Con Law Exam 1 (Dr. Winkle)

NEW YORK TIMES v. UNITED STATES

In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co. Question: Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment? Conclusion: Decision: 6 votes for New York Times, 3 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly Yes. In its per curiam opinion the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified. Per Curiam Opinion. Concurring Opinion: Black, Brennan, Douglas, Marshall, Stewart, White Justice Hugo Black wrote an opinion that elaborated on his view of the absolute superiority of the First Amendment. He was against any interference with freedom of expression and largely found the content and source of the documents to be immaterial. Justice William O. Douglas largely concurred with Black, arguing that the need for a free press as a check on government prevents any governmental restraint on the press. Justice William J. Brennan, Jr. wrote separately to explain that the publication of the documents did not qualify as one of the three exceptions to the freedom of expression established in Near v. Minnesota (1931). Justice Potter Stewart and Justice Byron R. White agreed that it is the responsibility of the Executive to ensure national security through the protection of its information. However, in areas of national defense and international affairs, the President of United States possesses great constitutional independence that is virtually unchecked by the Legislative and Judicial branch. "In absence of governmental checks and balances", per Justice Stewart, "the only effective restraint upon executive policy and power in [these two areas] may lie in an enlightened citizenry - in an informed and critical public opinion which alone can here protect the values of democratic government." Justice Thurgood Marshall argued that the term "national security" was too broad to legitimize prior restraint, and also argued that it is not the Court's job to create laws where the Congress had not spoken. Dissenting Opinion: Blackmun, Burger, Harlan Chief Justice Warren E. Burger, dissenting, argued that "the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government", that there should be a detailed study on the effects of these actions. He argued that in the haste of the proceedings, and given the size of the documents, the Court was unable to gather enough information to make a decision. He also argued that the Times should have discussed the possible societal repercussions with the Government prior to publication of the material. The Chief Justice did not argue that the Government had met the aforementioned standard, but rather that the decision should not have been made so hastily. Justice John M. Harlan and Justice Harry A. Blackmun joined the Chief Justice in arguing the faults in the proceedings, and the lack of attention towards national security and the rights of the Executive.

1st Amendment

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

5th Amendment

"No person shal be held to answer for a capital, or otherwise infamous crime, unless a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forced, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offece to be twice put on jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall privte property be taken for public use, without just compensation."

Creation of the Bill of Rights

39/55 delegates signed the constitution in September of 1787, which was then sent tothe states for ratification where it was found that very few social classes of people had "protections" under this law. After strong pressure from The Anti-Federalists, as well as Thomas Jefferson, James Madison took it upon himself to create the Bill of Rights. Madison took from the Constitution 100 different things, and initially ended up with 29 Bill of Rights, which he reduced to 17, and the state eventualy reduced to 12. The 2 amendments the state rejected right off the bat was the fixed number of population, and paid increases for members of state legislation. Eventually, only the third through the twelfth amendments were approved.

Santa Clara Pueblo v. Martinez

436 U.S. 49 (1978) involved a request to stop denying tribal membership to those children born to female (not male) tribal members who married outside of the tribe. The mother who made the case pleaded that the discrimination against her child was solely based on sex, which violated the Indian Civil Rights Act of 1968. The courts decided that "...tribal common-law sovereign immunity prevented a suit against the tribe." This decision ultimately strengthened tribal self-determination by further proving that generally, the federal government played no enforcement role over the tribal governments. Facts: Petitioner Santa Clara Pueblo is an Indian tribe that has been in existence since at least the 15th century. Respondents, Julia Martinez, a full-blooded member of the Santa Clara Pueblo, and her daughter brought suit in federal court against the tribe and its Governor, petitioner Lucario Padilla, seeking declaratory and injunctive relief against enforcement of a tribal ordinance denying membership in the tribe to children of female members who marry outside the tribe, while extending membership to children of male members who marry outside the tribe. Respondents claimed that this rule discriminates on the basis of both sex and ancestry in violation of Title I of the Indian Civil Rights Act of 1968, which provides in relevant part that "[no] Indian tribe in exercising powers of self-government shall . . . deny to any person within its jurisdiction the equal protection of its laws." Issue: Whether a federal court may pass on the validity of an Indians tribe's ordinance denying membership to the children of certain female tribal members. Holding: Suits against the tribe under the Indian Civil Rights Act of 1968 are barred by the tribe's sovereign immunity from suit, since nothing on the face of the ICRA purports to subject tribes to the jurisdiction of federal courts in civil actions for declaratory or injunctive relief. Nor does the ICRA impliedly authorize a private cause of action for declaratory and injunctive relief against the Pueblo's Governor. Congress' failure to provide remedies other than habeas corpus for enforcement of the ICRA was deliberate, as is manifest from the structure of the statutory scheme and the legislative history of Title I. Importance: Greatly limited the impact of the Indian Civil Rights Act of 1968. Opinion of the Court: Marshall Concurring Opinion: N/A Dissenting Opinion: White The declared purpose of the Indian Civil Rights Act of 1968 (ICRA or Act), 25 U.S.C. 1301-1341, is "to insure that the American Indian is afforded the broad constitutional rights secured to other Americans." S. Rep. No. 841, 90th [436 U.S. 49, 73] Cong., 1st Sess., 6 (1967) (hereinafter Senate Report). The Court today, by denying a federal forum to Indians who allege that their rights under the ICRA have been denied by their tribes, substantially undermines the goal of the ICRA and in particular frustrates Title I's purpose of "protect[ing] individual Indians from arbitrary and unjust actions of tribal governments." Ibid. Because I believe that implicit within Title I's declaration of constitutional rights is the authorization for an individual Indian to bring a civil action in federal court against tribal officials for declaratory and injunctive relief to enforce those provisions. I dissent.

COHEN v. CALIFORNIA

A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "**** THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail. Question: Did California's statute, prohibiting the display of offensive messages such as "**** the Draft," violate freedom of expression as protected by the First Amendment? Conclusion: Decision: 5 votes for Cohen, 4 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly Yes. In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas). Opinion of the Court: Harlan Concurring Opinion: N/A Dissenting Opinion: Blackmun In a dissenting opinion, Justice Harry Blackmun, joined by Burger and Black, suggested that Cohen's wearing of the jacket in the courthouse was not speech but conduct (an "absurd and immature antic") and therefore not protected by the First Amendment. The second paragraph of Blackmun's dissent noted that the Supreme Court of California construed section 415 in In re Bushman 1 Cal.3d 767, 83 Cal.Rptr. 375 (Cal, 1970), which was decided after the Court of Appeal of California's decision in Cohen v. California and the Supreme Court of California's denial of review. Blackmun wrote that the case "ought to be remanded to the California Court of Appeal for reconsideration in the light of the subsequently rendered decision by the State's highest tribunal in Bushman."

HILL v. COLORADO

A Colorado statute makes it unlawful for any person within 100 feet of a health care facility's entrance to "knowingly approach" within 8 feet of another person, without that person's consent, in order to pass "a leaflet or handbill to, display a sign to, or engage in oral protest, education, or counseling with [that] person...." Leila Hill and others, sidewalk counselors who offer abortion alternatives to women entering abortion clinics, sought to enjoin the statute's enforcement in state court, claiming violations of their First Amendment free speech rights and right to a free press. In dismissing the complaint, the trial court held that the statute imposed content-neutral time, place, and manner restrictions narrowly tailored to serve a significant government interest and left open ample alternative channels of communication. The Colorado Court of Appeals affirmed, and the Colorado Supreme Court denied review. The U.S. Supreme Court vacated that judgment after holding that a provision creating a speech-free floating buffer zone with a 15-foot radius violated the First Amendment. On remand, the Colorado Court of Appeals reinstated its judgment. In affirming, the Colorado Supreme Court reiterated the lower court's conclusions. The court concluded that the statute struck a proper balance between a person's right to protest and a person's right to medical treatment. Question: Does Colorado's statutory requirement that speakers obtain consent from people within 100 feet of a health care facility's entrance before speaking, displaying signs, or distributing leaflets to such people violate the First Amendment rights of the speaker? Conclusion: Decision: 6 votes for Colorado, 3 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly No. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the Colorado statute's restrictions on speech-related conduct are constitutional. The Court concluded that the statute "is not a regulation of speech. Rather, it is a regulation of the places where some speech may occur." "Although the statute prohibits speakers from approaching unwilling listeners, it does not require a standing speaker to move away from anyone passing by. Nor does it place any restriction on the content of any message that anyone may wish to communicate to anyone else, either inside or outside the regulated areas. It does, however, make it more difficult to give unwanted advice, particularly in the form of a handbill or leaflet, to persons entering or leaving medical facilities," Justice Stevens wrote for the Court. "The unwilling listener's interest in avoiding unwanted communication has been repeatedly identified in our cases." Justices Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy dissented. Opinion of the Court: Stevens Concurring Opinion: Souter, O'Connor, Ginsburg and Breyer 1. This legislation seeks to prevent unwanted approaching, not speech. Dissenting Opinion: Kennedy, Scalia and Thomas Justices Scalia and Thomas dissenting: 1. This law is not content neutral as it is obviously only being applied to abortion clinics and anti-abortion messages. 2. Protecting citizens from unwanted speech is not a compelling state interest. 3. The amount of places actually being covered by this statute is very large if one considers the extensive amount of healthcare facilities there are. So, speech is being restricted very significantly. 4. This law removes one of the few outlets in which peaceful and civil pro-life citizens could get their point across to women considering abortion; now only inappropriate bullying groups will be heard. 5. This opinion of the court is in conflict with other First Amendment restriction cases. The only reason the Court is changing now is because the messages are not content neutral - it is about abortion. Kennedy dissenting: 1. This legislation is definitely content based and is in direct violation of the First Amendment.

