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Law School Legal Outline Notes for Religion Law

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Chapter 1: Introduction

A. THE ROLE OF CHARACTERIZATION AND “LEVELS OF GENERALITY” IN CONSTITUTIONAL INTERPRETATION: Intro: a. Characterization is crucial: can have same fact pattern but different characterization of issue - different applications of substantive law – different results. We will never find the real meaning of the religion clauses, just searching for the appropriate meaning. Personal Value Systems/Perspectives of Court Justices: will determine their characterizations of the issues and interests involved – will determine whether Court takes a separationist or accommodationist approach. Sisyphean Task (endless and unavailing task): Court can change everything we learn in one case. 3 Approaches to Interpreting and Applying 1A: 1) Separationist 2) Moderates 3) Accommodationist

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b.

c.

d.

e.

2.

Characterization as a Process: a. 2 (Competing?) Types of Interpretation and Analysis: 1) In categorization (taxonomists), characterization of facts is crucial. 2) In balancing (grocer), characterization of interests is crucial – occurs b4 balancing a) Characterization of interests involved can have a powerful, yet unstated, influence on outcome of any given case or controversy. Court usually FAVORS balancing to categorization.

b. 3.

Characterization and the Constitution Norm: Ascertaining the Appropriate Level of Generality: a. b. c. See Table 1.1: Characterizing “Substantive” 1A Claims for EXAM. Especially interesting in discussion of how to define religion. Key Considerations: 1) Textual source of constitutional power or limit in question; 2) The sources, in addition to Constitution, upon which Court relies for interpretive guidance;

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3) 4) 5)

6) 7)

8)

a) Constitutional structure b) HISTORY c) C/L d) Other precedent e) Experience of people of US f) Present-day US attitudes. How the justices choose to characterize the individual right or interest; How the justices choose to characterize the state‟s interest; The value or weight assigned to either the individual interest (is the individual‟s interest a fundamental right?) or the interest of the state (is the state‟s interest “compelling” or “important” or “rational” or “arbitrary”?); Appropriate standard of judicial review given the suggested characterization; Choices reasonably available to Court that might accommodate the allegedly conflicting interests (should the Court subordinate one interest to another or attempt to strike a reasonable balance b/w them?); The forum in which such a balance should ultimately be struck, whether in one of the 3 federal branches, in the states, or in the constitution-making process set forth in Article V.

4.

Characterization and the Search for Neutral Principles: a. It is the process by which the “meaning” of words and phrases are ascertained which we are attempting to pin down.

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Characterization and the Incorporated First Amendment: a. Table 1.2: The “Character” of the Incorporated 1A: how do religions clauses interact with other 1A rights and 14A.

B. THE PROBLEM OF RELIGIOUS: THE “ROLE” OF RELIGION AND THE DEMOCRATIC EXPERIENCE: 1. 2. What Is or Should Be the Role of Religious Liberty in a Democratic Society? Examples of How Characterization Can Effect Outcome: a. Public or Private Property: 1) In Turpin v. Lockett (Va. 1804), court characterized land as public property, thus govt gets the land. 2) In Territ v. Taylor (US 1815), Court characterizes land as private property and thus church gets land. Assimilation or Coercion and Compulsion: 1) Minersville School District v. Gobitis (US 1940) – Frankfurter – p30: characterized the case as an issue of assimilation: a) Held: upheld dismissal of students from school for refusing to say Pledge of Allegiance to American flag for religious reasons. b) Reason: (1) Timing is Crucial: on verge of entering WWII. (2) “We live by symbols” - flag is a symbol - flag “is binding tie of cohesive sentiment” and that is the “ultimate foundation of a free society”. (3) Characterize individual’s right as religious tolerance - not religious liberty.

b.

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(4) Balance: this is a matter of assimilation, thus state‟s rights override religious rights. 2) W.Va. State Bd. of Ed. v. Barnette (US 1943) – Jackson – p36: characterized the case as an issue of coercion of conscience. a) Held: Court reversed dismissal of students from school for refusing to say Pledge of Allegiance to American flag for religious reasons. b) Reason: (1) Uses very value laden language. (2) Certain freedoms should not be dependent on elections – says Gobitis gave too much deference to legislature. (3) Characterize individual’s right as freedom of conscience – thus, trumps state‟s interest. (a) Does not say religious tolerance but instead focuses on a very broad concept of religious liberty – freedom of the mind. (b) “If there is any fixed star in our constitutional constellation, it is that [govt] . . . can prescribe what shall be orthodox in . . . religion . . . or force citizens to confess by word or act their faith therein.” (c) “Compulsory unification of opinion achieves only the unanimity of the graveyard” (4) Distinguish Gobitis even though going to overrule it: (a) Assertion of these individual religious beliefs DOES NOT EFFECT any other individual‟s rights. (b) Sole conflict is b/w individual rights and authority of state and there is no compelling state interest in security here like there was in Gobitis. (5) Public education is supposed to be of secular instruction and political neutrality – Framers would have been SHOCKED at this. c) Frankfurter’s dissent: 3) Reasons for Change from Gobitis to Barnette: a) Change in Court’s composition: 3 justices changed their minds and 2 new justices added. b) Court felt it made a mistake in Gobitis due to context of WWII. c) Court uses characterization to correct.

Chapter 2: History of the Religion Clause

A. BACKGROUND TO THE PASSAGE OF 1A: A SHORT STUDY OF RELIGIOUS LIBERTY IN THE COLONIES:

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3 Groupings: a. New England: 1) Roger Williams = most famous pre-Revolutionary speaker on the relation of law and religion in America. a) Coined the wall metaphor: “hedge or wall of separation b/w the garden of the church and the wilderness of the world.” b. The Middle Colonies c. The Southern Colonies Most Colonies and Most Early States Had Established State Religions. The Impact of the Virginia Experience: a. Generally: 1) Court places great reliance on the history of dis-establishment of Church of England in Virginia to interpret 1A. b. A Memorial and Remonstrance: 1) One of the most influential docs in the history of law and religion – embraced by Court as a key indicator of the meaning of religion clauses. 2) Written in response to A Bill Establishing a Provision for Teachers of the Christian Religion. 3) Key Principles: a) Religion does NOT need support of civil govt to prosper. b) US is unique b/c of religious freedom. c. A Bill for Establishing Religious Freedom: 1) Key Principles: a) No compelled support of religion. b) No prosecution b/c of religious belief.

2. 3.

B. FRAMING AND DEBATING THE CONSTITUION: 1. Religion clauses part of glue that cemented country together.

C. THE ADOPTION OF THE 1A 1. Generally: a. There were initially 3 proposals concerning religion – Senate and House whittled them down to one. b. Significant questions remain as to whether the language was intended to create 2 separate clauses, 2 interdependent clauses or 1 clause. Most Probable Understanding of Religion Clauses By Framers: a. Congress was prohibited from establishing a national church. b. Congress was prohibited from interfering with the free exercise of religion. 2 Conflicting Interpretations of 1A – Very Strong Historical Roots for Both Views: a. Separationists. b. Non-preferentialist/Accommodationists What Does NW Ordinance Suggest About Congress’ Intent Concerning Religious Liberty?

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3.

4.

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a. b.

Article I: “No person . . . shall ever be molested on account of his mode of worship, or religious sentiments, in said territory.” Article II: “Religion . . . being necessary to good government and the happiness of mankind . . . shall forever be encouraged.”

D. JEFFERSON’S LETTER TO THE DANBURY BAPTIST ASS’N: 1. 2. Most famous statement concerning the proper relationship of religion and govt. Establishes Wall Metaphor (borrowed from Roger Williams): there is “wall of separation b/w Church and State.” Establishes Belief/Act Distinction: a. Beliefs are protected. b. Govt can regulate acts. Is Court’s Reliance Misplaced? a. Many members of Court put great weight in this letter. b. Was this simply an off-hand reply to political supporters, meaning little in terms of constitutional jurisprudence or was this a clear statement of TJ’s views? c. Ironic b/c TJ attended religious service in House of Representatives two days later.

3.

4.

E. ON HISTORY AND THE RELIGION CLAUSES: 1. In no other area of constitutional law has the search for the meaning of the text been as driven by the study of the historical record as the Religion Clauses.

Chapter 3: Law, Religion and Culture in Antebellum America

A. OATHS: 1. Rules: a. Current General Approach: cannot require oath – can be either. b. Oath was sign of W’s competence: any W who did not believe in God or future reward was incompetent – religious conscience ensured veracity on stand – thus non-religious persons could not testify.

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c.

Religion can be used to test credibility: even though court established that religion could not be a basis for testing W‟s competence, courts permitted a W‟s credibility to be attacked based on the lack of religious belief

2.

Jackson ex dem. Tuttle v. Gridley (NY 1820): bars a W from testifying to his religious beliefs.

B. LEGAL PRIVILEGES AND DISABILITIES ACCORDED CATHOLICS AND JEWS: 1. Courts Recognize Priest-Penitent Privilege: a. No privilege in English C/L b. People v. Phillips (NY 1813) 1) Held: Priest does not have to testify as to confessions with D. 2) Reason: a) Characterization: court frames issue in terms of constitutional law not law of evidence. b) Horrible Choice: cannot force individual to choose b/w civil and religious laws. 3) Note: Author of opinion wanted to run for political office in a highly catholic section. c. Scope of Privilege is usually limited to confessional: not apply to every conversation with a priest. d. Most states now recognize the privilege through statute but some still hold out. e. See Judge Clinton’s proposed limitations on FE – foreshadows great constitutional issues of 19th century – whose view of religion? Testifying on the Sabbath Allowed - Govt Need for Expedient Justice System Trumps Individual’s Religious Requirements: a. Simon’s Executors v. Gratz (Pa. 1831) 1) Held: Jewish person can be compelled to testify on the Sabbath. 2) Reason: a) Duty to abide by civil law trumps individual religious belief. b) Christianity is part of PA C/L c) Expressly disavows Phillips case. 3) Significance: this view has troubling implications. Continuing Tension b/w Civil Law and Individual’s Religious Beliefs.

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C. BLASPHEMY: 1. Generally: a. Prosecutions for blasphemy were based on a number of assumptions underlying the C/L and the translation of the C/L to the US. b. Two Common Themes Illustrated in Blasphemy Cases: 1) History is part of modern application of 1A law. 2) When we deal with areas of the law that inhere values (especially majority group values), law will borrow from non-secular sources. c. Common Analytical Approaches in 19th Century: 1) Assimilationist/Pluralistic: law must support differences – protects diversity by protecting minority groups - 19th century judges were usually assimilationists.

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2) Individualistic: protects diversity by protecting individuals over any culturally dominant group. 2. General justification for upholding blasphemy conviction was that the C/L incorporated Christianity: a. Thus, it was in the interest of society to include Christian religion, thus words against Christianity constituted an abuse of religious freedom. There is no ESTB CL violation b/c understanding of ESTB CL was very different at the time. Blasphemy Cases: a. People v. Ruggles (NY 1811) 1) Held: upholds blasphemy conviction for saying Jesus was a bastard and mother was a whore. 2) Reason: a) C/L based on Christianity b) Blasphemy law does not violate ESTB or FE – merely protecting order. c) Very limited view as to Framers‟ intent with Religion Clauses. d) Individual‟s rights must be constrained in favor of community‟s interests b. Updegraph v. Comm. (Pa. 1824): 1) Held: upholds blasphemy conviction for saying Bible was a fable. 2) Reason a) Takes strong assimilationist approach. b) Christianity as part of PA C/L: no society can tolerate a willful attempt to subvert its religion. c) Individual‟s rights must be constrained in favor of community‟s interests. d) Blasphemy laws have nothing to do with forcing an individual‟s conscience – there are merely designed to preserve the peace. By later 20th Century, most courts had abandoned the idea that Christianity was a part of the C/L. Letter of TJ to Major John Cartwright, June 5, 1824: a. Rejects idea that C/L had its roots in Christianity. b. Argues there is a misinterpretation of original text. c. C/L was developed in time of non-Christian pagans. J. Story – Christianity a Part of the C/L: a. Story responded to and criticized Jefferson‟s view after TJ died. b. Story thought religion was foundation of a stable, moral society. c. Story‟s views = dominant view from 19th Century until 1920s. d. In 1930s and 1940s, Jefferson view gained prominence.

