't Ban o 2nd Trimester - State Can Reasonably Regulate o 3rd Trimester - State Can Prohibit (unless it's a Mother Health Issue)
Plessy v. Ferguson (1896) - J Billings brown held
· "A statute which implies merely a legal distinction between the 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 13th Amendment]
Plessy v. Ferguson (1896) - J John Marshall Harlan's Dissent
· "But in view of the Constitution, in the eye of the law, there is in this country no 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 as guaranteed by the supreme law of the land are involved."
Roe v. Wade (1973) - Right to an abortion - J Harry Blacmun for a 7-2 majority - Is it an absolute right?
· "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."
Oliver Ellsworth, "Landholder, No. 7" Dec. 17, 1787 - Government has no authority in matters of religion
· "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."
Reynolds v. US (1874) - Distinction Between Practice & Duty - CJ Morrison Waite for a unanimous court
· "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." o Court can't affect beliefs or opinions but they can work around actions.
Plessy v. Ferguson (1896) - J John Marshall Harlan's Dissent
· "Everyone knows that the statute in question had its origin ... not 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."
Mapp v. Ohio (1961) -The exclusionary Rule applied to the States - J Hugo Black concurring opinion
· "I am still not 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.
Plessy v. Ferguson (1896) - J John Marshall Harlan's Dissent
· "In my opinion, the judgment this day...will...be...as pernicious as the decision made by this tribunal in the Dred Scott Case."
Reynolds v. US (1874) - Distinction Between Practice & Duty - CJ Morrison Waite for a unanimous court
· "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.... o They applied this rule to everyone not just the members of the Church but they stated that polygamy was wrong and no one was allowed to practice it.
Oliver Ellsworth, "Landholder, No. 7" Dec. 17, 1787 - Religious Test Laws
· "In short, test-laws are utterly ineffectual: they are no security at all; because men of loose principles will, by 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." o We have got a society that separates church and state. But the original thoughts of many founders was that they didn't want to tell people what religion they had to belong to, but they wanted them to be friends of religion. o A friend to religion doesn't necessarily mean a religious person. § Can be a friend without sharing their convictions. o Religious: coming to church every week or just someone who claims that they are religious and they strive?
Bowers v. Hardwick (1986) - Privacy and Same Gender Sexual Relations - J Byron White held for a 5-4 majority
· "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."
Lawrence v. Texas (2003) - j Kennedy for a 6-3 majority
· "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."
Obergefell v. Hodges (2015) - Same Gender Marriage - J Anthony Kennedy held for a 5-4 majority
· "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." o Involves real people who have real feelings. They have feelings for marriage and they think that they should be the same.
· The Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) - Justice Anthony Kennedy held for a unanimous court
· "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 their official actions violated the Nation's essential commitment to religious freedom. The challenged laws had an 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 judgment of the Court of Appeals."
Cooper v. Aaron (1958) - State Resistance - J. William Brennan for a full court
· "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) CJ 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 Art. 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."
Obergefell v. Hodges (2015) - Same Gender Marriage - CJ John Roberts dissent
· "The majority's decision is an act of will, not legal judgment. The 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 the Aztecs. Just who do we think we are?" o They just want to follow the woke crowd rather than doing the work. o It should have been handled in the legislature and not by 5 people. (political not legal)
Plessy v. Ferguson (1896) - J Billings brown held
· "The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law...." o They are looking into the equal protection of the law De Jure Segregation.
Torcaso v. Watkins (1961) - Justice Hugo Black held for a unanimous Court
· "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.'"
Plessy v. Ferguson (1896) - J John Marshall Harlan's Dissent
· "The sure guarantee of the peace and security of each race is the 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." - Plessy (1896) - Protects intrastate segregation laws
Oregon v. Smith (1990): Justice Blackmun Dissent
· "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.
Torcaso v. Watkins (1961) - Justice Hugo Black held for a unanimous Court
· "This Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion, and therefore cannot be enforced against him."
Oliver Ellsworth, "Landholder, No. 7" Dec. 17, 1787 - Religious Liberty
· "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. o The religious wars were very violent. (plots to kill leaders, terrible crimes committed to those of different religious groups (very evil)) o They want them to be Christian but they are not going to hold them to that because they just want people to be good people.
Oregon v. Smith (1990) : Justice Scalia held for a 6-3 majority
· "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate."
Mapp v. Ohio (1961) -The exclusionary Rule applied to the States - J Tom Clark held for a 6-3 Majority
· "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 makes 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 nonexclusionary 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.
Burwell v. Hobby Lobby Stores, Inc. (2014) - Justice Samuel Alito held for a 5-4 majority
· "We hold that the 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 government interest."
