Chapter 14 (Civil Liberties)

1. Chapter 14 (Civil Liberties) “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Declaration of Independence

2. I. Power and Individual Liberty • Governments are necessary to protect the liberties of the weak from the will of the strong. However, governments may become so strong that gov’t itself may infringe upon individual liberty. • Democracies do not protect liberties by themselves. Certain rules must be included so that some liberties are never subject to majority preference (i.e. Paradox of Democracy). These liberties are “enumerated” (or listed out) in the Constitution’s Bill of Rights (the first 10 amendments to the Constitution). • Incorporation – The Bill of Rights originally applied only to Congress (typical language is that “Congress shall make no law…” infringing upon certain rights). However, since the passage of the 14th amendment after the Civil War, federal courts have applied (incorporated) many of the bill of rights to the states as well. Here, we’ll look at only a few of these liberties.

3. II. Freedom of/from Religion – First amendment says Congress can not prohibit “free exercise” of religion or make a law “respecting an establishment of religion.” *Americans are more religious than any other advanced industrialized nation (as measured by beliefs and church attendance). *67% of Americans belong to churches, synagogues, or other religious assemblies. *30% attend religious services in a normal week A. Free Exercise of Religion – this is not an absolute freedom (few freedoms are). Conduct, even when it is considered religious, can be regulated (e.g. 1879 and Mormon polygamy). Belief is absolutely protected, but not practice (Santeria case). B. No Establishment of Religion – Does it mean a “wall of separation” (Jefferson letter to Danbury Baptists) or simply no official establishment of a particular religion/church (8 of 13 states had established churches; whatever states do, fed gov’t can not)?

4. C. What Constitutes Establishment? 3 general views found in Supreme Court decisions in the last half century… • Strict-Separation or No-Aid Doctrine – Government and religion (not just church and state) should remain totally independent (Jefferson). The government must not do anything that helps religion; government and the public must be a “secular” place, thinking in secular categories, sponsoring secular activities, etc.. The Court adopted a legal test to decide if a law violated the establishment clause. They asked, does the law… Lemon Test: • …have a secular purpose (if no, the unconstitutional) • …advance or inhibit religion (if yes, then unconstitutional). • …foster an excessive government entanglement with religion (if yes, the unconstitutional) *The Lemon test has only sporadically been applied, but has never been explicitly repealed. Some criticize it for the following reasons: what is a secular purpose (plain text or motive; if motive, why must it be secular? How can government make sure it’s activities do not advance religion without getting itself entangled with it?

5. 2. Accommodation Doctrine – Government may extend benefits to religion in a nondiscriminatory fashion and support or acknowledge a Judeo-Christian heritage where religion is respected and accommodated in public life. Religion is seen as a public good and can/should be promoted by the state so long as it does not discriminate between religions or denominations. 3. Equal Treatment Doctrine – this argument suggests that if a government enterprise favors or supports nonreligious entities, then government is guilty of “prohibiting the free exercise” of religion by placing religion at a disadvantage (e.g. University of Virginia and funding student-organization publications). *“The neutrality or equal treatment principle says the University of Virginia could decide to fund no student publications, but once it had decided to fund them, it could no more decide to fund all secular publications and exclude religious publications than it could fund all religious publications and exclude secular ones.” – Stephen V. Monsma

6. Whatever the best position is, Witte makes a fair observation regarding establishment… John Witte: “If James Madison (primary architect of our constitution) was a strict separationist, it was much easier for him to be in early 19th century; states were free to regulate religion and the government was small. Not so today [incorporation and a huge government involved in all spheres of society]. Some degree of cooperation is inevitable.” If the public space is to be continually purged of religion, then the expansion of government (public space) will require drastic measures to push religion to a smaller and smaller insignificant part of private life.