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4.

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D. SUNDAY LAWS: 1. Generally: a. Rationale: justified by claim of legislative authority over police matters 1) Not justified by resort to claim that Christianity is a part of C/L. b. Problematic b/c reflect religion of dominant group in society. Key Issues:

2.

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a. b. 3.

Does recognition of Sunday as a day of rest violate ESTB CL of US Constitution or state religion clauses? If such laws are enforceable, are exemptions for sabbatarians constitutionally required?

Sunday Law Cases: a. Specht v. Comm. (Pa. 1848) 1) Held: upheld b/c secular purpose. 2) Reason: a) Characterize Sunday Law as a civil regulation with a secular purpose. b. Ex Parte Newman (Cal. 1858) 1) Held: struck down b/c purpose of law was purely religious. 2) Reason: a) Characterize Sunday Law as a religious law - disguised to favor Christianity. b) Focus is on religious liberty not just toleration. 3) Field’s dissent: such inconvenience is merely incidental to all general laws. a) This same argument is often used today to prohibit exemptions and accommodation of particular religious practices. 4) Significance: ONLY court to hold a Sunday Law unconstitutional. Echo reasoning of Employment Div. v. Smith – generally applicable laws do not run afoul of Religion Clauses. States eventually stopped the use of Sunday Laws by statute.

4.

5.

E. CHURCHES AND THE HOLDING OF PROPERTY: 1. Generally: a. Context: US has expanded into 2 areas with majority non-protestant groups. Key Issues: a. If church is not incorporated, then congregation or persons become legal entity with ownership rights – but this legal entity changes with time – problematic. b. Is 43 Elizabeth part of C/L or is it statutory (and therefore requires enactment). Church Property Cases: a. Gallego’s Executors v. Atty General (Va. 1832): 1) Held: unincorporated church cannot own property - bequest of land to church fails as a matter of law b/c RCC is unincorporated. 2) Reason: a) Uncertain, unidentifiable beneficiaries b) Legislative intent was to repeal 43 Elizabeth. 3) Note: author of opinion basically attacks Catholicism. b. Vidal v. Girard’s Executors (U.S. 1844): 1) Held: bequest of school where “no minister of any sect shall hold any position” is valid. 2) Reason: 1) Relies on Christianity as part of C/L or PA. 2) Story goes out of his way to characterize Girard‟s will so that it does not clash with 1A or Pa. constitution: will does not say that Christianity cannot be taught but only that clerics cannot teach it – Girard is not excluding religion but sectarism.

2.

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F.

JOSEPH STORY, THE ANTEBULLUM SUPREME COURT AND REGLIGION:

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Joseph Story – Commentaries on the Constitution: a. Almost alien to our modern views of 1A. b. Rejects wall of separation - provides full articulation of accommodationist position. c. Real purpose of 1A was to prevent rivalry b/w sects. d. e. Focuses on religious tolerance rather than religious freedom. f. Story as a “framer”?: what impact should his writings have? Permoli v. New Orleans (US 1845): 1A did not apply to state governments until 20th Century – thus, state clearly has power the regulate religion – 1A does not take this away – once state establishes itself as sovereign, federal laws no longer apply.

2.

Chapter 4: Religious Liberty, Religious Pluralism and Government Action from the Civil War to 1930

A. INTRODCUTION: 1. 2. Happenstance Purposeful

B. RELIGIOUS EDUCATION AND THE “SCHOOLS” QUESTION PRIOR TO 1920: 1. The Bible in the Common School: a. Historical Context: 1) US growth is rapid from coast to coast. 2) Emerging Pluralism and Demographic Shift in Majority Religion: Catholicism gaining prominence in pockets throughout US – led to Nativist movement (anti-Catholic) 3) Growing call for public education – new idea.

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State Support for Catholic Schools: pending fight is over whether or not states should fund catholic schools – many Catholics thought that common schools (which received state funds) where inculcating students with protestant religion. b) Catholics set out to build their own education system. a) b. General Approach: most courts upheld Bible reading requirement in common schools b/c they found it had a secular purpose. 1) Rationale: a) Bible is good tool to teach English b) Good moral lessons – schools are suppose to teach moral values. 2) Opposing Argument: Bible reading is sectarian – purpose and tendency is to inculcate. 3) Underlying Theme: public schools = ultimate vehicle for ASSIMILATE students to US. Cases: 1) Note shift in view of Bible reading from 1850s to 1890s – growing pluralism. 2) Donahoe v. Richards (Me. 1854): a) Held: upheld student‟s expulsion for not satisfying Bible reading requirement. b) Reason: (1) Characterization: court characterizes the issue in terms of educational value rather than 1A issue: this requirement is about learning to read, NOT learning to believe. (2) Appropriate role of schools is to assimilate their students. (3) Shift from accommodation to neutrality: shifts basis of justification for upholding Bible reading requirement from accommodationist position (e.g., Justice Story who would have said that religion was a valid part of school education) to a neutralist position (e.g., Bible has secular purpose as literature). 3) State ex rel. Weiss v. District Board (Wis. 1890): a) Held: struck down Bible reading requirement b) Reason: schools should be non-sectarian. (1) Characterization: totally different from Donahoe – here, court asks whether Bible reading requirement is sectarian instruction? (2) Bible Reading has tendency to inculcate sectarian ideas. (3) Purpose of schools is to make students feel included, not excluded – court worried about stigma attached to those who do not participate. c) Cassoday’s concur: d) Orton’s concur: follows Roger Williams‟ approach to religious freedom – religion is best protected when excluded from public wheel. e) Significance: only case to hold Bible reading unconstitutional b4 1900. Common Theme = individual religious beliefs/acts in conflict with a general law: 1) Courts are reluctant to grant individual accommodations that go against a general law.

c.

d.

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State Financial Support of Religious Schools: Growing anti-Catholic sentiment. The Blaine Amendment: 1) Definition: more protective than 1A. 2) Outcome: failed but most Western states adopted as part of their state constitutions – more protective than 1A. The Christian Education Amendment of 1888:

a. b.

c.

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3.

Education, Native Americans and Religious Liberty: a. Quick Bear v. Leupp (US 1908) 1) Issue: can direct appropriation of Congressional funds be used for religious purposes? 2) Held: Native Americans can use trust fund and treaty fund money (but not direct appropriations) to set up religious schools. 3) Reason: a) Characterization is crucial in this case: Court, relying on trust law, turns 1A on its head - that if federal govt prohibited Native Americans from receiving religious education, then this would violate FE CL. 4) Limited Scope: this generous view toward religious beliefs of Native Americans only applied to those who held Christian religious beliefs – see Ghost Dance problems. 5) Significance: keep in mind the theme of how the majority Christian religion treats minority religions.

C. PROTESTANTISM AND MINORITY RELIGIONS: Introduction: a. Think about Dershowitz article on Bush‟s Inauguration and the presence of Protestantism at Inauguration. 1) Is Bush assuming that this is Christian nation? 2) Characterization – role of religion in public ceremony or is this mere accommodation?

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2.

Defining the Common Culture: a. Law, Religion and the Supreme Court: 1) Use purposeful and happenstance techniques to achieve desired result. 2) Cases: a) Church of Holy Trinity v. US (US 1892) - Brewer: (1) Held: statute did not apply to minister (2) Reason: b/c evil to be addressed by statute was no importation of ministers. (3) Significance: (a) Example of purposeful interpretation technique: look at statute as a whole, look for goal of legislation, and then interpret and apply statute with that goal in mind. (b) Earliest full characterization of Religion Clauses - contrast this with later definitions. (c) Purpose of Religion Clause is to reinforce idea that US is a “religious nation” - CJ Warren made similar remarks in 1950s in efforts to gain support for pending Brown decision. b) Bradfield v. Roberts (US 1899) - Peckham: (1) Held: allocation of Congressional funds to religious hospital is constitutional. (2) Reason: happenstance interpretation technique. b. Sunday Laws in the Supreme Court:

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1) Although Field still arguing Sunday Laws are constitutional, Court struck down such laws on E/P grounds. The Challenge of Polygamy: a. Jarring Thought: Despite 1A, US intentionally coerced a religion into changing its beliefs. 1) Rationale: govt can regulate/prosecute acts but cannot coerce religious beliefs – polygamy is a religious act (TJ). 2) Principled Distinction? line b/w belief and act is a tough one and it is a dichotomy that the Court seems to pull out when it does not like a particular practice which would normally be protected by 1A. Cases: 1) Reynolds v. US (US 1878) – CJ Waite: a) Held: anti-polygamy law is constitutional. b) Reason: (1) Court uses belief/act dichotomy and finds no 1A violation (rely on TJ‟s Danbury letter). (2) Why is polygamy immoral: b/c polygamy comes from Bible, it is hard for Court to articulate why it is so immoral. (3) Individual religious beliefs in conflict with a general law. c) This opinion has been subject to significant criticism 2) Davis v. Beason (US 1890) - Field: a) Held: upheld statute that said polygamist cannot hold office. b) Reason: (1) Court uses rigid belief/act dichotomy (2) Distinguish b/w religions and cults. (3) Criminal law trumps FE CL: 1A was never intended to be “invoked as protection against legislation for the punishment of ACTS inimical to the peace, good order and morals of society.” c) Significance: Court trying to define religion – very theistic definition.

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b.

D. THE COLLASPE OF DE FACTO ESTABLISHMENT:
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Christianity is no longer law of US. Prohibition: a. During Prohibition, Congress exempts wine for religious use.

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Evolution, the Scopes Trial and Religion in the 1920s: a. b. Compare 2 very different worldviews – modernists and fundamentalists. Continuing Issue: to what extent should creationism, evolution or both be taught in public schools.

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Chapter 5: The Contours of Religion Clause Jurisprudence A. INTRODUCTION: 1. Shifting Meaning of 1A Depending on Court’s Composition a. Why characterization is very important: b/c of marked disagreements among members of Court concerning proper meanings of the Religion Clauses, the majority, concurring and dissenting opinions often characterize the issue differently. Incorporation: Religion Clauses not intended to apply to states initially but later incorporated – incorporation of ESTB CL was much more controversial.

2.

B. FREE EXERCISE OF RELIGION: 1. The Supreme Court and Early Interpretations of the free Exercise Clause: a. Belief-Act Distinction set out in Reynolds has persisted. 1) Belief – absolute protection. 2) Action – qualified protection: Court has held that actions can be protected in some circumstances (Cantwell and Sherbert).

2.

Modern Free Exercise Clause Jurisprudence: a. Tests: 1) Beliefs/thoughts: absolute ban on govt burden on thoughts (Sherbert). 2) Acts: a) Generally: incidental effect of legitimate govt programs are not within FE CL, must be prohibition or penalty for belief (Lyng). b) ??? Pre-Smith Test – strict scrutiny?: (1) Does the law burden FE?

