In the United States: • The political culture is centered around rights • “I have my rights!”
Natural rights, Unalienable rights • Bill of Rights • States’ Rights • Sovereignty rights • Gun rights • Voting Rights • Civil Rights • Women’s Rights • Privacy Rights • Right against self-incrimination • Right to a lawyer • Right to remain silent • Right against illegal searches and seizures
1. American Revolution was essentially over liberty—asserting rights 2. Animating spirit of the Constitution was the effort to reconcile personal liberty with social control 3. Concern with assertion and maintenance of rights has resulted in an adversarial culture 4. Long-standing distrust of authority reflects belief that human nature is depraved (original sin) 5. In that context, we can talk about civil liberties
CIVIL LIBERTIES • Civil liberties are the personal rights and freedoms that the federal government cannot abridge, either by law, constitution, or judicial interpretation. • These are limitations on the power of government to restrain or dictate how individuals act.
Civil Liberties vs. Civil Rights • What’s the difference? • civil liberties adhere to individuals rather than groups • negative vs. positive freedom • civil liberties are about what government must not do; civil rights are largely about what government must do
U.S. Constitution - what the government can do. Bill of Rights - What the government cannot do.
The Bill of Rights • The Bill of Rights consists of the first ten amendments to the Constitution and includes specific guarantees such as free speech, free press, and religion. • The proposed Bill of Rights was sent to the states for ratification and was approved in 1791.
Amendment I Freedom of religion, speech, press, and assembly
Amendment II The right to bear arms
Amendment III Prohibition against quartering of troops in private homes
Amendment IV Prohibition against unreasonable searches and seizures
Amendment V Rights guaranteed to the accused: requirement for grand jury indictment; protections against double jeopardy, self-incrimination; guarantee of due process
Amendment VI Right to a speedy and public trial before an impartial jury, to cross-examine witnesses, and to have counsel
Amendment VII Right to a trial by jury in civil suits
Amendment VIII Prohibition against excessive bail and fines, and cruel and unusual punishment
Amendment IX Rights not listed in Constitution are retained by the people
Amendment X States retain those powers not denied to them by the Constitution or delegated to the national government
The Incorporation Doctrine • The Bill of Rights was designed to limit the powers of the national government. • In 1868, the Fourteenth Amendment was added to the Constitution and its language suggested that the protections of the Bill of Rights might also be extended to prevent state infringement of those rights. • The amendment begins: "No state shall....deprive any person, of life, liberty, or property without due process of law." • The Supreme Court did not interpret the 14th Amendment that way until 1925 in Gitlow v. New York.
The Incorporation Doctrine • In 1925, the Court ruled in Gitlow v. New York that states could not abridge free speech due to the 14th Amendment's Due Process Clause. • This was the first step in the development of the incorporation doctrine whereby the Court extended Bill of Rights protections to restrict state actions. • Not all of the Bill of Rights has been incorporated. For example the 3rd amendment has not been incorporated.
First 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.
First Amendment: Freedom of Religion • The First Amendment states that: “Congress shall make no law • respecting an establishment of religion, • or prohibiting the free exercise thereof;…” In this section we will look at each of these clauses of the First Amendment, the controversy and power struggles surrounding them and the way the Courts have interpreted and applied them.
An Established Religion means that the Government will create and support an official state church…with state religions, often: • tax dollars support that chosen church. • that church’s laws become the law of the land. • the Nation’s leader usually appoints the leading clerics. • other religions are excluded.
Drafting the First Amendment • They asked, “Should we establish a religion or not?” • Thomas Jefferson wrote that there should be “a wall of separation between church and state.”
Arguments for Religious Freedom • From the Holy Roman Empire to the Church of England history indicates that when church and state are linked, all individual freedoms are in jeopardy. • If government is merely an arm of God what power of government is not justified? • What could happen to religious minorities if government and religion were linked?
Arguments for Religious Freedom • Many of the founding fathers believed that the spiritual purity and sanctity of religion would be ruined if it mixed with the worldly realm of politics. If religion becomes part of the government, in Madison’s words, it results in “pride and indolence in the clergy; ignorance and servility in the laity; in both superstition, bigotry and persecution.”
The Establishment Clause • The Establishment Clause of the First Amendment guarantees that the government will not create and or support an official state religion.
Separationists vs. Accomodationists How high should the wall between church and state be? Separationists argue that a high “wall” should exist between the church and state. Accomodationists contend that the state should not be separate from religion but rather should accommodate it, without showing preference.
The Supreme Court and the Establishment Clause • The Supreme Court has held fast to the rule of strict separation between church and state when issues of prayer in public school are involved. • In the early 1960s, the Court ruled that officially-led prayer and bible reading is unconstitutional. • In Engel v. Vitale, (1962),the Court ruled that even nondenominational prayer could not be required of public school children.
ENGEL V. VITALE Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers and our Country.
ENGEL V. VITALE “We think that by using its public school system to encourage recitation of the Regents' prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessing of the Almighty.”
ENGEL V. VITALE “…in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.”
Engel became the basis for several subsequent decisions limiting government-directed prayer in school. • In Wallace v. Jaffree (1985), the Supreme Court ruled Alabama's law permitting one minute for prayer or meditation was unconstitutional. • In Lee v. Weisman (1992), the court prohibited clergy-led prayer at school graduation ceremonies. • Lee v. Weisman, in turn, was a basis for Santa Fe ISD v. Doe (2000), in which the Court extended the ban to school sanctioning of student-led prayer at high school football games.
Prayer in School • In Lee v. Weisman (1992), the Court continued its unwillingness to allow prayer in public schools by finding the saying of prayer at a school graduation unconstitutional.
Lee v. Weisman (1992) • 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 restraining order in District Court - but was denied.
Lee v. Weisman (1992) • 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 • 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.
In 1971, the Court ruled that New York state could not use state funds to pay parochial school teachers’ salaries. To be Constitutional the challenged law must Have a secular purpose Neither advance nor inhibit religion Not foster excessive government entanglement with religion. In 1980, this Lemon Test was used to invalidate a Kentucky law that required the posting of the Ten Commandments in public school classrooms. Lemon v. Kurtzman
The Free Exercise Clause • "Congress shall make no law.....prohibiting the free exercise thereof (religion)" is designed to prevent the government from interfering with the practice of religion. • This freedom is not absolute. • Several religious practices have been ruled unconstitutional including: • snake handling • use of illegal drugs • Polygamy • Nonetheless, the Court has made it clear that the government must remain NEUTRAL toward religion.
"See You at the Pole" • Student participation in before - or after - school events, such as "see you at the pole," is permissible. • School officials, acting in an official capacity, may neither discourage nor encourage participation in such an event.