Chapter 19: Civil Liberties: First Amendment Freedoms

1. Chapter 19: Civil Liberties: First Amendment Freedoms Section 2 Assignment Mr.Robinson

2. Freedom of Expression Establishment Clause Free Exercise Clause Separation of Church & State Court Cases Review Freedom of Religion Sources

3. Freedom of Expression • "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 to the Constitution

4. Freedom of Expression • There are two prohibitions in the First Amendment to the Constitution regarding religion that outline actions the government cannot take: • an "establishment of religion" • Establishment Clause • the "free exercise" of religion • Free Exercise Clause

5. McClenghan, W. (2006). Magruder’s American Government. Boston, MA: Pearson Education.

6. Establishment Clause • “The establishment of religion clause means at least this: Neither a state nor the federal government may set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another. Neither can force a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion... . Neither a state or the federal government may, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'" • Everson v Board of Education http://caselaw.lp.findlaw.com/data/constitution/amendment01/02.html

7. Establishment Clause • The Establishment Clause has been interrupted to mean the government is prohibited from the following: • Establishing an official religion • Any action that unduly favors one religion over another. • Unduly preferring religion over non-religion, or non-religion over religion http://topics.law.cornell.edu/wex/establishment_clause

8. Establishment Clause • The practical reality of the situation requires an acceptance of the fact that religion and government will become intertwined in some areas. • The debate is over just how much entanglement does the Establishment Clause tolerate.

9. Establishment Clause • In 1971, the Supreme Court in Lemon v Kurtzman created the Lemon Test which has been used as a guide by lower courts ever since in helping to decide Establishment Clause cases. • “Three ... tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion. • http://www.usconstitution.net/lemon.html

10. McClenghan, W. (2006). Magruder’s American Government. • Boston, MA: Pearson Education.

11. Free Exercise Clause • "The Free Exercise Clause, likewise considered many times here, withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. " • Abington School District v. Schempp http://www.law.cornell.edu/supct/html/historics/USSC_CR_0374_0203_ZO.html

12. Free Exercise Clause • The Free Exercise Clause prohibits the government from the following: • Regulating religious beliefs • Impeding the observance of one or all religions • Discriminating individually between religions http://caselaw.lp.findlaw.com/data/constitution/amendment01/05.html

13. The Free Exercise Clause • The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals. • Religion frequently involve rituals or other practices that incorporate ''conduct'' rather than pure ''belief,'' which has made interpretation of the Free Exercise Clause more difficult. • The question the courts have struggled with over the years is when is it acceptable to prohibit conduct performed on religious grounds. http://caselaw.lp.findlaw.com/data/constitution/amendment01/05.html

14. The Free Exercise Clause • The Supreme Court has generally ruled that when the government can show a “compelling interest,” neutral laws that unintentionally prohibit religious practices are constitutional. • National security public health and safety, and preserving life would be examples of “compelling interest.” http://caselaw.lp.findlaw.com/data/constitution/amendment01/05.html

15. Separation of Church & State • There is nothing in the Constitution that specifically says that there is a wall of separation between religion and government. • The phrase is commonly thought to mean that the government should not establish, support, or otherwise involve itself in any religion.

16. Separation of Church & State • Thomas Jefferson, is directly responsible for giving us this phrase. • In his 1802 letter to the Danbury Baptist Association, then-President Jefferson used the phrase. • Jefferson's letter was specifically pointed out by the Supreme Court in Reynolds v United States in calculating its decision. http://www.usconstitution.net/consttop_reli.html#wall

17. Separation of Church & State • “Believing with you that religion is a matter which lies solely between man and his god, [the people, in the 1st Amendment,] 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 and state.” • Jefferson's Letter to the Danbury Baptists http://www.loc.gov/loc/lcib/9806/danpre.html

18. McClenghan, W. (2006). Magruder’s American Government. Boston, MA: Pearson Education.

19. Court Cases • Lemon v. Kurtzman • Everson v Board of Education • Engel v. Vitale • Abington School District v. Schempp • Reynolds v. United States • Wisconsin v. Yoder These cases were instrumental in clarifying the scope and limits of the Establishment Clause and Free Exercise Clause

20. Lemon v. Kurtzman • Questions before the Court: “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"? • Decision: Yes. The Court articulated a three-part test for laws dealing with religious establishment. The Court found that the subsidization of parochial schools furthered a process of religious instruction, and that the close observation necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. http://www.oyez.org/cases/1970-1979/1970/1970_89

21. Everson v Board of Education • Question before the Court: Did the New Jersey statute violate the Establishment Clause of the First Amendment as made applicable to the states through the Fourteenth Amendment by reimbursing parents who use the public transportation system to bus their children to parochial schools? • Decision: No. A divided Court 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. It was simply a law enacted as a "general program" to assist parents of all religions with getting their children to school. http://www.oyez.org/cases/1940-1949/1946/1946_52/

22. Engel v. Vitale • Question before the Court: Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment? • Decision: Yes. Neither the prayer's nondenominational character nor its voluntary character saves it from unconstitutionality. By providing the prayer, New York officially approved religion. http://www.oyez.org/cases/1960-1969/1961/1961_468

23. Abington School District v. Schempp • Question before the Court: 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? • Decision: 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." http://www.oyez.org/cases/1960-1969/1962/1962_142