EVERSON v. BOARD OF EDUCATION

A New Jersey law allowed reimbursements of money to parents who sent their children to school on buses operated by the public transportation system. Children who attended Catholic schools also qualified for this transportation subsidy. Question: Did the New Jersey statute violate the Establishment Clause of the First Amendment as made applicable to the states through the Fourteenth Amendment? Conclusion: No. A divided Court held that the law did not violate the Constitution. After detailing the history and importance of the Establishment Clause, Justice Black argued that services like bussing and police and fire protection for parochial schools are "separate and so indisputably marked off from the religious function" that for the state to provide them would not violate the First Amendment. The law did not pay money to parochial schools, nor did it support them directly in anyway. It was simply a law enacted as a "general program" to assist parents of all religions with getting their children to school. Opinion of the Court: Black Concurring Opinion: N/A Dissenting Opinion: Jackson, Rutledge The plan supports religious training and belief through the use of government funds. The funds for the plan are taken from taxes levied on citizens of all faiths and should not be used to further the religious education of children of other faiths, thereby violating the Establishment Clause. If it is permissible to pay for the transportation to private religious school on the grounds it promotes education, then why not pay for the entire costs of the schooling on these same grounds? NEUTRALITY: in that it was serving a secular purpose, because it was in order to provide public transportation as a public safety measure for kids (GENERAL WELFARE) **Important because it nationalizes the Establishment Clause, and introduces us to a secular purpose behind the law, and looks at what the primary effect is.

HUSTLER MAGAZINE v. FALWELL

A lead story in the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Falwell, a Fundamentalist minister and political leader, had a drunken incestuous relationship with his mother in an outhouse. Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. Falwell won a jury verdict on the emotional distress claim and was awarded a total of $150,000 in damages. Hustler Magazine appealed. Question: Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress? Conclusion: Decision: 8 votes for Hustler Magazine, 0 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly Yes. In a unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject. Opinion of the Court: Rehnquist Concurring Opinion: White As I see it, the decision in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), has little to do with this case, for here the jury found that the ad contained no assertion of fact. But I agree with the Court that the judgment below, which penalized the publication of the parody, cannot be squared with the First Amendment. Justice Byron White, concurrence, Hustler Magazine v. Falwell, Supreme Court of the United States, 485 U.S. 46 (1988) Dissenting Opinion: Kennedy

NAACP v. ALABAMA

As part of its strategy to enjoin the NAACP from operating, Alabama required it to reveal to the State's Attorney General the names and addresses of all the NAACP's members and agents in the state. Question: Did Alabama's requirement violate the Due Process Clause of the Fourteenth Amendment? Conclusion: Decision: 9 votes for NAACP, 0 vote(s) against Legal provision: Association Yes. The unanimous Court held that a compelled disclosure of the NAACP's membership lists would have the effect of suppressing legal association among the group's members. Nothing short of an "overriding valid interest of the State," something not present in this case, was needed to justify Alabama's actions. Opinion of the Court: Harlan Concurring Opinion: N/A Dissenting Opinion: N/A

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION

Citizens United sought an injunction against the Federal Election Commission in the United States District Court for the District of Columbia to prevent the application of the Bipartisan Campaign Reform Act (BCRA) to its film Hillary: The Movie. The Movie expressed opinions about whether Senator Hillary Rodham Clinton would make a good president. In an attempt to regulate "big money" campaign contributions, the BCRA applies a variety of restrictions to "electioneering communications." Section 203 of the BCRA prevents corporations or labor unions from funding such communication from their general treasuries. Sections 201 and 311 require the disclosure of donors to such communication and a disclaimer when the communication is not authorized by the candidate it intends to support. Citizens United argued that: 1) Section 203 violates the First Amendment on its face and when applied to The Movie and its related advertisements, and that 2) Sections 201 and 203 are also unconstitutional as applied to the circumstances. The United States District Court denied the injunction. Section 203 on its face was not unconstitutional because the Supreme Court in McConnell v. FEC had already reached that determination. The District Court also held that The Movie was the functional equivalent of express advocacy, as it attempted to inform voters that Senator Clinton was unfit for office, and thus Section 203 was not unconstitutionally applied. Lastly, it held that Sections 201 and 203 were not unconstitutional as applied to the The Movie or its advertisements. The court reasoned that the McConnell decision recognized that disclosure of donors "might be unconstitutional if it imposed an unconstitutional burden on the freedom to associate in support of a particular cause," but those circumstances did not exist in Citizen United's claim. Question: 1) Did the Supreme Court's decision in McConnell resolve all constitutional as-applied challenges to the BCRA when it upheld the disclosure requirements of the statute as constitutional? 2) Do the BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering requirements because they are protected "political speech" and not subject to regulation as "campaign speech"? 3) If a communication lacks a clear plea to vote for or against a particular candidate, is it subject to regulation under the BCRA? 4) Should a feature length documentary about a candidate for political office be treated like the advertisements at issue in McConnell and therefore be subject to regulation under the BCRA? Conclusion: Decision: 5 votes for Citizens United, 4 vote(s) against Legal provision: No. No. Yes. Yes. The Supreme Court overruled Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC. (In the prior cases, the Court had held that political speech may be banned based on the speaker's corporate identity.) By a 5-to-4 vote along ideological lines, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited. Justice Anthony M. Kennedy wrote for the majority joined by Chief Justice John G. Roberts and Justices Antonin G. Scalia, Samuel A. Alito, and Clarence Thomas. Justice John Paul Stevens dissented, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotamayor. The majority maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation. The majority also held that the BCRA's disclosure requirements as applied to The Movie were constitutional, reasoning that disclosure is justified by a "governmental interest" in providing the "electorate with information" about election-related spending resources. The Court also upheld the disclosure requirements for political advertising sponsors and it upheld the ban on direct contributions to candidates from corporations and unions. In a separate concurring opinion, Chief Justice Roberts, joined by Justice Alito, emphasized the care with which the Court handles constitutional issues and its attempts to avoid constitutional issues when at all possible. Here, the Court had no narrower grounds upon which to rule, except to handle the First Amendment issues embodied within the case. Justice Scalia also wrote a separate concurring opinion, joined by Justices Alito and Thomas in part, criticizing Justice Stevens' understanding of the Framer's view towards corporations. Justice Stevens argued that corporations are not members of society and that there are compelling governmental interests to curb corporations' ability to spend money during local and national elections. Opinion of the Court: Kennedy Concurring Opinion: Roberts, joined by Alito, Scalia, joined by Alito; Thomas (in part) Dissenting Opinion: Stevens, Ginsburg, Breyer, Sotomayor A dissenting opinion by Justice Stevens was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. To emphasize his unhappiness with the majority, Stevens took the relatively rare step of reading part of his 90 page dissent from the bench. Stevens concurred in the Court's decision to sustain BCRA's disclosure provisions, but dissented from the principal holding of the majority opinion. The dissent argued that the Court's ruling "threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution." He wrote: "A democracy cannot function effectively when its constituent members believe laws are being bought and sold."

Civil Rights v. Civil Liberties

Civil Liberties are guarantees which protect us from intrusion by government. (With civil liberties, the common view is to look on the government as a bad thing/entity) Civi Rights suggest a much more positive role for government, in that it has an affirmative duty to be sure everyone is included in its political realm; basically the government taking positive action to ensure the participation of everyone.