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(a) Under Sherbert, burden can be either i. Direct (purpose of law); OR ii. Indirect (effect of law). (b) This can include foreclosing a benefit given to all others b/c of religion (Widmar). (2) Is there a compelling state interest of sufficient magnitude to override the interest claimed under the FE? (Yoder). (a) Examples of Compelling interests: i. Strong interest in uniform day of rest (b) Examples of non-compelling interests: c) ??? Post-Smith Test – rational basis?: (1) FE does not allow an individual to violate a “valid and neutral law of general applicability” b/c of conflict with religious belief. (2) Claimant‟s only argument is that law is NOT neutral or generally applied. (3) Limits Sherbert test to unemployment situation. d) Comment on Smith Test: everyone except Scalia seems to dislike this test – legislature responds with RFRA but Court strikes down as unconstitutional. b. Cases: 1) Sherbert v. Verner (US 1963) – Brennan - p205: a) Facts: 7th day adventists cannot collect unemployment b/c will not work on Saturday. b) Held: no state may exclude individuals because of their faith or lack of it from receiving the benefits of public welfare legislation. c) Reason: (1) Court sets out 2-part test from Everson. (2) Burden: (a) Govt imposes untenable choice b/w belief and work. (3) Prevent fraud in collect unemployment benefits is NOT a compelling state interest. (a) This seems more compelling that day of rest interest in Braunfield – is Court overturning Braunfield? d) Douglas’ Concur: negative right – “this case is not resolvable in terms of what an individual can demand of govt, but solely in terms of what govt may not do to an individual in violation of his religious scruples.” e) Stewart’s concur: (1) sees FE CL as a positive rather than a negative right (2) Says Court‟s interpretation of ESTB CL is putting it on crash course with FE CL. f) Harlan’s dissent: (1) Foreshadow majority’s view in Smith: wants to limit reach of FE CL to purposeful discrimination against religious believers – thus, general law with incidental burdens does not give rise to FE claim. (2) Characterizes issues differently – this was “personal consideration” of P. (3) Slippery slope. (4) Says Court is overruling Braunfield even though it does not say so. (5) He would prefer a statutory exemption. 2) Wisconsin v. Yoder (US 1972) – CJ Burger - p214: a) Facts: Amish children and compulsory school attendance law. b) Held: law violates Amish FE. (1) Rule – strict scrutiny: neutral reg or law may violate FE if it unduly burdens free exercise of religion unless there is compelling state interest. c) Reason: (1) Lots of reliance on Amish community’s success - contributions.

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(2) Too hard to separate belief from act here. (3) Very strict scrutiny – even neutral regs: “A reg neutral on its face may, in its application, nonetheless offend the constitutional requirement for govt neutrality if it unduly burdens the FE.” (a) Smith is going to change this general principle. (4) There is a burden: (a) Compelling attendance would destroy Amish church community, (5) No compelling state interest: (a) States‟ interests: i. Some degree of education is necessary. ii. Education prepares individuals to be self-reliant and self-sufficient citizens in society. (b) These fail – “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the FE of religion.” (c) Only a marginal cost to society to accommodate. d) White’s concur: state‟s primary interest already accomplished. e) Douglas’ dissent in part: focus on children‟s‟ religious liberty interest rather than parents. f) Comments: (1) Case shows huge change in rural education. (2) Outlines all the interests involved: (a) Parents‟ interest; (b) State‟s interest; (c) Public‟s interest; (d) Children‟s‟ interest. (3) Shows Court is more tolerant of Amish values than Mormon ones. (4) Case = ultimate accommodationist position (5) US v. Lee (US 1982): limits Yoder - if voluntarily enter commercial activity, not going to get exemption. 3) Widmar v. Vincent (US 1981) – Powell - p223 a) Facts: school will not allow religious groups to use school facilities. b) Held: c) Reason: foreclosing a benefit, given to all others, b/c of religion violates FE. d) White’s Dissent: says free speech NOT include FE – says majority is eviscerating Religion Clauses. e) Major Shift in Application of 1A: characterize away from FE and toward Free Speech – focus on viewpoint discrimination - Court does this to avoid conflict b/w FE and ESTB CL. f) Legislative Response – Equal Access Act: bars highschools from refusing access to religious and philosophical groups if it granted access to other noncurricular orgs. 3. Native American Religions and the Free Exercise Clause: a. Generally: as a group, Native Americans, have not fared as well as Christian groups in application of FE. Cases: 1) Bowen v. Roy a) Facts: parents not want SSN for daughter. b) Held: internal decisions of a govt‟l agency could not be interpreted to violate FE CL.

b.

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2) Lyng v. NW Indian Cemetery Protective Ass’n (US 1988) – O‟Connor - p230 a) Held: no FE violation. b) Reason: (1) Justice White’s opinion in Yoder is influential. (2) No burden: (a) Adopt Douglas‟ negative right interpretation of FE CL from Sherbert. (b) No coercion (thus, distinguish Yoder) or penalty for belief. (c) Govt is managing land in neutral matter: Court focuses on form of governmental action rather than its effect. (3) Court does not even get to issue of whether state has a compelling state interest – but points out: (a) Govt has an interest in: i. Managing federal land (as landowner) - govt has ultimate right to use it; ii. Allowing exploitation of resources on federal land. (b) Govt would be unable to operate if had to accommodate every single belief. c) Brennan’s dissent: (1) FE is directed against any form of governmental action –whether direct or indirect – that frustrates or inhibits religion. (2) Analogous to Yoder. (3) Attacks “coercion analysis” – argues for “effects/impact” analysis. (4) Surreal Result: “governmental action that will virtually destroy a religion is nevertheless deemed not to „burden‟ that religion”. 3) Employment Div. v. Smith (US 1990) – Scalia - p240: a) Facts: EEs fired for peyote use. b) Issue: whether FE permits state to include religious-inspired peyote use within reach of its general criminal prohibition on drug use, and thus permits state to deny unemployment benefits to persons dismissed from their jobs b/c of such religiously inspired use. c) Held: no FE violation (1) Rule: FE is not offended by a generally applicable and otherwise valid law if that law has merely incidental effect of burdening the exercise of religion. (2) right of FE does not relieve an individual of an obligation to comply with a valid and neutral law of general applicability on the ground that the law prohibits (or requires) conduct that his religion requires (or prohibits). d) Reason: (1) Maintain belief/act distinction. (a) Beliefs: i. Govt may not compel affirmation of belief. ii. Punish the expression of religious doctrines it believes to be false; iii. Impose special disabilities on the basis of religious views or religious status; iv. Lend its power to one or another side in religious controversies over religious authority or dogma. (b) Acts: govt cannot prohibit acts when they are engaged in for religious reasons or ONLY b/c of religious belief they display. i. But P in this case seek to make FE go further. (2) Distinguish earlier precedent – hybrid situation: only times 1A bars application of neutral principle is when FE is applied in conjunction with another constitutional protection (such as free speech or press). (3) Distinguish Sherbert – limited to denial of unemployment compensation context: (a) ??? shouldn‟t this case fall in unemployment compensation context?

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(b) This case is not in unemployment compensation field b/c this case is about exemption from criminal law. (4) Courting anarchy: to allow individual exemptions from criminal laws is courting anarchy. (5) Minority religions may be “at a relative disadvantage” but this is an “unavoidable consequence”. e) O’Connor’s concur: (1) No distinction b/w act and belief. (2) Rejects Scalia’s “hybrid” argument. (3) Her view of law: a neutral criminal law prohibiting conduct that a State may legitimately regulate is, if anything, more burdensome than a neutral civil statute placing legitimate conditions on the award of a state benefit. (4) Would keep Sherbert’s compelling interest test and would find no FE violation under that test. f) Blackmun’s dissent: (1) Agree with O‟Connor that compelling interest is proper test but find there is a FE violation. (2) Says majority opinion is complete overhaul of FE jurisprudence. (3) Analogy to sacramental use of wine during prohibition. (4) Analogy to Yoder. (5) Very worried about effect of this opinion on minority religions – discrimination – Court is more sympathetic to traditional Protestant rights. g) Comments: (1) Criminal v. Civil Laws: is application of general criminal law more or less burdensome – is there any distinction? (2) CA’s pre-smith Approach: 30 years b4 Smith, CA invalidated application of a CA criminal statute in cases in which peyote was used for religious purposes. The Post-Smith Era: a. Two Responses to Smith: 1) Ignored by State Courts: instead these courts continued to rely on Sherbert compelling interest test. 2) Federal RFRA – p254: a) Opponents of Smith lobbied Congress. b) Passed in 1993. c) Purpose was to overrule Smith and restore and codify compelling interest test from Sherbert. d) Will be struck down in City of Boerne. b. Cases: 1) What is a “generally neutral law” - Church of Lukumi Babalu Aye v. City of Hialeah (US 1993) – Kennedy - p256: a) Facts: city ordinance to prohibit animal slaughter – passed quickly. b) Held: FE violation. c) Reason: (1) Facially neutral but purpose was to target Santeria religion. (2) Apply compelling interest test b/c non-neutral law. d) Souter’s concur: says Court should always apply compelling interest whether or not law is neutral. e) Blackmun’s concur:

4.

17

2) City Of Boerne v. Flores (US 1996) – Kennedy - handout: a) Facts: historic preservation statute and RFRA. b) Held: RFRA is unconstitutional b/c not enacted properly under § 5 of 14A. c) Reason: (1) Congress does not have this power under § 5 of 14A. (2) Congress did not have any reason for enacting RFRA (no evidence of persecutions, etc.) other than overturn Smith – thus, no congruence. (3) ??? Isn‟t Court going back on its word to defer to legislature? d) Steven’s concur: RFRA violates ESTB CL. e) Scalia’s concur: f) O’Connor’s dissent: (1) Wants to overturn Smith. (2) Stare decisis: less vigorous in applying Constitution than in applying C/L. (a) Represents Court‟s present view of its role in constitutional decisionmaking. (b) May effect Bush‟s faith-based initiative act. g) Souter’s dissent: h) Breyer’s dissent: wants to reargue Smith.

C. THE COUTOURS OF ESTABLISHMENT CLAUSE JURISPRUDENCE: The Establishment Clause and Interest Group Litigation – Protestant, Catholic and Jewish Views: a. Generally: 1) Framer‟s Understanding of ESTB CL: a) Congress could not establish a national religion. b) Congress could not disestablish religions established by states. 2) Incorporation of ESTB CL created great difficulties. 3) Court goes from an agreed upon, common understanding of ESTB CL to utter chaos. 4) Key players: a) CJ Burger: ESTB CL jurisprudence changes with his mind. b) O‟Connor: c) Brennan: d) Kennedy: 3 Modes of Analysis: 1) Everson Test (developed in Marsh, Kiryas Joel and Everson): a) If particular acts intended to establish religion or have the effect of establishing religion, then they are unconstitutional. (1) ??? Even aid to all religion, as opposed to partisan aid. (2) Incidental benefits to religion are okay. (3) Legislation that singles out any particular religion, for benefit or detriment, gets strict scrutiny (Kiryas Joel). 2) Lemon Test – used primarily to crush laws: a) 3-prongs: (1) Statute must have secular legislative purpose:

1.

b.