Wolf v Colorado (1949) - Fourth Amendment Warrant Requirement applied to the states (but not the Exclusionary Rule) - J Felix Frankfurter held for a 6-3 majority
· "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 an unreasonable search and seizure." o "fruit from a tainted tree" - if it was obtained illegally then it cannot be used in court if the exclusionary rule were applied.
Torcaso v. Watkins (1961) - Justice Hugo Black held for a unanimous Court
· "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 as against nonbelievers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs."
Steinberg v Carhart (2000) - Partial-Birth Abortion - J. Antonin Scalia's Dissent
· "[t]he notion that the Constitution of the United States... prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd."
Oregon v. Smith (1990): Justice Blackmun Dissent
· * Fear of new churches on drugs and other crimes o Worried that they are trying to solve the drug problem and not worrying about the churches that actually exist.
Plessy v. Ferguson (1896) - J Billings brown held
· ..."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."
Bowers v. Hardwick (1986) - Privacy and Same Gender Sexual Relations - J Byron White held for a 5-4 majority
· ...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."
Bowers v. Hardwick (1986) - Privacy and Same Gender Sexual Relations - J Byron White held for a 5-4 majority
· ...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.
Debate in North Carolina Ratifying Convention July 30, 1788 - Religious Fears (because no religious test and treaties)
· Abbott: "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. ...
Oregon v. Smith (1990) : Justice Scalia held for a 6-3 majority
· 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 from use of the drug."
Oliver Ellsworth, "Landholder, No. 7" Dec. 17, 1787 - Religious Liberty
· 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."
Wisconsin v. Yoder - CJ Warren Burger for a unanimous Court
· 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."
Debate in North Carolina Ratifying Convention July 30, 1788 - Religious Fears (because no religious test and treaties)
· Henry Abbott: "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 should 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." o The Constitution is weak for a reason. The Founders wanted most of the rights and rules to come from the State and Local levels.
Bowers v. Hardwick (1986) - Privacy and Same Gender Sexual Relations - J Byron White held for a 5-4 majority
· In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws.
Bowers v. Hardwick (1986) - Privacy and Same Gender Sexual Relations - J Byron White held for a 5-4 majority
· 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.
Debate in North Carolina Ratifying Convention July 30, 1788 - Religious Fears (because no religious test and treaties)
· 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. o Religious tests bring about very strong and powerful tyranny. o Limited Government and more personal Government. o Weren't allowed to oppose these powerful leaders because it was profane.
Oregon v. Smith (1990): Justice Blackmun Dissent
· One hopes that the Court is aware of the consequences, and that its result is not a product of overreaction to the serious problems the country's drug crisis has generated."
Mapp v. Ohio (1961) -The exclusionary Rule applied to the States - J Hugo Black concurring opinion
· Reflection 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."
Oregon v. Smith (1990) : Justice Scalia held for a 6-3 majority
· Result: Under Smith, now if a law burdens religious practice, but is neutral towards religious practice and generally applied, it is constitutional.
Steinberg v Carhart (2000) - Partial-Birth Abortion
· SCOTUS - struck down law b/c of vague language of what was a "partial-birth abortion" and it caused "an undue hardship" for the woman & doctor.
Debate in North Carolina Ratifying Convention July 30, 1788 - Religious Fears (because no religious test and treaties)
· 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. America has set an example to mankind to think more modestly and reasonably--that a man may be of different religious sentiments from 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." o If you are going to have religious freedom then you must have religious tolerance otherwise you will have a majority and it could be a secular majority. o Many people who are not religious still support religious freedom. If religious factions can be controlled, then so might the rights of those individuals who are not religious. o Freedom of conscience is more powerful then any other right. - Mr Iredell
Mapp v. Ohio (1961) -The exclusionary Rule applied to the States - J Tom Clark held for a 6-3 Majority
· 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 in 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 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."
Reynolds v. US (1874) - Distinction Between Practice & Duty - CJ Morrison Waite for a unanimous court
· This being so, the only question which remains is whether those who make polygamy a part of their religion are excepted from the operation 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." o We have to address this and no in a way that makes religious beliefs superior to everything else. o But this is what happened with the Bill of Rights because it was there to establish a different set of rules because it grants rights to the people.
Oregon v. Smith (1990): Justice Blackmun Dissent
· 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." ... The Court discards leading free exercise cases such as Cantwell ..., and ...Yoder ... as "hybrid." ... In short, it effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution.
§ Alberto Giubilini and Francesca Minerva in the Journal of Medical Ethics (2012-2013)
· [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 a fetus ... rather than to that of a child. Therefore, we claim that killing a newborn could be ethically permissible in all the 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."
Lawrence v. Texas (2003) - J O'Connor concurring opinion - held it was an EPC
· discrimination issue; punishing homosexuals and not heterosexuals fails under rational basis review - in other words, no legitimate state interest is met - unconstitutional