UNITED STATES v. O'BRIEN

David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime. Question: Was the law an unconstitutional infringement of O'Brien's freedom of speech? Conclusion: Decision: 7 votes for United States, 1 vote(s) against Legal provision: Selective Service, Military Selective Service, or Universal Military Service and Training Acts No. The 7-to-1 majority, speaking through Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government's interest. "[W]e think it clear," wrote Warren," that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest." Opinion of the Court: Warren Concurring Opinion: Harlan Justice Harlan, though joining Warren's opinion, wrote a brief separate concurrence. Harlan wished to extend First Amendment protection to instances in which, though the majority's test was satisfied, the regulation at issue additionally had "the effect of entirely preventing a 'speaker' from reaching a significant audience with whom he could not otherwise lawfully communicate." This was adopted in later cases by the Court as an additional prong of the O'Brien test, that the regulation must leave (as phrased in later decisions) "ample alternative channels" of communication. As Harlan felt that O'Brien had other means by which he could communicate his message, he had no problem affirming his conviction. Dissenting Opinion: Douglas Justice Douglas was the sole dissenter. Though he did not express disagreement with the Court's First Amendment analysis, he believed that the asserted government interest was only valid when the nation was in a state of war as declared by Congress (which had not been the case since World War II). Douglas questioned whether a peacetime draft was even constitutional, and wanted to reschedule O'Brien for reargument along with two cases challenging the draft that were denied review by the Court the same day O'Brien was handed down, even though the parties in O'Brien had not presented arguments or briefs on that issue. Not Participating: Marshall

NEW YORK TIMES v. SULLIVAN

Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment. Question: Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections? Conclusion: Decision: 9 votes for New York Times, 0 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed. Opinion of the Court: Brennan Concurring Opinion: Black, Goldberg, Douglas In separate concurring opinions, Justices Hugo and Douglas differed with Justice Brennan over whether the press should ever be held liable in Defamation of public officials. They concluded that the First Amendment provided an absolute Immunity for criticism of the way public officials do their public duty. Anything less than absolute immunity encourages "deadly danger" to a free press by state libel laws that harass, punish, and ultimately destroy critics.

SCHENCK v. UNITED STATES

During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. Question: Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment? Conclusion: Decision: 9 votes for United States, 0 vote(s) against Legal provision: 1917 Espionage Act; US Const Amend 1 Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be punished. Opinion of the Court: Holmes Concurring Opinion: N/A Dissenting Opinion: N/A

The Establishment Clause (cases)

Everson v. Board of Education; Lemon v. Kurtzman; Agostini v. Felton; Schempp v. Addington; Lee v. Weisman; Santa Fe Independent School District v. Joe; Zelman v. Simmons-Harris; Van Orden v. Perry; Salazar v. Buono

Split Traditions

Francis Biddle described this as the "Jekyll and Hyde Tradition" (Bright and Dark) Bright Tradition- exemplified by the best of the British Enlightenment, basically in the thought that "All men are created equal", liberty and quality for all, in respect for all minorities. Dark Tradition- these supressions of liberty often stemmed from racial, ethnic, religious and gender intolerance. "The dark exposes our dosrespect for human liberty and even human life." Biddle would say these twin traditions are the American heritage in civil liberties and civil rights. All laws are conditional, because government's first and prevailing interest is in maintaining order.

PALKO v. CONNECTICUT

Frank Palko had been charged with first-degree murder. He was convicted instead of second-degree murder and sentenced to life imprisonment. The state of Connecticut appealed and won a new trial; this time the court found Palko guilty of first-degree murder and sentenced him to death. Question: Does Palko's second conviction violate the protection against double jeopardy guaranteed by the Fifth Amendment because this protection applies to the states by virtue of the Fourteenth Amendment's due process clause? Conclusion: Decision: 8 votes for Connecticut, 1 vote(s) against Legal provision: US Const. Amend 5 (double jeopardy); US Const. Amend 14 The Supreme Court upheld Palko's second conviction. In his majority opinion, Cardozo formulated principles that were to direct the Court's actions for the next three decades. He noted that some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right. Palko died in Connecticut's electric chair on April 12, 1938. Opinion of the Court: Cardozo Justice Cordozo came up with guidelines to determine when/if said right in question was in fact a fundamental right. This was a DOCTRINAL approach, in which Cordozo created a new framework which lawmakers after him could use to make rational decisions. (known as the "Hayday of the Nationalization of the Bill of Rights") In 1969, thos decision is overturned and "double jeopardy is added to the list of funadametal rights)

The Articles of Confederation

Gave power to the states, a "friendship league among states"; took power away from the legislation. Gave rise to a system on the verge of collapse, because of lack of revenue it was bringing in, because they were not able to tax through this system.

SALAZAR v. BUONO

In 1934, the Veterans of Foreign Wars built a wooden cross on top of Sunrise Rock in the Mojave National Preserve (Preserve) as a memorial to those who died in World War I. The original cross no longer exists, but has been rebuilt several times. Frank Buono, a former Preserve employee, filed suit in a California federal district court seeking to prevent the permanent display of the cross. The genesis of his suit occurred in 1999 when a request to build a Buddhist shrine in the Preserve, near the cross, was denied. He argued that the cross' display on federal property violated the Establishment Clause of the First Amendment. The district court agreed and the cross was covered. While the case was pending, Congress designated Sunrise Rock a national memorial and barred its dismantling with the use of federal funds. One year later, by land swap, Congress made Sunrise Rock private property in exchange for another parcel of land. Mr. Buono moved to not only enforce the previous court order preventing the display of the cross, but also to prohibit the land swap. The district court granted both motions. The Secretary of the Interior appealed, arguing that the district court abused its discretion. On appeal, the U.S. Court of Appeals for the Ninth Circuit held that the district court did not abuse its discretion. The court reasoned that the government failed to show that the district court's fact findings or legal standards were clearly erroneous, nor did it show that the district court made an error in judgment. Read the Briefs for this Case Question: 1) Can Mr. Buono's suit be maintained when he is merely offended by the fact that public land on which a cross is displayed is not a forum for other religious symbols? 2) Did the U.S. Court of Appeals for the Ninth Circuit err in not giving effect to Congress's land swap where Sunrise Rock was made private land? Conclusion: Decision: 5 votes for Salazar, 4 vote(s) against Legal provision: Establishment Clause, Amendment 1 Yes. Yes. The Supreme Court reversed the Ninth Circuit. With Justice Anthony M. Kennedy writing for the plurality, the Court held that Mr. Buono has standing to maintain this action. Justice Kennedy reasoned that when a party obtains a judgment in its favor, like Mr. Buono, it acquires a "judicially cognizable" interest in ensuring compliance with that judgment. The plurality also held that the district court erred in preventing the government from implementing the land-transfer statute in order to protect Mr. Buono's rights. A court may not order an injunction when it fails to consider all the circumstances bearing on the need for preventive relief. The district court failed to consider the context in which the land-transfer statute was enacted. Justice Kennedy concluded that upon remand the court should conduct a proper inquiry into the continued need for preventive relief in light of the statute. Justice Samuel A. Alito wrote separately, concurring in part and concurring in the judgment. The district court should not reach the issue whether the implementation of the land-transfer statute would violate the district court's injunction or the Establishment Clause of the First Amendment. Justice Antonin G. Scalia, joined by Justice Clarence Thomas, also wrote separately, concurring in the judgment. Mr. Buono lacked standing; and therefore, the Supreme Court should not have addressed the merits of his claim. Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Sonia Sotamayor, dissented. The district court was correct in preventing the enforcement of Congress' land-transfer statute because the statute was designed to leave the cross in place thus violating the Establishment Clause. Opinion of the Court: Kennedy, joined by Roberts, Alito (in part) Concurrence: Roberts, Scalia, joined by Thomas, Alito Roberts: At oral argument, respondent's counsel stated that it "likely would be consistent with the injunction" for the Government to tear down the cross, sell the land to the Veterans of Foreign Wars, and return the cross to them, with the VFW immediately raising the cross again. Tr. of Oral Arg. 44. I do not see how it can make a difference for the Government to skip that empty ritual and do what Congress told it to do—sell the land with the cross on it. "The Constitution deals with substance, not shadows." Cummings v. Missouri , 4 Wall. 277, 325 (1867). Dissent: Stevens, joined by Ginsburg, Sotomayor, Breyer ​ Justice Stevens , with whom Justice Ginsburg and Justice Sotomayor join, dissenting. The question in this case is whether Congress' subsequent decision to transfer ownership of the property underlying the cross cured that violation. "The Establishment Clause, if nothing else, prohibits government from 'specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ.' (Stevens, J., dissenting) (Quoting Lee v. Weisman, 641 (1992) (Scalia, J., dissenting)). A Latin cross necessarily symbolizes one of the most important tenets upon which believers in a benevolent Creator, as well as nonbelievers, are known to differ. In my view, the District Court was right to enforce its prior judgment by enjoining Congress' proposed remedy—a remedy that was engineered to leave the cross intact and that did not alter its basic meaning. I certainly agree that the Nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message.

