CIVIL LIBERTIES AND CIVIL RIGHTS

1. CIVIL LIBERTIES AND CIVIL RIGHTS

2. First Amendment • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” • (1) Establishment clause • (2) Free exercise clause • Government (national or state) may not adopt or endorse an official religion, but individuals have the right to practice their own beliefs.

3. Bill of Rights • The meaning of the Constitution has been interpreted by the courts throughout our history (judicial review)

4. First Amendment • Establishment of religion • Free exercise of religion • Freedom of speech • Freedom of the press • Right to assembly • Right to petition the government for redress of grievances

5. Controversies • There is a thin line between “establishment” and “free exercise,” and different people/groups draw the line in different places • Throughout our history, the courts have been called on to interpret the Constitution and resolve these disputes • Government may neither require nor prohibit religious worship

6. Controversies • “No preference” doctrine vs. “Wall of Separation” doctrine • Does the Establishment Clause simply require that government show no preference among religions, or does it require “separation of church and state”? • “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.” – Thomas Jefferson, 1802

7. Cases • Barnette v. West Virginia (1943): West Virginia state law required public school students to salute the flag and say the Pledge of Allegiance. • Jehovah’s Witnesses objected on the grounds that this violates the Biblical prohibition on worshipping graven images. • U.S. Supreme Court agreed that their rights to free exercise of religion and free speech were violated by this requirement. • The Pledge may be recited in public schools, but students may not be required to participate (this was even before the words “under God” were added).

8. Cases • Engel v. Vitale (1962): New York State required public school students to say the following prayer in class at the beginning of each school day: • “Almighty God, we acknowledge our dependence on Thee, and we beg Thy blessing on us, our parents, our teachers and our country.” • The Supreme Court held that this is a violation of the Establishment Clause. Public school students may not be required to participate in a religious exercise. This case ended organized, required prayer in public schools.

9. Cases • Lemon v. Kurtzman (1971): Pennsylvania provided state support for teacher salaries, textbooks and instructional materials in secular subjects at Catholic parochial schools. • The Supreme Court found that this violated the Establishment Clause and established a “three-pronged” test for determining whether a government practice is constitutional under this Clause:

10. Lemon v. Kurtzman (1971) • A statute must have a primarily secular [non-religious] purpose • It must neither advance nor inhibit religion • It must not foster “excessive government entanglement with religion.” • The Court held that Pennsylvania providing this type of subsidy to parochial schools failed this test and violated the Establishment Clause.

11. Cases • Wisconsin v. Yoder (1972): Amish children were excused from school attendance above the eighth grade, which was contrary to their family’s religious practices • The Supreme Court held that the families’ right to free exercise of religion was violated by the state law requiring mandatory school attendance

12. Cases • Lee v. Weisman (1992): The Supreme Court held that a prayer delivered by a clergyman at a public school graduation ceremony is a violation of the Establishment Clause. • Santa Fe [Texas] Independent School District vs. Doe (2000): The Supreme Court held that a prayer led by a student before a public high school football game violated the Establishment Clause.

13. Cases • Adler v. Duval County [Florida] School Board (2011): The Supreme Court declined to strike down a lower court’s decision permitting student-led prayer at graduation. • Lower courts have disagreed on whether student-led prayer is constitutional and the Supreme Court has not chosen to definitively resolve the issue.

14. Cases • Herdahl v. Pontotoc County [Mississippi] Board of Education (1996): Bible reading over a public school’s PA system was held to violate the Establishment Clause. • Even though participating in the exercise (reading the prayer over the PA) was voluntary, listening to it was not (students were required to be at school).

15. What’s the difference? • A prayer led by an official (teacher, principal, adult clergy member) constitutes a government endorsement of the religious message and is therefore a violation of the Establishment Clause. • A prayer at a required activity is a violation of the Establishment Clause. • A voluntary, student-led prayer at a voluntary activity is permissible under the Free Exercise Clause.

16. Equal Access Act of 1984 • Federal law stating that schools receiving federal funds (which is virtually all public schools) must allow religious groups to meet on the same basis as other clubs, if the school allows clubs at all; this has been upheld, not a violation of the Establishment Clause • Voluntary participation, on school grounds, before or after the school day (when attendance is not required) • “See You at the Pole” is voluntary and before school

17. Religious Activity in Public Schools • The Bible may be taught as history, literature, or comparative religion • Public school students may be excused for part of the school day to receive religious instruction off-campus. • Students may engage in individual religious practices (such as prayer, handing out Bibles of pamphlets at school) as long as it’s not disruptive. • “As long as there are final exams, there will be prayer in schools.” Anonymous

18. Evolution and Creationism • May public schools teach a Biblical theory of creation in addition to a scientific theory of evolution? • Teaching “intelligent design” in science classes in Dover, PA, was struck down by the courts in 2005 • State laws prohibiting the teaching of evolution have repeatedly been struck down • Several states have passed laws allowing for the teaching of a Biblically-based theory of creationism as a theory of human origin, but the Supreme Court has ruled that this can’t be required

19. Religion and Public Schools • A New Jersey law providing school bus transportation to parochial schools on an equal basis with public school was upheld (the primary purpose was transportation, not religious instruction) • Ohio had an experimental school voucher program, using public funds to pay part of tuition at private schools; students who wished to use the vouchers at religious schools could do so. This is not a violation of the Establishment Clause.

20. Religious Symbols on Public Property • Whether the Ten Commandments may be posted in public buildings (schools, courthouses, etc.) depends on the historical context: is it there primarily as a religious document or as part of a larger historical display? • Lynch v. Donnelly (1984): A creche on city property as part of a broader “winter holiday” display did not violate the Establishment Clause as a government endorsement of religion. Display of religious symbols on public property depends on context.

21. Government Officials and the Establishment Clause • Roy Moore, Chief Justice of Alabama, was removed from office in 2003 for violating a court order to remove the Ten Commandments from the state Supreme Court building. He refused to do so as a matter of religious principle. • Did he violate the Establishment Clause in his capacity as a public official, or were his individual rights under the Free Exercise clause violated? • He was acting with the authority of government and therefore the Establishment Clause outweighed his individual rights as a private citizen under the Free Exercise Clause

22. Government Officials and the Establishment Clause • President Kennedy said he’d resign from office if he ever felt a conflict between his oath of office (to uphold the Constitution) and his religious beliefs • In response to concerns from Protestant ministers about the election of a Catholic President

23. Establishment Clause • “In God We Trust” was adopted as the national motto in 1956, added to US money and posted in public places • This has been held not to violate the Establishment Clause • The US House and US Senate open their daily meetings with prayer and have Christian clergy on the public payroll as chaplains • Also not a violation of the Establishment Clause

24. Limitations on Free Exercise of Religion • Your practice of religion may not violate the public health and safety • Snake handling in religious services has been outlawed. This is not a violation of the Free Exercise Clause. • Animal sacrifice in a religious ceremony is protected by the Free Exercise Clause. • Narrow exception to drug laws for use by Native Americans in religious ceremonies. • Employment Division v. Smith (1990): An Oregon substance abuse counselor was fired for using peyote as part of a Native American religious ritual. He had agreed not to use illegal drugs as a condition of employment. The firing did not violate his free exercise rights.

25. Limitations on Free Exercise of Religion • Locke v. Davey (2004): Joshua Davey had a state-funded college scholarship. He was prohibited by state law from using the scholarship to pursue a degree in theology, on the grounds that this violated the Establishment Clause (state support of a specific religion). The Supreme Court upheld the law: his free exercise rights were not violated by the restriction on his scholarship – it was permissible for the state to restrict what he studied with public funding.