Civil LIberties and Public Policy

Civil Liberites Then and NowChange over time

• Barron v Baltimore 1833

• Which amendment brought the “incorporation” of the Bill of Rights?

• Gitlow v. New York 1925

Civil Liberites Then and NowWhich amendments aren’t nationalized?

Freedom of Religion

The First Amendment does not grant “freedom of religion.”

Two specific freedoms:Freedom from the establishment of religion.Freedom from interference in the exercise of one’s religion.

Establishment Clause

“Congress shall make no law respecting the establishment of religion . . .”

Meanings:No State Religion, orWall of Separation, orNeutrality and Non-promotionNOT: absence of religious coercion

Free Exercise Clause“ . . . nor prohibiting the free exercise

thereof.”

MeaningsBeliefs cannot be prohibited, AND

Practices cannot be prohibited on religious grounds, BUT

Laws can prohibit a practice generally even if some religions do it.

Free Exercise ClauseThe Free Exercise ClauseSome religious practices may conflict with other

rights, and then be denied or punished

Employment Division v. Smith (1988) - work related “misconduct”

state gov’t doesn’t have to justify the burdens it might put on religious exercise which are imposed by laws nuetral towards religion

Free Exercise Clause

The Free Exercise ClauseSome religious practices may conflict with other

rights, and then be denied or punished

Religious Freedom Restoration Act (1993)aka the American Indian Religious Freedom Act

SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF PURPOSES.

(a) FINDINGS.--The Congress finds (1) the framers of the American Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;

(2) laws "neutral" toward religion may substantially burden religious exercise as surely as laws intended to interfere with religious exercise;

(3) governments should not substantially burden religious exercise without compelling justification;

Exercise vs. EstablishmentFree exercise by government officials can

establish religion.Wearing religious clothing while carrying out one’s official duties

can create an establishment of religion, even if one’s religion requires the clothing.

Most often, preventing establishment takes precedence over allowing free exercise.

School PrayerEngel v. Vitale (1962)Official school prayer was recited at the beginning of each

day, led by school officials.

Abington School District v. Schempp (1963)State law required bible recitations at the beginning of

each school day.Organized religious activities in public schools constitute establishments of religion.

Engel: School officials cannot promote religion, even non-coercively.

Abington: With regard to religion, “The government is neutral, and, while protecting all, it prefers none, and it disparages none.”

School PrayerSchool sponsorship is

the decisive factor.

School-sponsored actions are not free exercises of religion.

Student-led prayer is unconstitutional if it is school-sanctioned. Santa Fe ISD v. Doe (2000)

Violation of the establishment clause.

Schools and PrayerA student prays silently to herself

before an exam. The teacher punishes her. Have her rights been violated?

The religious act is undertaken by a private citizen, not a government official.

There is no establishment of religion; neither Engel nor Abington apply.

The student’s free exercise rights have been violated.

Lemon TestFederal funds to parochial schools

- Elementary and Secondary Schools Act

Lemon v Kurtzman (1971)1. have a secular legislative purpose2. Have a primary effect that neither

advances nor inhibits religion3. not foster an excessive gov’t

“entanglement” with religion

Schools and Prayer

Agostini v Felton 1997public schools could send teachers to

remediate in parochial schools

Zelman v Simmons-Harris 2002families in Cleveland, OH could use

vouchers to send students to religious schools

Schools and Prayer

Kiryas Joel v Grumet 1994

NY can’t create public school district favoring Hasidic Jews

Schools and Prayer

1984 Equal Access Actno school receiving fed. funds can keep

students from using facilities for religious worship if school open for other student meetings

Schools and Prayer

UVA must subsidize religious publications just as much as other school publications are subsidized

but Washington state allowed to withhold general scholarship monies to students pursuing devotional theology degree

Summary

Freedom “of religion” is freedom from establishment and freedom to exercise.School sanctioned prayer is an establishment of religion.Court cases prohibiting school prayer only prohibit school-sanctioned prayer