DENNIS v. UNITED STATES

In 1948, the leaders of the Communist Party of America were arrested and charged with violating provisions of the Smith Act. The Act made it unlawful to knowingly conspire to teach and advocate the overthrow or destruction of the United States government. Party leaders were found guilty and lower courts upheld the conviction. Question: Did the Smith Act's restrictions on speech violate the First Amendment? Conclusion: Decision: 5 votes for United States, 3 vote(s) against Legal provision: US Const Amend 1; 18 U.S.C. §§ 10, 11 In a 6-to-2 decision, the Court upheld the convictions of the Communist Party leaders and found that the Smith Act did not "inherently" violate the First Amendment. In the plurality opinion, the Court held that there was a distinction between the mere teaching of communist philosophies and active advocacy of those ideas. Such advocacy created a "clear and present danger" that threatened the government. Given the gravity of the consequences of an attempted putsch, the Court held that success or probability of success was not necessary to justify restrictions on the freedom of speech. Opinion of the Court: Frankfurter, Jackson Concurring Opinion: Black, Douglas Dissenting Opinion: Clark These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date: The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids. I would hold 3 of the Smith Act authorizing this prior restraint unconstitutional on its face and as applied.... So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress' or our own notions of mere "reasonableness." Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those "safe" or orthodox views which rarely need its protection.... There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.

TEXAS v. JOHNSON

In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court. Question: Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment? Conclusion: Decision: 5 votes for Johnson, 4 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Opinion of the Court: Brennan Concurring Opinion: Kennedy For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases. *** Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt. Dissenting Opinion: Rehnquist, Stevens The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.

LEE v. WEISMAN

In keeping with the practice of several other public middle and high school principals in Providence, Rhode Island, Robert E. Lee, a middle school principal, invited a rabbi to speak at his school's graduation ceremony. Daniel Weisman's daughter, Deborah, was among the graduates. Hoping to stop the rabbi from speaking at his daughter's graduation, Weisman sought a temporary restaining order in District Court - but was denied. After the ceremony, where prayers were recited, Weisman filed for a permanent injunction barring Lee and other Providence public school officials from inviting clergy to deliver invocations and benedictions at their schools' ceremonies. When the Court of Appeals affirmed a District Court ruling against the schools, Lee appealed to the Supreme Court and was granted certiorari. Question: Does the inclusion of clergy who offer prayers at official public school ceremonies violate the Establishment Clause of the First Amendment? Conclusion: Decision: 5 votes for Weisman, 4 vote(s) against Legal provision: Establishment of Religion Yes. In a 5-to-4 decision, the Court held that government involvement in this case creates "a state-sponsored and state-directed religious exercise in a public school." Such conduct conflicts with settled rules proscribing prayer for students. The school's rule creates subtle and indirect coercion (students must stand respectfully and silently), forcing students to act in ways which establish a state religion. The cornerstone principle of the Establishment Clause is that government may not compose official prayers to recite as part of a religious program carried on by government. Opinion of the Court: Kennedy Concurring Opinion: Blackmun, Souter Justice Blackmun's concurrence stressed that "our decisions have gone beyond prohibiting coercion, however, because the Court has recognized that 'the fullest possible scope of religious liberty,' entails more than freedom from coercion." Blackmun emphasized that even if no one was compelled, directly or indirectly, to participate in a state-sponsored religious exercise, the government was still without power to place its imprimatur on any religious activity. Justice Souter devoted his concurring opinion to a historical analysis rebutting the contention that the government could endorse nonsectarian prayers. He cited the writings of James Madison and pointed to the changing versions of the First Amendment that the First Congress considered as opposed to the version it eventually adopted. Souter, too, took issue with the school district's defense of non-coercive religious exercises, dismissing the position as without precedential authority. Dissenting Opinion: Scalia Justice Scalia's dissent argued against the coercion test: "In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court - with nary a mention that it is doing so - lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion..." 505 U.S. 577, 632.

NEAR v. MINNESOTA EX REL. OLSON

Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance. Question: Does the Minnesota "gag law" violate the free press provision of the First Amendment? Conclusion: The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against previous restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding. Opinion of the Court: Hughes Concurring Opinion: N/A Dissenting Opinion: Butler The decision of the Court in this case declares Minnesota and every other State powerless to restrain by injunction the business of publishing and circulating among the people malicious, scandalous and defamatory periodicals that in due course of judicial procedure has been adjudged to be a public nuisance. It gives to freedom of the press a meaning and a scope not heretofore recognized, and construes "liberty" in the due process clause of the Fourteenth Amendment to put upon the States a federal restriction that is without precedent.

BARRON v. MAYOR AND CITY COUNCIL OF BALTIMORE

John Barron was co-owner of a profitable wharf in the harbor of Baltimore. As the city developed and expanded, large amounts of sand accumulated in the harbor depriving Barron of the deep waters which had been the key to his successful business. He sued the city to recover a portion of his financial losses. QUESTION: Does the Fifth Amendment deny the right to take private property for public use without justly compensating the property's owner? No. The Court announced its decision in this case without even hearing the arguments of the City of Baltimore. Writing for the unanimous Court, Chief Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states. Opinion of the Court: Marshall

WISCONSIN v. YODER

Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs. Question: Did Wisconsin's requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons? Conclusion: Decision: 7 votes for Yoder, 0 vote(s) against Legal provision: Free Exercise of Religion In a unamimous decision, the Court held that individual's interests in the free exercise of religion under the First Amendment outweighed the State's interests in compelling school attendance beyond the eighth grade. In the majority opinion by Chief Justice Warren E. Burger, the Court found that the values and programs of secondary school were "in sharp conflict with the fundamental mode of life mandated by the Amish religion," and that an additional one or two years of high school would not produce the benefits of public education cited by Wisconsin to justify the law.Justice William O. Douglas filed a partial dissent but joined with the majority regarding Yoder. Opinion of the Court: Burger Concurring Opinion: Stewart, White This case in no way involves any questions regarding the right of the children of Amish parents to attend public high schools, or any other institutions of learning, if they wish to do so. As the Court points out, there is no suggestion whatever in the record that the religious beliefs of the children here concerned differs in any way from those of their parents. Only one of the children testified. Dissenting in Part: Douglas "I agree with the Court that the religious scruples of the Amish are opposed to the education of their children beyond the grade schools, yet I disagree with the Court's conclusion that the matter is within the dispensation of parents alone. The Court's analysis assumes that the only interests at stake in the case are those of the Amish parents on the one hand, and those of the State on the other. The difficulty with this approach is that, despite the Court's claim, the parents are seeking to vindicate not only their own free exercise claims, but also those of their high-school-age children.... On this important and vital matter of education, I think the children should be entitled to be heard. While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanographer. To do so he will have to break from the Amish tradition. It is the future of the students, not the future of the parents, that is imperiled by today's decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may rebel. It is the student's judgment, not his parents', that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny. If he is harnessed to the Amish way of life by those in authority over him and if his education is truncated, his entire life may be stunted and deformed. The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today." Not Participating: Powell, Rehnquist

"Stare Decisis"

Latin for "let the decision stand". Refers to a prior court ruling called a "precedent". In Doctrinalism (based upon the argument that it is the development of the document over time which gives it its meaning), the current situations and events are given precedence. This is largely the way the Supreme Court works. In valuing precedence, you establish a sense of a "stable" government, and a sense of consistency.

Principal Values of Liberties & Rights

Liberty and Equality- if all people are equal however, you don't have the freedom to be different Equality of Opportunity- same opportunity to succeed or fail (right to treatment as an equal) Equality of Result- the right to equal treatment; Affirmative Action was created to ensure Equality of Result

Textualism

Looking at the "language" of the Constitution, or the statutes in its deciding what it means. Therefore, while an originalist would look at the CONTEXT of the times, textualists would look at the CONTENT.