18

(a) Courts are reluctant to attribute unconstitutional motives to States, particularly when a plausible secular purpose for the State‟s program may be discerned from the face of the statute.” (Meuller). (2) Its principle effect must be one that neither advances nor inhibits religion: (a) Does not fail b/c law allows religion to advance itself – there must be govt advancement of religion (Latter Day Saints v. Amos). (3) Statute must not foster excessive govt entanglement. b) Comments: much criticized test and rarely used but not yet discarded. 3) O‟Connor‟s Endorsement Test: a) Trend: this test will probably supplant the Lemon test. b) ??? Definition: whether a reasonable observer would view this conduct as an endorsement of religion. (1) Fact-intensive analysis. (2) Some endorsement is tolerated. (3) Much debate about who or what constitutes a “reasonable observer”. c) Objective and Subjective Prongs: (1) Objective: what is stated purpose? (2) Subjective: what will observers think is purpose? (3) Neutrality is okay; partisan rules are not (Kiryas Joel). c. Cases 1) Everson v. Board of Ed (US 1947) – Black – p258: a) Facts: state law reimburses parents for cost of sending children on buses to parochial school b) Held: no ESTB CL violation. c) Reason: (1) Use “Virginia gloss” but seems to wind up differently the TJ and Madison would. (2) Sets neutrality baseline: state cannot inhibit or endorse. (3) ESTB CL means: (a) State nor federal govt can set up a church; (b) Neither can pass laws which aid one religion, aid all religions or prefer one religion over another; (c) Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. d) Jackson’s dissent: (1) Attacks majority for fallacies and inconsistencies – (a) This is not at all what TJ meant by a wall. (b) Catholic school is cornerstone of inculcation to the Catholic religion – giving $ for buses, directly aids inculcation efforts. (2) This is one of the most influential opinions in later years as Court backs away from the holding. e) Rutledge’s dissent: wants a clear assessment. f) Other: (1) Case represents fullest articulation of Court’s ESBT CL jurisprudence. (2) Impact of this decision was huge – rallied many groups. (3) Showed highpoint of ESTB CL jurisprudence: all justices agreed on the first principles underlying the ESTB CL (all justices accept TJ‟s wall metaphor and fact that VA history is proper guide) but applied it different. 2) Illinois ex rel. McCollum v. Board of Ed. (US 1948) – Black – p283:

19

Facts: test case (set up by interest groups) - school property used to teach voluntary religious classes. b) Held: ESTB CL violation. c) Reason: breach of wall of separation. (1) Formulates “wall of separation” metaphor like Williams rather than TJ. d) FF’s concur: “good fences make good neighbors” - suggests released time may be OK. e) Jackson’s concur f) Reed’s Dissent: (1) Adopts different view of TJ and Madison: “serpentine walls” at UVA are better description - religion and govt have always been related in US history. (2) Plants seeds of our current ESTB CL jurisprudence: (a) points out pragmatic and intellectual difficulties with strict separationist position. a) 3) Zorach v. Clauson (US 1952) – Douglas – p290: a) Facts: released time program - school releases students to get religious instruction elsewhere. b) Held: no ESTB CL violation. c) Reason: (1) “We are a religious nation. . .” (2) No school, public prop, involved. (3) Govt needs to be neutral to religion – not hostile. (4) There can be accommodation within a standard of separation. d) Black’s dissent: wants to reaffirm McCollum. e) FF’s dissent: this will only bring divisiveness. f) Jackson’s dissent: adopts separationist position – worried about new factor (“irreligion”). g) Significance: (1) flip flop from McCollum. (2) This is beginning of sea change in ESTB CL jurisprudence. 4) Walz v. Tax Commission (US 1970) – CJ Burger - p295: a) Held: tax exemption is NOT a violation of ESTB CL. b) Reason: (1) Tax exemption v. subsidy: (a) Tax: passive act by state (constitutional) (b) Subsidy: direct act by state (unconstitutional): (2) Court trying to development NEW ESTB CL jurisprudence - case-by-case analysis. (3) Use history to justify – tax exempt is long standing traditional practice. c) Brennan’s concur: (1) Reject history as rationale but . . .: does not rely on history as rationale to uphold exemption – goes back to absence of any opposition from TJ and Madison. (2) Secular purpose behind tax exemption. d) Harlan: neutrality - will be reflected in Kennedy later – uses broad level of generality. e) Douglas’ dissent: f) Significance: (1) Categorical confidence of Court in ESTB CL is gone! 5) Lemon v. Kurtzman (US 1971) – CJ Burger - p300: a) Held: state statutes providing state aid to church-related elementary and secondary schools violates ESTB CL.

20

b) c) d) e) f)

Reason: Court rejects wall metaphor and sets out 3-part test. Douglas’ concur Brennan’s concur White’s concur/dissent: test creates collision course for 2 clauses. Significance: (1) Rather than rejecting this test, Court simply declines to apply it in certain contexts.

6) Marsh v. Chambers (US 1983) – CJ Burger – p309: a) Facts: b) Held: state payment of chaplain does not violate the ESTB CL. c) Reason: (1) Decline to apply Lemon test. (2) Relies on historical tradition. d) Brennan’s dissent: created divisiveness in state legislature. e) Stevens’ dissent f) Significance: (1) Bring whole new type of ESTB CL cases to Court b/c case-by-case analysis – no guiding principles. (2) Court uses history when history will allow it to keep old practices despite new interpretation of ESTB CL. 7) Lynch v. Donnelly (US 1984) – CJ Burger – p312: a) Held: creche display in private park did not violate ESTB CL. b) Reason: historical recognition of role of religion in American life. c) O’Connor’s concur: wants endorsement test. d) Brennan’s dissent: 8) County of Allegheny v. ACLU (US 1989) – Blackmun – plurality - p313: a) Held: strikes down creche display on govt prop but upholds general holiday display (Menorah, Christmas tree, etc) on govt prop. b) Reason: applies O‟Connor‟s test. (1) Creche is purely religious symbol. (2) Menorah part of overall holiday setting. c) O’Connor’s concur: use endorsement test to get same holding as plurality. d) Brennan’s concur/dissent: would find both violate ESTB CL. e) Stevens’ concur/dissent: f) Kennedy’s concur/dissent: find neither violate ESTB CL (1) Says majority is acting hostility toward religion. (2) Wants to add coercion requirement to Lemon test. (3) Influential opinion in later cases. (4) Note the exchange b/w majority and Kennedy – disagreement about what first principles underlying ESTB CL are. g) Significance: (1) Shows clear split/factions on Court as to standard of review for ESTB CL cases – dissolution of a coherent ESTB CL jurisprudence. (2) The law as to where and when govt can place religious symbols is largely unsettled. 9) Texas Monthly v. Bullock (US 1989) – Brennan – plurality – p339: a) Held: tax exemption for religious publications violates ESTB CL. b) Reason: violates first prong of Lemon. c) Scalia’s Dissent: d) Blackmun’s Concur:

21

e)

Significance: reconciles with Walz?

10) Jimmy Swaggart Ministries v. Board of Equal. Of CA (US 1990) – O‟Connor – p341: a) Held: sales tax on religious items not unconstitutional. 11) Kiryas Joel Village School District v. Grumet (US 1994) – Souter – p342: a) Held: creation of school district violates ESTB CL. b) Reason: (1) Does Court apply Lemon? (2) This is not a general law with an incidental benefit; instead, this is a statute intended to benefit a single religious group – NY fails neutrality c) Blackmun’s concur: wants to use Lemon. d) Stevens’ concur: e) O’Connor’s concur: attacks coercion and Lemon tests and advocates her test – wants an individualized approach. f) Kennedy’s concur: (1) Accommodation is okay but means to achieve accommodation here are unconstitutional - religious gerrymandering. g) Scalia’s dissent: (1) This is a general law with an incidental benefit: (a) Accommodation here is not based on religion but on culture. (b) Distinguish b/w church members and the church. (c) Article 6 argument: if Constitution accommodates religion than Court has to accommodate. (2) Attack Stevens as manifesto of secularism. (3) “ghoul in night” comment on Lemon from Lamb’s Chapel. h) Significance: (1) How is this any different than Yoder? (2) Case sets up cultural (not legal or philosophical) clash b/w members of Court. 12) Capitol Square Review and Advisory Bd. v. Pinette(US 1995) – Scalia – plurality – p362: a) Held: unattended display of a privately-owned cross in a public park during Christmas did not violate ESTB CL b) Reason: (1) Private religious speech is fully protected under 1A free speech. (2) Rejected application of O‟Connor‟s endorsement test to private religious speech c) O’Connor’s concur: (1) Elaborates who = “reasonable observer” (a) Informed member of community. (b) Aware of history and context of community and forum in which religious display appears. d) Souter’s concur e) Stevens’ dissent: attacks endorsement test as requiring an “ultra-reasonable observer” f) Ginsberg’s dissent 13) Rosenberg v. UVA (US 1995) – p364: a) Held: unconstitutional to deny state funds to religious magazine – content-based discrimination in violate of free Speech Clause. b) O’Connor’s concur: c) Thomas’ concur d) Souter’s dissent e) Significance: balance of power in ESTB CL lies with O‟Connor.

22

Chapter 6: Religion in the Classroom

A. INTRO:

23



Impact of Religious Education: “Train up a child in the way he should go, and when he is old he will not depart from it.” Education is NEVER neutral: a. It is ideological, formative – schools are forum for inculcating values or citizenship and morality. b. Schools are means by which we transmit our values – thus, everyone has a large stake in making sure values are transmitted correctly. c. Big debate over whose values are translated and how they are translated. Themes: a. Use of Virginia Experience and History 1) Justices selectively use whatever part of VA Experience further their cause – support for all views. b. Distinction b/w “religious” and “secular” Three interests: a. Parents: 1) Obligation to education their children; 2) Interest in raising them in the tenets of their faith or system of belief. b. Child’s: 1) Need to be educated and socialized as a member of a larger social, economic, moral and political community; 2) Right (as young adult) to make educational choices consistent with his needs and aspirations. c. State’s: 1) Interest in health, safety, welfare of children; 2) Interest in preservation and integrity of family; 3) Preservation of a common culture, language and political tradition (make good citizens). Characterization – Selecting an Appropriate Level of Generality and Mode of Interpretation: a. FE Issues: 1) FE allows parents to send children to private religious schools – Meyers, Pierce (using Sherbert test). 2) FE does not allow a school to circumvent legitimate regulation of school activities – Douglas in Sherbert. ESTB CL Issues: 1) Student Participation: a) State‟s argument that students have the ability to dissent from school prayer (for example) does not provide a defense to an ESTB CL claim. b) There is a special duty to protect elementary school children from the subtle coercive effects of religion - Lee. c) ??? Test: could a reasonable dissenter believe that the exercise signified her participation or approval of a religious action - Lee. 2) Teacher Action: a) School and legislature can force strict neutrality in dress – Cooper. b) Incompatibility Test: while govt cannot outright prohibit expression, it can be incompatible with a professional role – Cooper. 3) Released time – see below. Also E/P, Free Speech and Family Law Issues:







1.

b.

c.

24

2.

Differentiating State and Federal Roles: a. Public education is creature of state – thus, reflects identity, history and priorities of each state. Courts generally give great discretion to state boards of ed. No national interest in education BUT . . . 1) Federal govt using funding hook to show its interest. See questions – p371.

b. c.

d.

B. RELATIONSHIP OF RELIGION TO PUBLIC AND PRIVATE EDUCATION: Nature of Education: a. b. Inherently value-laden process. 2 functions of schools: 1) Formation/development of individual 2) Transmit ideas/values. Key Problem: how do we have non-religious schools and yet still use the schools to impart values? Stone v. Graham (US 1980) – Per Curiam – p376: 1) Facts: KY statute required 10 commandments in each public classroom. 2) Held: violates ESTB CL 3) Reason: non-secular purpose – strict separationist approach. 4) Rehnquist‟s dissent: a) Accomodationist. b) These are basis for all our secular legal codes. c) Document as a whole has secular impact. d) You cannot take religion out of modern society/culture. 5) Significance: a) Resulted in effort to remove all reference to religion in public schools.

1.

c.

d.

2.