24. Reynolds v. United States • Question before the Court: Does the federal anti-bigamy statute violate the First Amendment's free exercise clause because plural marriage is part of religious practice? • Decision: No. The Court held that the statute can punish criminal activity without regard to religious belief. The First Amendment protected religious belief, but it did not protect religious practices that were judged to be criminal such as bigamy. http://www.oyez.org/cases/1851-1900/1878/1878_0

25. Wisconsin v. Yoder • Question before the Court: 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? • 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. 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. http://www.oyez.org/cases/1970-1979/1971/1971_70_110

26. Review Select a number to view the question.

27. Question 1 • If Congress passed a law banning the use of peyote in religious ceremonies, which clause of the First Amendment would it MOST be violating? • Free exercise clause • Establishment clause

28. Question 2 • In what Amendment does the phrase “separation of church and state” appear? • First Amendment • Fourteenth Amendment • None

29. Question 3 • If a city passed a law requiring a prayer at the beginning of school, this would violate the • Free exercise clause • Establishment clause

30. Question 4 • Can a state pass a law banning snake handling, when such a law would indirectly prohibit the use of poisonous snakes in religious ceremonies? • Yes • No

31. Question 5 • Can a state pay part of the salary for a teacher who works at a parochial school? • Yes • No

32. Question 1A Back to Question • That is correct. Because such a law is specific in impeding the observance of a religious ceremony it would be unconstitutional. • However, if a law was passed outlawing all uses of peyote, the courts have deemed this to be constitutional.

33. Question 1B Back to Question • Incorrect. The law is intended to regulate religious conduct, and does not directly promote one religion over another, which is what would be required for it to violate the Establishment Clause. • If you got this question wrong, remember to click on Establishment Clause and Free Exercise Clause to read the material again.

34. Question 2A Back to Question • Incorrect. The phrase “separation of church and state” is not in the Constitution. It is in fact taken from a letter from Thomas Jefferson to the Danbury Baptist Association. • If you got this question wrong, click on Separation of Church & State to review the information again.

35. Question 2B Back to Question • Incorrect. The phrase “separation of church and state” is not in the Constitution. It is in fact taken from a letter from Thomas Jefferson to the Danbury Baptist Association. • If you got this question wrong, click on Separation of Church & State to review the information again.

36. Question 2C Back to Question • Correct. The phrase “separation of church and state” is taken from a letter from Thomas Jefferson to the Danbury Baptist Association.

37. Question 3A Back to Question • Incorrect. The school is directly condoning prayer which creates a preference for religion over non-religion, and thus violates the Establishment Clause. • The law does not impede how one practices their religion, which is what would be required for it to violate the Free Exercise Clause. • If you got this question wrong, remember to click on Establishment Clause and Free Exercise Clause to read the material again.

38. Question 3B Back to Question • Correct. The school is directly condoning prayer which creates a preference for religion over non-religion, and thus violates the Establishment Clause.

39. Question 4A Back to Question • Correct. Government would have a “compelling interest” in prohibiting such practices, in this case, public safety and preservation of life. • Because the ban is neutral, in that it bans all types of snake handling and does not focus specifically on their use in religious ceremonies, it is constitutional.

40. Question 4B Back to Question • Incorrect. Because the ban is neutral, in that it bans all types of snake handling and does not focus specifically on their use in religious ceremonies, it is constitutional. Also, the government can demonstrate a “compelling interest” in such a ban. • If the ban was specific to religious ceremonies, there is some question as to the legality of the law. This question in particular has not been address by the Supreme Court. • Click here to review “compelling interest”

41. Question 5A Back to Question • Incorrect. The Supreme Court ruled on this very issue in the case Lemon v. Kurtzman,in which it developed the three part Lemon test. • Significant government oversight would be required to ensure the funds were used only for secular purposes. • As a result government and religion would become too entangled. • Click here or here to review.

42. Question 5B Back to Question • Correct. The Supreme Court ruled on this very issue in the case Lemon v. Kurtzman,in which it developed the three part Lemon test. • Significant government oversight would be required to ensure the funds were used only for secular purposes. • As a result government and religion would become too entangled.

43. Sources • McClenghan, W. (2006). Magruder’s American Government. Boston, MA: Pearson Education. • Cornell University Law School: • http://topics.law.cornell.edu/wex/free_exercise_clause • http://topics.law.cornell.edu/wex/establishment_clause • http://www.usconstitution.net/lemon.html • Find Law: • http://caselaw.lp.findlaw.com/data/constitution/amendment01/05.html • Library of Congress: • http://www.loc.gov/loc/lcib/9806/danpre.html • OYEZ: U.S. Supreme Court Media: • http://www.oyez.org/ • Audio: • http://www1.teachertube.com/viewVideo.php?video_id=202913

44. History-Social Science Content Standards for California Public Schools • 12.1.6 - Understand that the Bill of Rights limits the powers of the federal government and state governments. • 12.2.1 - Discuss the meaning and importance of each of the rights guaranteed under the Bill of Rights and how each is secured (e.g., freedom of religion, speech, press, assembly, petition, privacy). • 12.3.3 - Discuss the historical role of religion and religious diversity. • 12.5.1 - Understand the changing interpretations of the Bill of Rights over time, including interpretations of the basic freedoms (religion, speech, press, petition, and assembly) articulated in the First Amendment and the due process and equal-protection-of-the-law clauses of the Fourteenth Amendment. Grade Twelve Standards - Principals of Democracy: http://www.cde.ca.gov/be/st/ss/documents/histsocscistnd.pdf