UNITED STATES v. WILLIAM

Michael Williams was convicted in federal district court of "pandering" (promoting) child pornography. The PROTECT Act proscribes the pandering of "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe" that the material is illegal child pornography. The Act represents Congress's attempt to outlaw sexually explicit images of children - including both images of real children and computer-generated images of realistic virtual children. The Supreme Court struck down Congress's previous effort as overbroad in Ashcroft v. Free Speech Council, because the law as written could have outlawed artwork that was neither obscene nor child pornography. Williams argued that the PROTECT Act was similarly overbroad, but the district court held that the government can legitimately outlaw the pandering of material as child pornography, even if the material is not in fact child pornography. The U.S. Court of Appeals for the Eleventh Circuit reversed the lower court and struck down the PROTECT Act as unconstitutionally overbroad. The Eleventh Circuit was unmoved by the government's argument that prosecuting the promotion of virtual child pornography as real is necessary to combat the child porn market. The Circuit Court held that the Act's prohibition was broad enough to include any "braggart, exaggerator, or outright liar" who claims in a non-commercial context to have child pornography but actually does not. Thus, the Act's pandering provision prohibited protected speech as well as actual child pornography. Question: Does the PROTECT Act abridge First Amendment freedom of speech by outlawing the pandering of material that is believed to be, or claimed to be, illegal child pornography? Conclusion: Decision: 7 votes for United States, 2 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly No. Justice Antonin Scalia, writing for a seven-Justice majority, held that the statute was not overly broad as written. Justice Scalia noted specifically that offers to engage in illegal transactions are categorically excluded from First Amendment protection, and he characterized the speech of an individual claiming to be in possession of child pornography in this category of unprotected speech. He also stated that the law did not violate Due Process because its requirements were clear and could be understood by courts, juries and potential violators. Justice David Souter filed the only dissenting opinion, in which Justice Ruth Bader Ginsburg joined. Opinion of the Court: Scalia Concurring Opinion: Stevens The dissent argues that the statute impermissibly undermines our First Amendment precedents insofar as it covers proposals to transact in constitutionally protected material. It is true that proof that a pornographic but not obscene representation did not depict real children would place that representation on the protected side of the line. Dissenting Opinion: Souter The tension with existing constitutional law is obvious, Free Speech Coalition reaffirmed that non-obscene virtual pornographic images are protected, because they fail to trigger the concern for child safety that disentitles child pornography to First Amendment Protection.

MILLER v. CALIFORNIA

Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings. Question: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee? Conclusion: Decision: 5 votes for Miller, 4 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity established in Roth v. United States and Memoirs v. Massachusetts, holding that "[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The Court rejected the "utterly without redeeming social value" test of the Memoirs decision. Opinion of the Court: Burger Concurring Opinion: N/A Dissenting Opinion: Douglas, Brennan Today we leave open the way for California, to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today is decision were never the part of any law.

GONZALES v. O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL

O Centro Espirita Benficiente Uniao do Vegetal (UDV), a religious organization, brought suit in federal court to prevent the government from interfering with UDV's use of hoasca, a substance used during religious ceremonies that contains a drug prohibited by the Controlled Substances Act. UDV argued that the Religious Freedom Restoration Act, which prohibits substantial imposition on religious practices in the absence of a compelling government interest, established their right to use hoasca. The district court sided with UDV and the Tenth Circuit Court of Appeals affirmed, finding that the government had not sufficiently proved the alleged health risks posed by hoasca and could not show a substantial risk that the drug would be abuse recreationally. In response to the Attorney General's argument that prohibiting the drug was required by an international treaty, the court ruled that the government had failed to "narrowly tailor" its prohibition of the drug. Question: Does the Religious Freedom Restoration Act of 1993 require the government to permit the importation, distribution, possession and use of an otherwise illegal drug by a religious organization when Congress has found that the drug has a high potential for abuse, is unsafe for use even under medical supervision, and violates an international treaty when imported or distributed? Conclusion: Decision: 8 votes for O Centro Espirita Beneficiente Uniao Do Vegetal, 0 vote(s) against Legal provision: Yes. In a unanimous 8-0 decision (Justice Alito not participating), the Court held that the government had failed to prove a compelling interest in regulating the UDV's use of drugs for religious purposes. Writing for the Court, Chief Justice John Roberts rejected the government's argument that the Controlled Substances Act could accommodate no exceptions. On the contrary, Justice Roberts wrote, the Court is required by the RFRA to examine individual religious freedom claims and grant exceptions to generally-applicable laws where no compelling government interest can be shown. The Court also rejected the argument that an exception for UDV was precluded by international treaty. The government failed to submit "evidence addressing the international consequences of granting an exemption for the UDV," instead citing "the general importance of honoring international obligations and of maintaining the leadership position of the United States in the international war on drugs." The Court held that such general government interests were not sufficient to satisfy the compelling interest standard. Opinion of the Court: Roberts, joined by Stevens, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer Alito took no part in the consideration or decision of the case. Concurring Opinion: N/A Dissenting Opinion: N/A

ZELMAN v. SIMMONS-HARRIS

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. Questions: Does Ohio's school voucher program violate the Establishment Clause? Conclusion: Decision: 5 votes for Zelman, 4 vote(s) against Legal provision: Establishment of Religion 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." Opinion of the Court: Rehnquist Concurring Opinion: O'Connor, Thomas Thomas argues that the state governments should be held to different standards than the federal government when it comes to deciding Establishment Clause cases. "...while the Federal Government may "make no law respecting an establishment of religion, "the States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest." Dissenting Opinion: Breyer, Souter, Stevens Souter was particularly vociferous in his denunciation of the fact that this decision effectively undermines the very point of prohibiting a religious establishment. First, the voucher program requires people to pay taxes which go to support religious beliefs antithetical to their own. The second is to "save religion from its own corruption." By accepting large amounts of public money, religious schools must also necessarily accept large amounts of public oversight. Participation in the program is dependent upon adopting many rules and regulations, in particular some prohibiting various forms of religious discrimination. Thus, for example, a religious school cannot prefer children of that school's faith over nonbelievers or members of any other faith. Government control and regulation will only broaden as the amounts of public financing increase.

SANTA FE INDEPENDENT SCHOOL DIST. v. DOE

Prior to 1995, a student elected as Santa Fe High School's student council chaplain delivered a prayer, described as overtly Christian, over the public address system before each home varsity football game. One Mormon and one Catholic family filed suit challenging this practice and others under the Establishment Clause of the First Amendment. The District Court enjoined the public Santa Fe Independent School District (the District) from implementing its policy as it stood. While the suit was pending, the District adopted a new policy, which permitted, but did not require, student-initiated and student- led prayer at all the home games and which authorized two student elections, the first to determine whether "invocations" should be delivered at games, and the second to select the spokesperson to deliver them. After the students authorized such prayers and selected a spokesperson, the District Court entered an order modifying the policy to permit only nonsectarian, nonproselytizing prayer. The Court of Appeals held that, even as modified by the District Court, the football prayer policy was invalid. The District petitioned for a writ of certiorari, claiming its policy did not violate the Establishment Clause because the football game messages were private student speech, not public speech. Question: Does the Santa Fe Independent School District's policy permitting student-led, student-initiated prayer at football games violate the Establishment Clause of the First Amendment? Conclusion: Decision: 6 votes for Doe, 3 vote(s) against Legal provision: Establishment of Religion Yes. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the District's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause. The Court concluded that the football game prayers were public speech authorized by a government policy and taking place on government property at government-sponsored school-related events and that the District's policy involved both perceived and actual government endorsement of the delivery of prayer at important school events. Such speech is not properly characterized as "private," wrote Justice Stevens for the majority. In dissent, Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, noted the "disturbing" tone of the Court's opinion that "bristle[d] with hostility to all things religious in public life." Opinion of the Court: Stevens Concurring Opinion: N/A Dissenting Opinion: Rehnquist, Scalia, Thomas A dissenting opinion was written by Chief Justice Rehnquist, joined by Justices Scalia and Thomas. His dissent asserted that the majority opinion "bristles with hostility to all things religious in public life". His material objections were, first that the policy on which the Court has now ruled had not yet put in to practice. "[T]he question is not whether the district's policy may be applied in violation of the Establishment Clause, but whether it inevitably will be." Second, Rehnquist also stated that the speech in question would be private, chosen and delivered by the speaker, rather than public, school-sponsored speech.

Originalism

Return to the origins of a federal statute to see if one can establish an intent and meaning on a revision. Main interest of this lies in finding out what the "Framers" of the Constitution had in mind, usually done by looking at their notes, and then determining the original meanings of things.