What Are the State’s Interests in Education? a. State’s Interest: 1) To furnish citizens with knowledge needed to pursue happiness. 2) Preparation of individuals as citizens. 3) Inculcate fundamental values necessary to the maintenance of a democratic political system. 4) Promote traditional values.

C. QUESTIONS OF CONTROL:

25

1.

Who Controls Education? a. State Law Issues: 1) Three types of Authority: a) Natural right of parents to control custody, education and upbringing of children. b) Powers vested in state by constitutions and compulsory education laws. c) Powers conferred on federal govt by US Constitution. 2) Parents rights are important but NOT CONTROLLING – state‟s interests preempt parents interests. b. Federal Authority Over State Education Policy: 1) Source of federal govt‟s power: a) Powers of Congress under Article I b) Power of judicial branch to interpret and force laws. 2) Conflict b/c state and federal interests sometimes arise. 3) Federal role is a limited one in state education. 4) Court has extended federal govt‟s in public education. 5) Big Issues = curriculum content and school finance. The Rights of Parents and Children in American Constitutional Law: a. General Approach: state has broad discretion and power in public education but has to guard against unreasonable interference with parents and child‟s interests. Meyer v. Neb (US 1923) – McReynolds – p390: 1) Facts: (prior to incorporation of 1A). Teacher violated state statute by teach German in private school. 2) Held: parents and teacher win – state loses. 3) Reason: a) State has strong interest (in homogenous people ready to be citizens) but means chosen here exceed state‟s power. b) Court says parents have a substantive due process liberty interest. c) Court does not decide 1A issues but today, this decision would probably based on FE, Free Speech and E/P. Pierce v. Society of Sisters (US 1925) – McReynolds – p395: 1) Held: Court struck down compulsory public school attendance law. 2) Reason: a) Court incorporates FE against states. b) State has very broad power in deciding educational issues BUT state must guard against unreasonable interference with parental liberties. c) Interests in parent‟s interests recede as child matures.

2.

b.

c.

26

D. “OPTING-IN” V. “OPTING-OUT”: THE SUBSTANTIVE IMPLICATIONS OF MEYER, PIERCE, AND YODER: 1. The Requirement that the States Maintain a “Uniform” System of Public Education: a. b. Parents have a limited right to opt-out of the public education system. State has right to determine at a minimum what is required at private and parochial schools.

2.

Opting-Out – Regulating Church-Based Education – Reconsidering the Concept of Absolute Separation: a. 2 Basic Mechanisms for State to Regulate Non-Public Schools: 1) Certification and regulation of non-public schools. 2) Compulsory ed laws. Principles for When Parents and Children’s Rights Give Way to State: 1) Reg will trump parents‟ right to educate children as they wish if state reg is reasonable and not arbitrary. 2) If your child is going to function in wider society (unlike Amish in Yoder), then wider society has direct interest in regulating schools (and state‟s interest will often trump parents). Cases: 1) Neb v. Faith Baptist Church (Neb. 1981) – p407: a) Facts: state AG sued school b/c not comply with state regs. b) Held: state‟s interest trumps. c) Rule: reg will trump parents‟ right to educate children as they wish if state reg is reasonable and not arbitrary. d) Krivosha’s dissent: (1) Does not think state‟s interest trumps – degree not that important.

b.

c.

3.

Regulating Church-Related Schools: a. b. Immunity from Regulation: Selecting an Appropriate Level of Generality: 1) When Are the State‟s Interests “Compelling”? a) Minimum standards apply to non-public schools. b) Exquisite balancing of interests. c) Trend now is to give greater freedom to non-public education methods (e.g., home-schooling). 2) Which Parental Interests Are Protected? a) Submission to State Authority Generally:

b) Teacher Certification:

27

c)

Standardized Testing:

d) Health and Safety Requirements: e) Penalties for Noncompliance:

4.

Opting-In – The State as Educator: a. Controlling the Content of Education: 1) Curriculum and Access to Info: a) Private schools: govt attempts to regulate anything beyond time, place and manner of private education will be subject to strict scrutiny.

b) Rules on State’s Ability to Control Curriculum in Public schools: (1) School boards have broad discretionary power but that power can be trumped by 1A. (2) Board cannot restrict the spectrum of available knowledge within the realm of voluntary inquiry – Island Trees (US 1982) – Brennan – p424. (3) Power cannot be used in narrowly partisan or political manner Island Trees. c) Island Trees (US 1982) – Brennan – p424: (1) Facts: local school sought to remove “inappropriate” books from library on religious grounds. (2) Held: school board‟s decision must conform to 1A – FF violation here. (3) Reason: (a) Students have 1A rights to books. (b) Library/Classroom: once books are acquired, no discretion on part of school board – students have more rights in library than in classroom. (c) Underlying distrust of religious parents. (4) Blackmun’s concur/dissent: wants to narrow holding. (5) CJ Burger’s dissent: school is tool for inculcation and school boards have broad authority to inculcate. (6) Powell’s dissent: school authorities more competent than judges to make these decisions – KEY THEME = JUDICIAL COMPETENCE.

b.

Creating a Religiously “Neutral” Educational Setting – Public Schools: 1) Religious Devotions and Ritual: a) General Principle: (1) Non-compulsory rituals that have primary purpose and effect of endorsing religion violate the ESTB CL. (2) Federal courts can overturn local school board decisions about content.

b) 3 rationales developed in cases for why ESTB CL might require abandonment of religious devotions and rituals as part of official school day: (1) Coercion of dissenting students. (2) Breach of neutrality required in public schools, even if no coercion is present. (3) Such practices constitute tangible support for religion or religious education. (4) Compare to Sherman (p439) - state has right to promote its values.

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c)

Legislative Response to Cases = Equal Access Act (1) Now there is movement to reintroduce religion in public schools.

d) Big question = how far will Court’s holding in Santa Fe go? e) Case – Schempp (US 1963) – Clark – p429: (1) Facts: P challenge daily ritual of reading Bible (no compulsion, parental exemption). (2) Held: daily ritual struck down b/c violates the ESTB CL. (3) Reason: (a) Look at primary purpose and effect of daily ritual – they are to endorse religion. (4) Stewart’s dissent: (a) Talks about irony of Court‟s interpretation of ESTB CL – p423. (b) No ESTB CL violation – have to have coercion. (c) Majority‟s opinion and interpretation of ESTB CL violates FE of parents and students. (5) Significance: (a) Shows that Court exerts control over state schools. (b) Federal courts can overturn local school board decisions (made by educators) about content. Case - Lee v. Weisman (US 1992) – Kennedy – p435: (1) Facts: invocation at graduation. (2) Held: violates ESTB CL. (3) Reason: (a) B/c this ritual is coercive. (b) Look at psychological impact of ritual on objector – adolescents are especially susceptible. (4) Blackmun’s concur: strict separationist view (5) Souter’s concur (6) Scalia’s dissent: (a) Says this is a tradition. (b) Attack‟s use of social science data. (7) Significance: (a) Adds new factor to ESTB CL analysis – coercion. (b) Changes Court‟s argument from what about history to one about social science data. (c) What about a moment of silence.

f)

2) Access to Religious Materials and Info: a) General Principle: Public officials have broad discretion to control educational environmental and content of materials available for student use.

3) Limiting Religious Influences in the School and Classroom Setting: a) General Principle: FE claims of teachers and staff members must yield in the controlled environmental of public education (“if incompatible with teaching function”). (1) What about more extreme examples of religious garb – when a central tenet of religion – open question.

b) Case - Cooper v. Eugene School Dist. (Or. 1986) appeal dismissed (US 1987): (1) Held: upheld state statute (forbidding religious dress of teachers). (2) Reason:

29

(a) Even though one of statute‟s original purposes is religious (to prevent nuns from wearing habits), its overall purpose is secular – to ?? (b) This law does not discriminate against one religion but against ALL religions – thus, it is constitutional. (c) Religious garb is religious ACT, not religious belief. (d) Why didn‟t court do a FE analysis here?

E. DUAL ENROLLMENT PROGRAMS: Religious Training for Students Enrolled in Public Schools – Off Premises “Released Time” Programs: a. Generally: 1) Early Court struck down “on premises” religious instruction but upheld “released time” programs. 2) Key Question: To what extent should cooperation b/w religious school/Church and state (public schools) be permitted? General Principles 1) Schools are allowed some action to reduce entanglement. 2) When examining classes for credit, no religious test permitted; classes must be examined in purely secular terms - Lanner. Case – Lanner v. Wimmer (10th Cir. 1981) – p453: 1) Facts: Mormon building next to school – use for released time program. 2) Held: giving students substantive credit for religious education violates ESTB CL – giving custodial credit would not. 3) Significance: a) Shows extent to which courts will contort the Religious Clauses to accommodate the public when they want religion in schools.

1.

b.

c.

2.

Sharing the Cost and Responsibility for Providing Nonreligious Education Services for Students Enrolled in Private Schools:
 

Recurring Issue. Rationale for state financial aid – legislative intent was to benefit child, not the religious school. Public School Training for Students Enrolled in Private Schools – “Shared Time” on Public School Premises: 1) General Principles: a) Definition: either send public school teachers in to religious schools to teach nonreligion subjects or send religious school children to public school. b) ??? Most courts force school boards to take an “all or nothing approach” – Thomas v. Allegheny Count Bd of Ed (Md App Ct 1982) – p464. (1) Once child exercises constitutional right to go to private religious school, he cannot receive the benefits of public school education. c) Under child theory, this seems constitutional but under other theories, seems to violate ESTB CL.

a.

30

b.

Sharing the Cost and Responsibility for Providing Secular Educational Services “Shared Time” on the Premises of Religious Schools. 1) Modern Court‟s Approach: a) Pre Agostini: (1) Most of court thought these programs showed excessive entanglement in violation of ESTB CL. (2) Rehnquist and Burger: (a) Federal funds can be expended for secular purpose even if in religious schools. (b) So called neutrality here is in fact HOSTILITY. b) Post Agostini: Rehnquist approach now in majority. (1) Some degree of entanglement okay – entanglement must be excessive to violate ESTB CL: (a) 3 criteria to determine if govt aid has effect of advancing religion: i. Does aid result in govt indoctrination? ii. Does aid define its recipients by reference to religion? iii. Does aid create excessive entanglement? 2) Impact of Title VII: 3) Case – Aguilard: 4) Case - Ball: 5) Case- Agostini (US 1997) – O‟Connor - handout: a) Facts: b) Held: upholds religious program. c) Reason: (1) Recent cases undermine assumptions upon with Aguilard and Ball relied: (a) Assumptions: i. Any public EE who works on premises of religious school is presumed to inculcate religion; ii. Presence of public EEs on private school premises creates a symbolic union b/w church and state; iii. Any and all public aid that directly aids educational function of religious schools impermissible finances religious indoctrination, even if aid reaches schools as a consequence of private decisionmaking. iv. That state‟s program necessitated govt entanglement with religion b/c public EEs who teach on premises of religious schools must be closely monitored to ensure they do not inculcate religion. (b) Zobrest rejects notion of inculcation. (c) Witters said direct aid okay (d) Premises v. off-premises not a sensible distinction. (2) Some degree of entanglement okay – entanglement must be excessive to violate ESTB CL: (a) 3 criteria to determine if govt aid has effect of advancing religion: i. Does aid result in govt indoctrination? ii. Does aid define its recipients by reference to religion? iii. Does aid create excessive entanglement? d) Significance:

31

(1) Overturns Aguilar and Ball. (2) Court’s candor about lack of importance of stare decisis invites further cases.

F.

FINANCING EDUCATION OPTIONS: Public Financing and Religious Schools – the View of the Court – 1968-1980: a. b. c. Legal and Historical Background:

1.

Everson v. Bd of Ed – The Court “Federalizes” the Issue of Public School Finance:
Taxpayer Standing – Articulating a Basis for Finding a Constitutionally Cognizable Interest: 1) Who has standing is very important issue. a) Generally, tax payer as tax payer generally NOT have standing. b) Flast v. Cohen (US 1968) - 2-part logical nexus test for religion: (1) Taxpayer must establish a logical link b/w that status and the type of legislative enactment attacked; AND (2) Taxpayer must establish a nexus b/w that status and the precise nature of the constitutional infringement alleged. 2) Application: Court has refused to find standing under Flast test in controversies other than those challenging spending powers under ESTB CL.

d.

The Court on Aid to Religious Schools – 1968-1980: 1) Themes: a) Themes: (1) Education plays important role in life of community. (2) Character of education as parental responsibility subject to control and oversight by state authorities. (3) The impressionability and youth of children (at least through secondary school) which makes them particularly susceptible to indoctrination. (4) Political importance of the “common school” experience in training future citizens in a pluralistic democracy. (5) View that church authorities are making authority claims concerning the role of religion in education which are fundamentally at odds with those made by state education authorities. (6) View that deviation from the common school model will lead to political divisiveness along religious lines. (7) *** View that “neutrality” in education is at best, an aspiration, and, at worst, inconsistent with the very concept of liberal education. (8) A difference of view concerning federal oversight role in matters of educational funding and philosophy, whether exercised on behalf of parents and children, or in favor of dissenting taxpayers who do not wish to see their tax dollars spent for education which is not subject to the control of the community. 2) 2 Approaches taken by Court to School Aid: a) Accommodationist-Neutrality View:

32

(1) 1A requires state remain neutral b/w and among religions and b/w and among secular points of view concerning the role of religion (2) Will permit state to allocate educational benefits to all students, regardless of school of enrollment, as long as the assistance is provided in religiously-neutral public benefits program. (3) Formal neutrality in the distribution of benefits. b) Strict Separation’s View (is this proper label?): (1) ESTB CL was intended to eliminate any form or vestige of official govt support for religion and to eliminate possibility that body politic will be divided among religious lines. (2) Public schools should provide religiously-neutral education setting. (3) If parents and children want to take advantage of publicly-funded educational opps, they must do so in public schools. (4) Views education as state function (5) Federalizes a set of philosophical norms concerning role of religion, religious training and religious ritual in the education of primary and secondary school children.

2.

The Place of Religion in the Schools – 1995: a. b. See chart – p479. Remarks by Clinton – reread – p478.

3.

School Choice – Privatization and the Quest for Family Control of Education: a. Currently only two options BUT that may change with “school choice” programs.

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Chapter 7: The Structure, Management & Property of Churches and Religious Organizations

A. INTRO: 1. 2. 3. Key Issue: to what degree can govt inquire into the religious beliefs of a corp? Organizational procedure/requirement statutes must pass FE claims. Why do religious orgs choose civil law corp form: a. Take advantage of benefits available to corps under tax and other regulatory provisions of state and federal law. b. Limited liability c. To own and control prop in name of corp All Churches must submit themselves to not-for-profit status to gain special benefits

4.

B. ORGANZIATIONAL TYPES: C/L Forms: a. b. The Territorial Parish: The C/L Corporation Sole:

1.

2.

Statutory Organization Forms: a. Nonprofit Corporation Law – An Overview: 1) Application of general principles of non-profit or business corp law to religious orgs can be problematic. 2) Types of Church Management Under the Revised Model Nonprofit Corp Act: a) Mutual benefit association b) Public benefit not-for-profit corp

34

c) b.

Religious benefit corp

The Charter Form: 1) Definition: corp formed by direct grant of authority from state. 2) Rule: in order to grant a charter, purpose of corp must be lawful and not injurious to public – very low standard. 3) Example – Application for Charter of the Conversion Center, Inc. (Pa. 1957) – p493: a) Held: charter is approved b/c it is sufficient that purposes of charter were not unlawful or injurious to public – very low standard. b) Reason: court cannot inquire into purpose of conversion c) Dissent: court should not grant charter b/c looks like govt (via the court) is authorizing a corp to interfere with a person‟s choice of religion. d) Significance: to what extent should state be supervising day-to-day business of a religious org or the reasons for which the org was formed.

c. d. e. f.

Trustee Corp: trustees hold the assets of an unincorporated association. Membership Corp: democratic voting system – interests of members are interests of corp. Corporations Sole: hierarchical (e.g., RCC). Unincorporated Associations: tailored to needs of Methodist church.

C. RESOLVING DISPUTES WITHIN AND AMONG RELIGIOUS GROUPS:


3 possible ways to resolve: 1) Implied Trust Theory/Lord Elton‟s Rule/Departure from Doctrine Rule: resolve the doctrinal questions presented and apply the conclusions in a manner which resolves the case: a) Problem: who is to be judge of who is departing from religious doctrine. 2) “Neutral Principles of Law”: avoid those questions by applying whatever legal principles that appear to govern the case had it arisen in a non-religious setting. 3) Deference: defer to the appropriate church authorities to resolve the controversy. a) Only possible when court can find that the case is truly governed by the internal or doctrinal law of the religious org and there are church authorities to handle the case. b) Parties must seek remedies within structures of their church.

1.

The Search for Judicially Manageable Standards: a. The “Neutral Principles” Approach: 1) Definition: way to examine relation b/w factions in a church: a) Application: (1) Use it as a restrictive evidence rule (not to examine religious practice and doctrine): (a) Is prop titled to local church held in trust for general church org (with which local church is affiliated)? i. If yes, control is by general church. ii. If no, control is by local congregation.

35

(2) Presumptive Rule for Local Schism: if control is with local congregation and there is a schism in local congregation, then: (a) Look for evidence that identity of local church is to be determined by some means other than majority rule. (b) Otherwise, majority rules. 2) Problems in Use: a) Requires that civil courts examine religious documents in secular terms b) If there is ambiguity in the doc, court will probably defer to church body. 3) Rules a) Under 1A, courts cannot use religious doctrine and practice to resolve the dispute – Jones. b) Court may defer judgment to ruling of a decision-making body of a hierarchical church – Jones and Watson. 4) Cases: a) Jones v. Wolf (US 1979) – Blackmun – p500: (1) Held: Court uses neutral principles approach to resolve church prop dispute. (2) Powell’s dissent: (a) Requirement that courts interpret religious docs without regard to their religious content is inconsistent with religious liberty principles. i. Religious docs will lose their true meaning if read in secular manner: a different meaning when sent through a secular filter. (b) Civil courts should not be involved in church disputes. (c) Wants to go back to Watson v. Jones‟ approach. (3) Significance: (a) Case constitutionalized the neutral principles of law approach. (b) Every church went to an atty to see how to protect themselves from this doctrine. (c) Court has not since granted cert on any church dispute case.

b.

What Qualifies as a “Neutral Principle” of Law?


3 Types of Prop Disputes Based on Church Structure - Watson v. Jones (US 1871) – p507: a) Prop has been deeded/donated: look to donors‟ intent. b) Congregation is independent: look to congregation‟s judgement if no higher authority. c) Congregation is subordinate member of general church org: superior tribunals have authority.

1) [Lord Elton‟s Rule] Implied Trust Theory – Does 1A Prohibit Civil Courts from Making Findings Concerning “Religious Facts”? 2) Abstention and Deference to Church Hierarchy – Significance of Church Structure: a) Mandatory Deference – Congregational Churches: (1) Civil courts must defer to decisions of ecclesiastical bodies in congregational and hierarchical churches. (2) Church structure (whether hierarchical or congregational) is relevant to determine the appropriate religious decision-maker. b) Mandatory Deference to Church Authority – Hierarchical Churches:

36

3) Reconsidering the “Neutral Principles Method”: Ordinary Civil Liability – Utilizing 1A as a Defense to Liability in Tort or Contract: a. Nature of Interests Involved in Tort Litigation: 1) Legal interests of tort P 2) 1A interests of religious org 3) Regulatory interests of state b. Defining the Relationships in Tort Cases: 1) Problems with holding Priests liable for malpractice: a) No standard. b) Violate priest-penitent privilege. c) Court will have to decide questions of religious doctrine. 2) Requirements for Breach of Fiduciary Duty Claim: a) Fiduciary relationship b) Assumption of duty to act in best interests of another. c) Breach of duty. c. Ascending Liability: 1) Charitable Immunity: a) Definition: shielded religious orgs from liability for damages under general tort principles.

2.

b) Current Approach: no longer safe for religious orgs to assume they are protected from suit simply b/c of their status. c) Religious Orgs in Commercial Enterprises: (1) Generally, once religious org steps into commercial activities, they cannot use 1A – church should be accountable for secular activities they engage in. 2) A Note on Liability Theories: a) Respondent Superior: (1) Analysis under Respondeat Superior: (a) Is church hierarchical or congregational – look to totality of circumstances: (b) Examine relationship of lower entity to higher entity – totality of circumstances: i. Does it hold itself out as an agent? ii. Does it agree to be ruled by superior? b) Seeking the “Deep Pocket” – Ascending Liability: (1) General Rules: (a) Generally, priest is not an EE for purposes or RS:

37

BUT if priests acts are within their regular parish duties, church org may be liable but rare. (b) General rule against clergy malpractice suits (c) No absolute immunity from tort liability: i. Religious org will rarely be held responsible for clergypersons‟ actions BUT . . . Religion Clauses do not prohibit application of a secular standard to secular conduct that is tortious – Moses. ii. Liability can attach for:  Breach of fiduciary duty  Negligent hiring and supervision. i. (2) Moses v. Diocese of Colorado (Col. 1993) – p527: (a) Facts: P sought counseling from priest, then had sex. (b) Held: religious orgs can be sued for breach of fiduciary duty (distinguished from clergy malpractice) – could also be found liable for negligent hiring. (c) Reason: very fact specific holding.

D. ZONING AND HISTORIC PRESERVATION: 1. Zoning and Land Use Planning: a. Interests Involved: 1) State‟s right to zone. 2) Interest of church in keeping structure as expression of religion inspiration. Rules: 1) FE CL: a) Generally applicable zoning ordinance with rationally purpose will usually be upheld - Seward. b) An outright ban on changes to any religious building/school is probably unconstitutional. 2) ESTB CL: zoning ordinances with secular purpose that incidentally benefit religion will be upheld - Cohen. Cases – compare the facts and the different outcomes: 1) Seward Chapel (Alaska 1982) – p537: a) Facts: church wants to use church prop for purpose prohibited under zoning org – FE claim. b) Held: zoning ordinance valid b/c = generally applicable statute that was rationally based. c) Reason: (1) Could have been problematic if ordinance had not been narrowly construed. (2) Usually falls under a time, place and manner restriction. (3) Fact specific holding. 2) Cohen v. City of Des Plains (7th Cir. 1993) – p541: a) Facts: secular individual objects to a benefit to churches in zoning code under E/P and ESTB CL. b) Held: zoning ordinance exemption is valid. c) Reason- apply Lemon: (1) Zoning exemptions do not advance religion: analogous to tax exemptions do not advance religion.

b.

c.