ROTH v. UNITED STATES

Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Roth's case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products. Question: Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment? Conclusion: Decision: 6 votes for United States, 3 vote(s) against Legal provision: 18 U.S.C. 1461 In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. Brennan later reversed his position on this issue in Miller v. California (1973). Opinion of the Court: Brennan Concurring Opinion: Warren I agree with the result reached by the Court in these cases, but, because we are operating in a field of expression and because broad language used here may eventually be applied to the arts and sciences and freedom of communication generally, I would limit our decision to the facts before us and to the validity of the statutes in question as applied. Dissenting Opinion: Douglas, Harlan In the Roth case, the trial judge charged the jury that the statutory words "obscene, lewd and lascivious" describe "that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts." He stated that the term "filthy" in the statute pertains "to that sort of treatment of sexual matters in such a vulgar and indecent way, so that it tends to arouse a feeling of disgust and revulsion." He went on to say that the material "must be calculated to corrupt and debauch the minds and morals" of "the average person in the community," not those of any particular class. You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards.

R.A.V. v. ST. PAUL

Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. The police charged one of the teens under a local bias- motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge. The state supreme court reversed. R.A.V. appealed to the U.S. Supreme Court. Question: Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment free speech clause? Conclusion: Decision: 9 votes for R.A.V., 0 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly Yes. In a 9-to-0 vote, the justices held the ordinance invalid on its face because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-semites are bastards but not that all Jews are bastards. Government has no authority "to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules." Opinion of the Court: Scalia Concurring Opinion: Blackmun, Stevens, White In the present case, the majority casts aside long established First Amendment doctrine without the benefit of briefing and adopts an untried theory. This is hardly a judicious way of proceeding, and the Court's reasoning in reaching its result is transparently wrong. Dissenting Opinion: N/A

The Philadelphia Convention

Spring 1787, initially was supposed to be a revising of the Articles of Confederation, but turned into the creation of a completely new document (the Constitution)

ABINGTON SCHOOL DISTRICT v. SCHEMP

The Abington case concerns Bible-reading in Pennsylvania public schools. At the beginning of the school day, students who attended public schools in the state of Pennsylvania were required to read at least ten verses from the Bible. After completing these readings, school authorities required all Abington Township students to recite the Lord's Prayer. Students could be excluded from these exercises by a written note from their parents to the school. In a related case -- Murray v. Curlett -- a Baltimore statute required Bible-reading or the recitation of the Lord's Prayer at open exercises in public schools. Murray and his mother, professed atheists -- challenged the prayer requirement. Question: Did the Pennsylvania law and Abington's policy, requiring public school students to participate in classroom religious exercises, violate the religious freedom of students as protected by the First and Fourteenth Amendments? Conclusion: Decision: 8 votes for Schempp, 1 vote(s) against Legal provision: Establishment of Religion The Court found such a violation. The required activities encroached on both the Free Exercise Clause and the Establishment Clause of the First Amendment since the readings and recitations were essentially religious ceremonies and were "intended by the State to be so." Furthermore, argued Justice Clark, the ability of a parent to excuse a child from these ceremonies by a written note was irrelevant since it did not prevent the school's actions from violating the Establishment Clause. Opinion of the Court: Clark Concurring Opinion: Brennan, Douglas, Goldberg Justice Brennan filed a lengthy and historically significant concurrence, taking seventy-three pages to elaborate his ideas about what the Framers intended in the formation of the First and Fourteenth Amendments, gauging the value of religion in our culture, reviewing legal precedents, and suggesting a course for future church-state cases. Brennan felt the need to focus on the history of the Establishment Clause to counter numerous critics of the Court's Engel decision, who pointed out that prayer in public schools, as well as in many other areas of public life, was a longstanding practice going back to the framing of the Constitution and Bill of Rights. He professed to be aware of the "ambiguities in the historical record", and felt a modern-day interpretation of the First Amendment was warranted . In defense of that approach, Brennan stated: Whatever Jefferson or Madison would have thought of Bible reading or the recital of the Lord's Prayer in ... public schools ..., our use of the history ... must limit itself to broad purposes, not specific practices. ... [T]he Baltimore and Abington schools offend the First Amendment because they sufficiently threaten in our day those substantive evils the fear of which called forth the Establishment Clause. ... [O]ur interpretation of the First Amendment must necessarily be responsive to the much more highly charged nature of religious questions in contemporary society. A too literal quest for the advice of the Founding Fathers upon the issues of these cases seems to me futile and misdirected. Dissenting Opinion: Stewart Stewart had dissented in Engel v. Vitale and viewed the doctrine relied on in that case as implausible, given the long history of government religious practice in the United States, including the fact that the Supreme Court opens its own sessions with the declaration, "God Save this Honorable Court" and that Congress opens its sessions with prayers, among many other examples. Stewart believed that such practice fit with the nation's long history of permitting free exercise of religious practices, even in the public sphere.

BROWN v. LOUISIANA

The Audubon Regional library operated three branches and two bookmobiles. Blacks were not allowed to enter any of the branch libraries. The bookmobiles were segregated: a red one served only whites and a blue one served blacks. Brown was a black man who entered a library branch with four other blacks and requested a book, The Story of the Negro. The librarian informed Brown that the book was not available, but that she would request it through the state library, and he could pick it up or have it mailed to him. After the conversation, the men sat down (making no noise or disturbance) and refused to leave. They were arrested "for not leaving a public building when asked to do so by an officer." Question: Did the actions of the arresting officer infringe upon Brown's (and his companions') freedom of speech, assembly, and freedom to petition the Government for redress of grievances as protected by the First and Fourteenth Amendments? Conclusion: Decision: 5 votes for Brown, 4 vote(s) against Legal provision: Due Process The divided Court found that the actions of the police violated the Constitution. Justice Fortas argued that states may only regulate the use of public facilities in a "reasonably nondiscriminatory manner, equally applicable to all." Maintaining separate library facilities clearly violated this principle. Fortas also reasoned that the demonstration did not disturb the peace of other library patrons or disrupt the library's activities; the time and method of the sit-in were carefully chosen and executed. Justice Black dissented, joined by three other justices. He argued that the First Amendment "does not guarantee to any person the right to use someone else's property, even that owned by government and dedicated to other purposes, as a stage to express dissident ideas." Opinion of the Court: Fortas Concurring Opinion: Brennan, White Dissenting Opinion: Black, joined by Clark, Harlan, Stewart Justice Black, in his dissent, finds nothing preventing Louisiana from banning sit-in demonstrations, and criticizes the majority opinion for acting as if Louisiana had intended to deny access to the libraries based upon race. Black also noted that when Brown asked for a book, he was served, showing that he was not denied access or service, and discussed that there was no racial discrimination on the part of the library,

BOY SCOUTS OF AMERICA v. DALE

The Boy Scouts of America revoked former Eagle Scout and assistant scoutmaster James Dale's adult membership when the organization discovered that Dale was a homosexual and a gay rights activist. In 1992, Dale filed suit against the Boy Scouts, alleging that the Boy Scouts had violated the New Jersey statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. The Boy Scouts, a private, not-for-profit organization, asserted that homosexual conduct was inconsistent with the values it was attempting to instill in young people. The New Jersey Superior Court held that New Jersey's public accommodations law was inapplicable because the Boy Scouts was not a place of public accommodation. The court also concluded that the Boy Scouts' First Amendment freedom of expressive association prevented the government from forcing the Boy Scouts to accept Dale as an adult leader. The court's Appellate Division held that New Jersey's public accommodations law applied to the Boy Scouts because of its broad-based membership solicitation and its connections with various public entities, and that the Boy Scouts violated it by revoking Dale's membership based on his homosexuality. The court rejected the Boy Scouts' federal constitutional claims. The New Jersey Supreme Court affirmed. The court held that application of New Jersey's public accommodations law did not violate the Boy Scouts' First Amendment right of expressive association because Dale's inclusion would not significantly affect members' abilities to carry out their purpose. Furthermore, the court concluded that reinstating Dale did not compel the Boy Scouts to express any message. Question: Does the application of New Jersey's public accommodations law violate the Boy Scouts' First Amendment right of expressive association to bar homosexuals from serving as troop leaders? Conclusion: Decision: 5 votes for Boy Scouts of America, 4 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly Yes. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that "applying New Jersey's public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts' First Amendment right of expressive association." In effect, the ruling gives the Boy Scouts of America a constitutional right to bar homosexuals from serving as troop leaders. Chief Justice Rehnquist wrote for the Court that, "[t]he Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill," and that a gay troop leader's presence "would, at the very least, force the organization to send a message, both to the young members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior." Opinion of the Court: Rehnquist Concurring Opinion: N/A Dissenting Opinion: Stevens, joined by Souter, Ginsburg, Breyer Justice Stevens dissented from the Court's decision in an opinion that Justices Souter, Ginsburg, and Breyer joined. He first observed that "every state law prohibiting discrimination is designed to replace prejudice with principle." Justice Brandeis had observed in New State Ice Company v. Liebman that it "is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." In Stevens' opinion, the Court's decision interfered with New Jersey's experiment.

RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS (FAIR

The Solomon Amendment, 10 U.S.C. 983(b)(1), withholds some federal funding from colleges and universities that deny U.S. military recruiters the same access to students that other employers are given. The Forum for Academic and Institutional Rights challenged the law, arguing that it violated the schools' First Amendment rights to expressive association by requiring them to assist in military recruitment. The district court rejected the suit, but a Third Court of Appeals panel reversed. It held that, while the schools still had the right to forfeit funds so as to avoid unwanted endorsement of military policy under the amendment, forcing the schools to make such a decision was unconstitutional. Congress could not require them to forfeit a constitutional right in order to receive federal funds. Question: Does the Solomon Amendment, which witholds certain federal funds from colleges and universities that restrict the access of military recruiters to students, violate the First Amendment? Conclusion: Decision: 8 votes for Rumsfeld, 0 vote(s) against Legal provision: 10 U.S.C. 983 No. The Supreme Court, in a unanimous opinion written by Chief Justice John Roberts, held that the Solomon Amendment regulated conduct, not speech, and was therefore constitutional. Including military recruiters in receptions and interviews does not necessarily indicate university endorsement of the recruiters, so requiring their inclusion does not constitute compelled speech in violation of the First Amendment. This would be true even if Congress had decided to make the requirement direct, rather than making it indirect as a condition for receiving federal funds. Roberts wrote, "Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds." Opinion of the Court: Roberts Concurring Opinion: N/A Dissenting Opinion: N/A Not participating: Alito

HAZELWOOD SCHOOL DISTRICT v. KUHLMEIE

The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, received the pages proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court. Question: Did the principal's deletion of the articles violate the students' rights under the First Amendment? Conclusion: Decision: 5 votes for Hazelwood School District, 3 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly No. In a 5-to-3 decision, the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. The Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns." The actions of principal Reynolds, the Court held, met this test. Opinion of the Court: White Concurring Opinion: N/A Dissenting Opinion: Brennan When the young men and women of Hazelwood East High School registered for Journalism II, they expected a civics lesson. Spectrum, the newspaper they were to publish, "was not just a class exercise in which students learned to prepare papers and hone writing skills, it was a . . . forum established to give students an opportunity to express their views while gaining an appreciation of their rights and responsibilities under the First Amendment to the United States Constitution . . . ." "[A]t the beginning of each school year," the student journalists published a Statement of Policy -- tacitly approved each year by school authorities -- announcing their expectation that "Spectrum, as a student-press publication, accepts all rights implied by the First Amendment . . . . Only speech that 'materially and substantially interferes with the requirements of appropriate discipline' can be found unacceptable and therefore prohibited." The school board itself affirmatively guaranteed the students of Journalism II an atmosphere conducive to fostering such an appreciation and exercising the full panoply of rights associated with a free student press. "School sponsored student publications," it vowed, "will not restrict free expression or diverse viewpoints within the rules of responsible journalism."

SNYDER v. PHELPS

The family of deceased Marine Lance Cpl. Matthew Snyder filed a lawsuit against members of the Westboro Baptist Church who picketed at his funeral. The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress for displaying signs that said, "Thank God for dead soldiers" and "Fag troops" at Snyder's funeral. U.S. District Judge Richard Bennett awarded the family $5 million in damages, but the U.S. Court of Appeals for the Fourth Circuit held that the judgment violated the First Amendment's protections on religious expression. The church members' speech is protected, "notwithstanding the distasteful and repugnant nature of the words." Read the Briefs for this Case Question: Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased? Conclusion: Decision: 8 votes for Phelps, 1 vote(s) against Legal provision: First Amendment Yes. The Supreme Court affirmed the lower court's decision in an opinion by Chief Justice John G. Roberts, Jr. The Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability. Justice Stephen J. Breyer filed a concurring opinion in which he wrote that while he agreed with the majority's conclusion in the case, "I do not believe that our First Amendment analysis can stop at that point." Justice Samuel Alito filed a lone dissent, in which he argued: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case." Opinion of the Court: Roberts Concurring Opinion: Breyer Justice Stephen Breyer wrote a concurring opinion, emphasizing his view that the decision related only to picketing, and did not take Westboro Baptist Church's on-line publications that attacked the Snyder family into consideration. Dissenting Opinion: Alito Justice Samuel Alito, as in the Stevens case, was the lone dissenting justice in this case, beginning his dissent with, "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case". He concluded, "In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner".

LEMON v. KURTZMAN

This case was heard concurrently with two others, Earley v. DiCenso (1971) and Robinson v. DiCenso (1971). The cases involved controversies over laws in Pennsylvania and Rhode Island. In Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools. The Rhode Island statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each statute made aid available to "church-related educational institutions." Question: Did the Rhode Island and Pennsylvania statutes violate the First Amendment's Establishment Clause by making state financial aid available to "church- related educational institutions"? Conclusion: Decision: 8 votes for Lemon, 0 vote(s) against Legal provision: Establishment of Religion Yes. Writing for the majority, Chief Justice Burger articulated a three-part test for laws dealing with religious establishment. To be constitutional, a statute must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion." The Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the "continuing state surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. The Court also noted the presence of an unhealthy "divisive political potential" concerning legislation which appropriates support to religious schools. Lemon v. Kurtzman Opinion of the Court: Burger Concurring Opinion: Brennan, White Dissenting Opinion: Marshall Earley v. DiCenso Opinion of the Court: Burger Concurring Opinion: Douglas Dissenting Opinion: White Lemon test The Court's decision in this case established the "Lemon test", which details the requirements for legislation concerning religion. It consists of three prongs: 1. The government's action must have a secular legislative purpose; 2. The government's action must not have the primary effect of either advancing or inhibiting religion; 3. The government's action must not result in an "excessive government entanglement" with religion. If any of these 3 prongs are violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution. The act stipulated that "eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion." Still, a three-judge panel found 25% of the State's elementary students attended nonpublic schools, about 95% of those attended Roman Catholic schools, and the sole beneficiaries under the act were 250 teachers at Roman Catholic schools. The court found that the parochial school system was "an integral part of the religious mission of the Catholic Church," and held that the Act fostered "excessive entanglement" between government and religion, thus violating the Establishment Clause. Held: Both statutes are unconstitutional under the Religion Clauses of the First Amendment, as the cumulative impact of the entire relationship arising under the statutes involves excessive entanglement between government and religion.

GOOD NEWS CLUB v. MILFORD CENTRAL SCHOOL

Under New York law, Milford Central School policy authorizes district residents to use its building after school for certain activities. Stephen and Darleen Fournier were district residents eligible to use the school's facilities. They sought approval of their proposed use and sponsorship of the Good News Club, a private Christian organization for children. The Fourniers submitted a request to hold the Club's weekly afterschool meetings at the school. Milford denied the request reasoning that the proposed use, including singing songs, hearing Bible lessons, memorizing scripture, and praying, was the equivalent of religious worship prohibited by the community use policy. The Club filed suit alleging that the denial violated its free speech rights under the First and Fourteenth Amendments. Ultimately, the District Court granted Milford summary judgment. In affirming, the Court of Appeals held that because the subject matter of the Club's was "quintessentially religious", and the activities "fall outside the bounds of pure 'moral and character development,'" Milford's policy of excluding the Club's meetings was constitutional subject discrimination, not unconstitutional viewpoint discrimination. Question: Did Milford Central School violate the First Amendment free speech rights of the Good News Club when it excluded the Club from meeting after hours at the school? If a violation occurred, was it justified by Milford's concern that permitting the Club's activities would violate the Establishment Clause? Conclusion: Decision: 6 votes for Good News Club, 3 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly Yes and no. In a 6-3 opinion delivered by Justice Clarence Thomas, the Court held that "Milford's restriction violates the Club's free speech rights and that no Establishment Clause concern justifies that violation." "When Milford denied the Good News Club access to the school's limited public forum on the ground that the Club was religious in nature, it discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause of the First Amendment," wrote Justice Thomas. Opinion of the Court: Thomas, joined by Rehnquist, O'Connor, Scalia, Kennedy; Breyer (in part) Concurring Opinion: Scalia, Breyer (in part) Justice Scalia concurred in the Court's opinion, but wrote separately to express his own views. He did not believe that the Club's activities were coercive at all. "As to endorsement, I have previously written that religious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms. The same is true of private speech that occurs in a limited public forum, publicly announced, whose boundaries are not drawn in favor of religious groups but instead permit a cross-section of uses." Milford could not justify excluding the Club simply because its speech was religious in nature, and so Scalia did not worry whether the discrimination was content-based or viewpoint-based. In any event, Scalia stressed that Milford was engaging in viewpoint discrimination. Dissenting Opinion: Stevens, Souter, joined by Ginsburg It is beyond question that Good News intends to use the public school premises not for the mere discussion of a subject from a particular, Christian point of view, but for an evangelical service of worship calling children to commit themselves in an act of Christian conversion. The majority avoids this reality only by resorting to the bland and general characterization of Good News's activity as 'teaching of morals and character, from a religious standpoint'. If the majority's statement ignores reality, as it surely does, then today's holding may be understood only in equally generic terms. Otherwise, indeed, this case would stand for the remarkable proposition that any public school opened for civic meetings must be opened for use as a church, synagogue, or mosque.

AGOSTINI v. FELTON

This suit was brought by a New York parochial school board, and some of its student's parents, as a challenge to a District Court ruling upholding the twelve-year-old decision set out in Aguilar v. Felton (473 US 402). The decision in Aguilar prohibited public school teachers from teaching in parochial schools as a violation of the Establishment Clause. On appeal from the Second Circuit's affirmance of a District Court's denial of the parent's challenge, the Supreme Court granted certiorari. Question: Is the Establishment Clause violated when public school teachers instruct in parochial schools? Conclusion: Decision: 5 votes for Agostini, 4 vote(s) against Legal provision: Establishment of Religion No. The Court overruled its decision in Aguilar v. Felton. The Court held that there was no evidence to support its former presumption that the entrance of public school teachers into parochial schools will inevitably lead to the indoctrination of state-sponsored religion. The New York program under which public school teachers were sent into parochial schools did not provide parochial schools with any incentive, financial or other, to establish religion in order to attract public school teachers. The Court added that under its new view, only those policies which generate an excessive conflict between church and state will be deemed to violate the Establishment Clause. As such, one should no longer find that all entanglements between church and state have a distinctly positive or negative impact on religion. Opinion of the Court: O'Connor Concurring Opinion: N/A Dissenting Opinion: Ginsburg, Souter Justice Souter authored the dissent, which Justices Stevens, Breyer, Ginsburg and joined. The Dissent was somewhat formalistic in its objections to the majority finding. It stated that the principle of stare decisis was of too great weight to overrule a previous decision so easily, and that the case presented appeared to be more of a re-hearing of Aguilar than a new proceeding. The Dissent cited the Supreme Court's guidelines surrounding rehearings, accusing the Court of veiling its decision as a "rethinking" instead of a reversal of Aguilar. The Dissent summarized its own position, remarking: "That cause lies in the maintenance of integrity in the interpretation of procedural rules, preservation of the responsive, non agenda setting character of this Court, and avoidance of invitations to reconsider old cases based on "speculat[ions] on chances from changes in [the Court's membership]." In short, the Dissent felt that the ruling in this case was contrary to the integrity and stability of the Court, and did not comport with the apolitical nature of the judiciary.

VAN ORDEN v. PERRY

Thomas Van Orden sued Texas in federal district court, arguing a Ten Commandments monument on the grounds of the state capitol building represented an unconstitutional government endorsement of religion. Orden argued this violated the First Amendment's establishment clause, which prohibits the government from passing laws "respecting an establishment of religion." The district court and the Fifth Circuit Court of Appeals ruled against Orden and said the monument served a valid secular purpose and would not appear to a reasonable observer to represent a government endorsement of religion. Question: Does a Ten Commandments monument on the grounds of a state capitol building violate the First Amendment's establishment clause, which barred the government from passing laws "respecting an establishment of religion?" Conclusion: Decision: 5 votes for Perry, 4 vote(s) against Legal provision: Establishment of Religion No. In 5-4 decision, and in a four-justice opinion delivered by Chief Justice William H. Rehnquist, the Court held that the establishment clause did not bar the monument on the grounds of Texas' state capitol building. The plurality deemed the Texas monument part of the nation's tradition of recognizing the Ten Commandments' historical meaning. Though the Commandments are religious, the plurality argued, "simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause." Opinion of the Court: Rehnquist Concurring Opinion: Scalia, Thomas Opinion Concurring in Judgment: Breyer The case before us is a borderline case. It concerns a large granite monument bearing the text of the Ten Commandments located on the grounds of the Texas State Capitol. On the one hand, the Commandments' text undeniably has a religious message, invoking, indeed emphasizing, the Deity. On the other hand, focusing on the text of the Commandments alone cannot conclusively resolve this case. Rather, to determine the message that the text here conveys, we must examine how the text is used. And that inquiry requires us to consider the context of the display. Dissenting Opinion: O'Connor, Souter, Stevens Stevens' dissenting opinion essentially stated that, in formulating a ruling for this case, the court had to consider whether the display had any significant relation to the specific and secular history of the state of Texas or the United States as a whole. Ultimately, Stevens asserted that the display "has no purported connection to God's role in the formation of Texas or the founding of our Nation [. . .] " and therefore could not be protected on the basis that it was a display dealing with secular ideals. In fact, Stevens says that the display transmits the message that Texas specifically endorses the Judeo-Christian values of the display and thus, the display violates the establishment clause.

Fundamental Rights (Palko v. Connecticut)

Those rights which, without liberty and justice, could not exist. Rights that were implicit in the concept of ordered liberty. After Palko v. Connecticut, these rights were decided upon by the Supreme Court on a case-by-case basis using "selective incorporation".

EMPLOYMENT DIVISION v. SMITH

Two Native Americans who worked as counselors for a private drug rehabilitation organization, ingested peyote -- a powerful hallucinogen -- as part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the counselors. The counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related "misconduct." The counselors lost their battle in state court. But the U.S. Supreme Court vacated the Oregon Supreme Court's judgment against the disgruntled employees, and returned the case to the Oregon courts to determine whether or not sacramental use of illegal drugs violated Oregon's state drug laws (485 U.S. 660 (1988)). On remand, the Oregon Supreme Court concluded that while Oregon drug law prohibited the consumption of illegal drugs for sacramental religious uses, this prohibition violated the free exercise clause. The case returned to the U.S. Supreme Court in this new posture. Question: Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes? Conclusion: Decision: 6 votes for Employment Division, 3 vote(s) against Legal provision: Free Exercise of Religion Yes. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws. Opinion of the Court: Scalia Concurring Opinion: O'Connor Justice O'Connor took issue with the analytical framework the majority had constructed, preferring to apply the traditional compelling interest test to Oregon's ban on peyote. She agreed with the Court's initial premise that the Free Exercise Clause applied to religiously motivated conduct as well as religious beliefs. She pointed out, however, that even a so-called neutral law of general applicability imposes a burden on a person's exercise of religion if that law prevents a person from engaging in religiously motivated conduct or requires a person to engage in conduct forbidden by his or her religion. The First Amendment has to reach both laws that expressly target religion as well as generally applicable laws; otherwise, the law would relegate the constitutional protection of the free exercise of religion to "the barest level of minimum scrutiny that the Equal Protection Clause already provides." Dissenting Opinion: Blackmun Justice Blackmun agreed with Justice O'Connor that the compelling interest test should apply to Oregon's ban on peyote, but disagreed with her that the ban was supported by a compelling interest that was narrowly tailored. Blackmun began by "articulat[ing] in precise terms the state interest involved" in the ban. Blackmun focused narrowly on the state's interest in not exempting religious use from its otherwise generally applicable ban on peyote rather than the state's broader interest in "fighting the critical 'war on drugs.'" Blackmun framed the issue as he did because "failure to reduce the competing interests to the same plane of generality tends to distort the weighing process in the state's favor." Blackmun questioned whether Oregon actually did enforce its criminal prohibition on peyote against religious users, noting that it had not actually prosecuted Smith or Black. Because Oregon had not prosecuted any religious users of peyote, its "asserted interest thus amounts only to the symbolic preservation of an unfettered prohibition. But a government interest in symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot suffice to abrogate the constitutional rights of individuals."

Religious Expressions (cases)

Wisconsin v. Yoder; Employment Division, Department of Human Resources of Oregon v. Smith; Good News Club v. Millford Central School; GONZALES v. O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL

Inalienable Rights

Written by Thomas Jefferson with the idea that these rights came from within, having their basis in 3 things: nature, religion and government. But, because the government did not create natural or religious rights, legal rights were estblished in their place.