38

(2) Secular purpose behind the statute (a) Minimize government interference with the decision-making process of a religious org = legitimate govt interest. (b) Interesting purpose b/c seems to deal with religion but court says it is non-religious purpose) (3) Very important proviso: church must run their day care centers on a nonprofit basis. (a) Rationale: if allow exemption for for-profit day care, a substantial benefit is given to religious orgs. (4) Court creates distinction b/w church’s non-profit and commercial activities. (5) Distinguish from Bullock: (a) Provision of childcare coheres with religious mission of most churches – thus FE protection. (b) Exemption does NOT require than general populace subsidize religious orgs. Historic Preservation: a. General Rules: 1) When a church accepts designation as a historical landmark and seeks an exemption for an adjunct building to conduct commercial business, and the designation does not reduce the value of the church‟s principle asset, as denial is possible. 2) Apply Sherbert if a law is not neutral nor generally applicable or if it is “hybrid”: designation provides financial and regulatory burden on FE, no compelling interest, law cannot stand. b. Cases 1) First Covenant v. City of Seattle (Wash. 1992) – p548: a) Facts: collision of two major interests. (1) Interests in preserve historic buildings. (2) Interests of church b) Held: ordinance forbidding changes in church violates 1A. c) Reason: (1) Court characterizes the case as a FE case rather than takings cases. (2) Get around Smith by characterize as a “hybrid” (free speech [relationship b/w architectural design and theological doctrine] and FE) and try to limit to criminal laws. (3) Distinguish Bartholomew case (4) Apply Sherbert compelling interest test. (a) Burden b/c have to get approval and reduce prop value – outlines shows problems with ordinance‟s language. (b) No compelling interest. (5) Independent grounds for decision in Washington state constitution.

2.

E. BANKRUPCY, RECEIVERSHIP & OTHER FORMS OF FISCAL OR ORGANIZATIONAL OVERSIGHT: 1. Bankruptcy: a. Common Scenario:

39

1) Federal appointee will have to get involved in internal religious affairs. 2) Tithing. b. General Rules: 1) Federal Bankruptcy: a) Courts try to keep appointee from getting too entangled in the internal religious affairs of a religious organization during bankruptcy plan. 2) Can Tithing Be Part of Bankruptcy Plan: a) Tithing will be part of bankruptcy plan if: (1) It is regular part of church‟s requirements; AND (2) It has been a regular practice of the individual. b) If tithing is voluntary, not part of bankruptcy plan.

F.

OPERATIONAL OVERSIGHT BY THE ATTY GENERAL: 1. Generally: a. Have to parse religious and secular functions of church. b. As we become more pluralistic, the old paradigm for understanding religious orgs has to change. c. Compare to non-religious corps: AG has wide scope in get docs from other corps – this will not transfer to religious corps. 1) Rationale: costs issues for religious orgs. d. Hierarchy test: whether or not religion is controlled in many or all aspects by a superior church org. e. How can govt protect citizens from fraud practices of religious orgs? AG can: a. Test a non-profit corp (such as a church) to see if its purposes comport with the listed purposes in the articles of incorporation. b. State can require that notice be given to AG when church wants to sell real prop – this is constitutional under Lemon. c. Protecting members of religious corps by “safeguarding” proceeds from sale of real prop = compelling state interest. AG s cannot: a. Statutes which grant complete discretion to AG to investigate corps are unconstitutional. Courts have found churches NOT to be “charitable trusts” b/c they are not organized for a “civic or public purpose”

2.

3.

4.

Chapter 8: Religion in the Workplace

40

A. INTRO: 1. 2. Workplace is a specialized community. Three types.

B. THE LAW OF WORKPLACE RELATIONSHIPS: 1. Different Views on Place of Workplace in Individuals’ Lives: a. Work is integral part of our humanity and our intelligence. b. Relationship to work is pervasive part of life. Labor is Vital to US Economy – thus, govt has strong interest in regulating workplace. Laws reflect a series of judgments concerning the balance to be struck b/w and among: a. Economic efficiency b. Interests of capital and labor c. Rights of individuals to be judged on their work-related merits.

2. 3.

C. TERMINOLOGY: 1. 2. Labor Law v. Employment Discrimination. 2 ways in which job-related religious issues manifest themselves: a. Representation: discrimination in hiring, promotion or condition of employment based on religion. 1) Inquiry is whether race, religion or another legally irrelevant characteristic serves as a barrier to representation in the workplace. b. Accommodation: to what extent must an ER accommodate an EE‟s religious beliefs and practices.

D. AN OVERVIEW OF STATUTORY AND CONSTITUTIONAL RULES PROHIBITING RELIGIOUS DISCRIMINATION IN EMPLOYMENT: 1. Constitutional Rules Prohibiting Workplace Discrimination:


2 Kinds of Claims: 1) Jurisdictional: challenges to right of govt to regulate. 2) Operational: deal specifically with the legality of certain workplace behaviors. Key questions – see attached sheet: Constitution will serve as basis for workplace claims in three instances: 1) Govt = ER 2) Govt = provider of employment related social services (e.g., unemployment compensation). 3) Govt = regulator of workplace relationships in private sector. Govt Workplace: 1) General Rules

 

a.

41

a) No religious tests. b) Accommodation claims are most common. 2) Sources of Law – Constitution: a) Article VI, Clause 3 – Religious Test b) 5A c) 1A d) Executive Order 11478 (mandating equal opp in executive agencies). b. The Private Workplace: 1) General Rules: a) Balance legitimate needs of labor market and individuals religious liberty. 2) Sources of Law: Title VII c. The Court on Religious Liberty in the Workplace: 1) Sunday Closing Laws are valid b/c they have a secular purpose: a) Braunfield v. Brown (US 1961) – CJ Warren – p587: (1) Held: upheld Sunday closing law. (2) Reason: (a) Although statute based on religious observation, it has evolved to be based on socially neutral fact that there should be a day of rest. (b) Belief/act distinction. (c) Conflict by choice: conflict b/w individual‟s religious acts and public interest is by choice of P here. (3) Brennan’s dissent: Court made convenience a constitutional principle. (4) Stevens’ dissent: cruel choice.

b) Estate of Thorton v. Caldor, Inc. (US 1985) – CJ Burger – p592: (1) Held: statute – allowing each EE to chose his own Sabbath as a day off – violates ESTB CL b/c fails Lemon (e.g., seeks to advance religion in violation; causes entanglement). (2) Reason: Court looks at effect of statute but in standard E/P analysis have to look at intent not effect. (3) O’Connor’s concur: wants to ensure that Title VII is still good law. (4) Rehnquist’s dissent. Title VII of Civil Rights Act of 1964 – Equal Employment Opportunity:


2.

Generally: 1) Vocabulary of prohibition. 2) State statutes emulate. See Table 8-1. Mandatory v. Negotiated Accommodation? Congress’ BROAD Definition of Religion: “the term „religion‟ includes all aspects of religious observance and practice, as well as belief, unless an ER demonstrates that he is unable to reasonably accommodate to an EE‟s or prospective EE‟s religious observance or practice without undue hardship on the conduct of the EE‟s business” - p598. Representation Cases:

 

a.

42

1) Problem now is covert discrimination. 2) Difficult to bring Title VII case for religion b/c govt does not collect statistical data (which is usually key to proving claim) on religious characteristics of workforce. b. [No Discriminatory Intent Requirement – Only] Disparate Impact: 1) Title VII does not require INTENT to discriminate – instead, focus on effect (this is why statistical data is so helpful). c. Hostile Work Environment: 1) Requirement to bring claim under Title VII: derogatory comments are not enough – a) Words or acts that form basis of complaint have to be highly offensive, continuous or made by supervisors. The NLRA: a. Broad application – “religious ER must be shown to be engaged in commerce” under the Act.

3.

E. THE RELIGIOUS WORKPLACE: 1. Jurisdictional Issues: a. Developing a Theory of Abstention: 1) Generally: a) NLRA is very troubling in application. b) Govt reg of religious ERs is limited by (1) Federal religion clauses; (2) By terms of federal reg statutes; AND (3) State constitutional and statutory provisions. 2) Rules: a) 2-step analysis to determine jurisdiction: (1) Does exercise of Board‟s power present significant risk that 1A will be infringed? (2) If risk exists, did Congress express an affirmative intent to regulate the activities in question? 3) Cases: (1) NLRB v. Catholic Bishop (US 1979) – CJ Burger – p602: (a) Held: NLRA not cover religious schools. (b) Reason i. Characterization of case lets Court avoids 1A issue – rely on lack of any clear congressional intent that NLRA was to reach teachers in church schools. ii. Religious schools = religious workplace.

43

iii. Church-teacher relationship in church school differs from ER-EE relationship in non-religious schools iv. Court worried about religious beliefs, educational values and social mores being in conflict – employment K could influence curriculum (c) Brennan’s dissent: thinks NLRA applies to ALL ERs. b. . Developments Since NLRB v. Catholic Bishop – Labor Cases: 1) General Rules: a) Most courts follow Catholic Bishop and hold that NLRA may not be applied to bargaining situations involving teachers in religious secondary schools unless they are clearly covered by the Act. b) BUT have limited holding to facts – thus NLRA applies to: (1) Religious colleges and universities (split of opinion on this). (2) Non-teachers and non-religious persons in religious schools. (3) Teachers in some cases in religious schools. (4) Religious hospitals and nursing homes. (5) State labor authorities may exercise jurisdiction over secondary schools. c) Later cases permit NLRB and state labor agencies to exercise jurisdiction in three settings: (1) Where situation presents no significant risk to 1A. (2) Where state labor boards assert jurisdiction. (3) Where a “clear expression” of congressional intent to regulate the affairs of religious orgs is found. 2) Rationale: if you prohibit the federal govt from aiding a religious school then it is very difficult to allow federal govt to regulate that same school. 3) Application a) Fact intensive inquires b) Effect of Smith. c. Applications of Catholic Bishop of Chicago in Labor Settings Outside Collective Bargaining Context: 1) Fair Labor Standards Act: a) Rule: FLSA applies to EEs engaged in the commercial activities of a religious foundation, regardless of whether those EEs consider themselves EEs. b) Cases: (1) Alamo v. Sec of Labor (US 1985) : (a) Facts: associates do not receive wages. (b) Held: FLSA does apply and there is no FE violation b/c “wages” (broad definition) are being paid here. (c) Significance: shows tension b/w legitimate charitable purpose and legitimate govt regulation of workplace. 2) Jurisdiction Under Title VII of Civil Rights Act of 1964: a) Jurisdictional Claims: (1) Rule: (a) require courts to stay out of church-minister affairs (b) Not extended to any individual not reasonably viewed as a minister. b) Exemption Claims: (1) Rule: schools may dismiss EEs for conduct inconsistent with religious belief. (2) Little v. Wuerzel (3d Cir. 1991) – p621: (a) Held: upheld dismissal (of teacher who violated religion by remarrying).

44

2.

Identifying the Religious ER: a. Common Scenario: most cases involve distinguishing b/w positions which are central to preserving the religious character of the institution or which are merely ancillary. Test: is the general picture of the institution primarily religious or secular? 1) Whether a corp is religious requires all religious and secular characteristics to be weighed.

b.

3.

Operational Issues: a. Rule: 1) Religious corps, associations, education institutions and societies are NOT subject to Title VII for employment decisions relating to the “employment of individuals of a particular religion to perform work connected with the carrying on by such corp, association, education institution or society of its activities.” 2) Title VII‟s religious exemption does NOT violate the ESTB CL: a) Passes Lemon. b) Rationale: it is permissible for Congress to allow religious orgs to pursue their respective missions without scrutiny by govt agencies. 3) Religious orgs can impose religious requirements on EEs. a) Religious school can hire people of particular religion. b) Can exclude those who do not remain faithful to their doctrinal beliefs. Cases: 1) Latter Day Saints v. Amos (US 1987) – White – p627: a) Held: non-profit religious org‟s discharge of EE b/c he was not Mormon was appropriate. b) Reason: (1) Too hard for religious org to have to guess which of its activities a court will find secular or religious. (2) A law is not unconstitutional b/c it allows church to advance religion – Lemon is only violate when govt is advancing religion - p628 c) Brennan’s concur: (1) Wants to limit this rule to non-profit orgs. (2) Says this approach requires case-by-case analysis which will result in govt entanglement – chilling of FE. d) O’Connor’s concur: would apply endorsement test and find that e) Significance: shows Court‟s concerns about ER and govt entanglement when determining what acts are secular v. religious.

b.

4.

The ADA and Religious Organizations: a. Scope: 1) Applies to all ERs. 2) Exception: religious org may give preference to an individual on basis of religion even if it doing so would discriminate against a disabled individual protected under the ADA.

F.

THE SECULAR WORKPLACE:

45

1.

Jurisdiction: a. b. 1A acts as limit on Congress’ power in VII. Key Issues: 1) How much, when and to what degree can secular ER regulate religious beliefs of EEs 2) To what extent can federal govt force ER to accommodate without violate 1A?

2.

When is a Workplace “Secular”? a. Rules: 1) “primarily religious” test to determine whether something is religious org: a) All significant religious and secular characteristics must be weighed to determine whether a corp‟s purpose and character are primarily religious. (1) Indicators: (a) Affiliation with a church? (b) Product produced? (c) Beliefs of owners of corp are not enough to make the corp “religious”. 2) ER must show undue hardship on the conduct of his business. Cases: 1) EEOC v. Townley (9 th Cir. 1988) – p634: a) Held: mandatory weekly devotional services b) Reason: ER has to accommodate EE who does not want to attend services. (1) Congress clearly intended VII to apply to ERs like Townley. (2) Accommodation is affirmative statutory obligation on ER. (3) Congress c) Noonan’s dissent: (1) Says ER has already accommodated EE. (2) Corps have 1A rights of their own. (3) Rejects idea that there is separation b/w religious and secular acts. (4) EEOC should not be in business of making theological judgments. d) Significance: fascinating case b/c raises all issues as to the existence of religion in the workplace.

b.

3.

Operational Issues: a. Key Issues: 1) Extent of accommodation required? 2) Who decides? 3) To what degree can ER regulate the religious beliefs of the EE? Rule - analysis under VII: 1) P has burden of estb prima facie case: 2) Burden shifts to D to give legitimate non-discriminatory reason for its action (e.g., discharge, etc). 3) Burden shifts back to P to establish by preponderance of evidence that the nondiscriminatory reasons given by the D are a pretext for discrimination. Close connection b/w claims of religious discrimination and those based on national origin – Jewish can fall under both.

b.

c.

46

1) EEOC v. Phila. School Dis. (3d Cir. 1991) – p646: court held that public school districts can impose religious garb requirements d. Cases: 1) Rosen v. Thornburgh (2d Cir. 1991) – p643: a) Held: P has to prove that given reason for discharge was mere pretext.

4.

An ER’s Duty to Accommodate Under Title VII: a. Scope of Duty to Accommodate: 1) Rules: a) ER has affirmative duty to reasonably accommodate the religious practices of EEs or prospective EEs if accommodation does not impose an “undue hardship on their business”. (1) Timing: duty arises after EE informs ER of religious need.

b) EE must establish prima facie case for accommodation: (1) EE has bona fide belief that compliance with an employment requirement is contrary to his religious belief; (2) EE informed ER of conflict; (3) EE was penalized b/c of his refusal to comply the employment requirement. c) ER can then rebut prima facie case by either: (1) Show EE failed to inform ER of the conflict; (2) Reasonable accommodation was attempted; OR (a) End of ER‟s statutory duty: i. Once ER has reasonably accommodated EE‟s need, no further duty. ii. ER need not show that each of EE’s alternative accommodations would result in undue hardship. iii. Not EE’s choice: ER not required to select any particular accommodation offered by EE – he only has to select a reasonable one. iv. Rationale: worry that EE will hold out for most beneficial accommodation. (b) Possible reasonable accommodations: i. Voluntary swaps and substitutes; ii. Flexible scheduling; iii. Arrange lateral transfer or change EE‟s job assignment. (3) Accommodation is not possible without undue hardship on the business. (a) “Undue hardship”: (1) Indicators: (a) Economic Factors: i. Does EE perform an “essential” job? ii. Can EE be easily replaced? iii. Will ER have to pay higher wages to replace? (b) Non-economic factors: i. Health ii. Safety iii. Effect on moral? iv. Generate lots of additional requests? v. Would accommodation violate another statute?

47

(2) Simple unwillingness is NOT enough. (3) Any legitimate business reason will suffice as long as it is not pretext for discrimination. d) Overlap with Union’s CBA: (1) Operation of a seniority system cannot be an unlawful employment practice in violation of VII even if the system has some discriminatory consequences. (2) If seniority systems fails to accommodate, this is not the ER‟s fault – ER can only work within his allowed CBA structure – Hardison. 2) ADA has more stringent definitions of “undue hardship” and “reasonable accommodation” 3) Cases: a) Trans World Airlines v. Hardison (US 1977) – White – p651: (1) Held: CBA‟s seniority system does not violate VII – ER cannot accommodate. (2) Marshall’s dissent: makes VII toothless; allow ER to use CBA as an excuse not to attempt to accommodate. b) Ansonio Bd of Ed v. Philbrook (US 1986) – CJ Rehnquist – p656: (1) Held: remand case for further factual inquiry. (2) Marshall’s concur/dissent: worried about minority religions. (3) Stevens’ concur/dissent: b. Statutes Addressing Specific Religious Concerns:

G. THE GOVERNMENT WORKPLACE:
 

Different b/c constitutional provisions apply directly. Greater variety of claims available to EE when govt = ER. The Test Clause of Article VI:


1.

 

3 Elements: 1) A religious test 2) Utilized as a qualification for 3) Any office or public trust under the US. Does Test Clause apply to states? To what extent can Test Clause apply to government funding decisions? What is a “Religious Test” or Qualification? 1) Definition: device which operates to screen out those whose religious beliefs or practices, including the taking of oaths, are thought, for reasons of policy or prejudice, to be undesirable.

a.

b. c.

What is an “Office . . . under the United States”? What is a “Public Trust”?

48

1) Broader than term office. 2) Applies also to federal contractors and grant-eligibility considerations. 2. Statutory an Administrative Claims:


Govt unique b/c: 1) Enforce public policy; AND 2) Administrative and procedural protections with come with civil service status. Conscientious Objection to Regulatory and Investigatory Assignments: Procedural Requirements: 1) There are detailed requirements for federal EE to raise a discrimination complaint. 2) Exhaustion requirement.

a. b.

Chapter 9: the Taxation of Churches, Charities & Their Affiliates

A. INTRO: Distinguishing Theory and Practice – A Preliminary Note on Methodology: a. False Assumption: everyone assumes churches are exempt – this is NOT true – statutory authority has to create the exemption. Problems with Tax and Religion: 1) Structural: are these subsidies? Social policy? 2) Political: will tax be flat, progressive? 3) Jurisdiction: does Congress have the power to tax and how do we describe this power?

1.

b.

2.

Ascertaining the Character of the Issue:

B. DEFINITION & TERMINOLOGY:


See attached list of jurisdictional and operational questions.

49

1.

What is a “Tax”? a. General Characteristics – see list p678:

2.

Types of Taxes: a. b. c. d. e. Assessment: User fees: Impost: Duty: Excise:

C. DOES THE STATE HAVE THE POWER TO TAX THE CHURCH? The Power to Tax = legislative function: a. b. Ascertaining jurisdiction is critical first step – does taxing authority have jurisdiction to levy on the subject of the tax, and the right to collect if from the putative taxpayer? Two purposes: 1) To generate revenues 2) To Regulate conduct

1.

2.

State and Federal Jurisdiction to Tax Churches and Religious Activities: a. ??? Controversy - are tax immunities derived from 1A – is 1A jurisdictional or prudential? 1) Jurisdictional: concept of religious liberty embodied in 1A makes religious activity an improper subject of taxation. a) 2 approaches: (1) 1A is barrier to govt seeking money from devoted by people to religious purposes. (2) 1A requires that there no exemptions for religious orgs. 2) Prudential: nature and degree of burden that taxes place on religion is too high. Rules: 1) FE Issue: a state can impose a generally applicable sales and use tax on the distribution of religious materials by a religious org – Jimmy Swaggert. a) Rationale: there are two type of taxes (1) A tax which operates as a prior restraint on the exercise of religious liberty (like tax in Murdock) - UNCONSTITUTIONAL. (2) A generally applicable tax which applies neutrally to all retail sales of tangible personal prop - CONSTITUTIONAL. (a) No burden in this case – just reduces amount of money church would earn. 2) When enter commercial activity, FE rights disappear: a) Compelled participation in SSS does not violate FE b/c govt interest in maintaining system is so compelling- US v. Lee. b) Echoes Smith.

b.

50

3) States can provide greater protection under state constitutions: states may forbid what Constitution permits. c. Cases: 1) Murdock v. PA (US 1943) – p682: a) Facts: Jev Ws being taxed for selling pamphlets. b) Held: tax violated FE. c) Reason: (1) These were not “sales” but religious activity/exercise. (2) Put a condition on their ability to exercise their religion 2) Jimmy Swaggert (US 1990) – O‟Connor – p683: a) Held: a state can impose a generally applicable sales and use tax on the distribution of religious materials by a religious org. b) Significance: after this case, seems clear that 1A does not impose a jurisdictional bar to either federal or state power to tax the church. 3) US v. Lee (US 1982) – CJ Burger – p693: a) Held: no violation of FE to compel participation in SSS. b) Reason: (1) Although there is a burden, there is compelling interest in maintaining govt‟s SSS. (2) Distinguish Yoder b/c of difficulty of accommodation involved here. (3) Flood gate concerns. c) Stevens’ concur: burden should be on P to show compelling reason for exemption.

3.

Historical Note on the Origin and Development of Tax Policy Affecting the Property and Activities of Religious Institutions: a. b. Church was large land owner. Justifications for tax exemptions for churches: 1) Public morals theory. 2) Public benefit theory: which accrue to community b/c of church sponsored activities. a) Neutralizes religious aspect. b) Exempted b/c they do good things for community. Exemptions are GRANTED – not inherent – Congress could change tax code if it wanted to (and then we would have to reframe the issue in constitutional terms). Definitional Problems: not all church activities are exempt. Filing Requirements 1) Churches exempt from filing. 2) Religious orgs may still have to file.

c.

d. e.

D. FEDERAL AND STATE TAX POLICY AFFECTING CHURCHES, CHARITIES AND RELIGIOUS ORGANZATIONS – AN OVERVIEW: A Short History of Federal Tax Structure and its Impact on Religious Orgs: Which Functions are Exempt?

1. 2.

51

3.

Religious Activity as an Exempt Function: a. What is a Church? 1) Generally: a) Not defined in IRS code. b) Determined on case-by-case basis. 2) Rules: a) Church is coherent group of individuals and families that join together to accomplish the religious purposes of mutually held beliefs . . . a church‟s principle means of accomplishing its religious purposes must be to assemble regularly a group of individuals related by common worship and faith. b) Churches do not have to file tax returns, but to be classified as a “church” under the IRS Code, the organization must meet some of the 14 criteria listed on attached sheet – p707. 3) Cases: a) Church of Eternal Life (Tax Court 1986) – p708: (1) Held: not a church b/c discouraged new members, only 2 members, etc. (2) Reason: court uses common definition of church to understand it. (3) Significance: (a) Shows how tax authority can delve into inner workings of religious org. (b) This religious org can still consider itself a “church” for other, non-tax, purposes. b. What is a “Religious Organization”? 1) Broader than a church. 2) Integrated auxiliaries of church Other Exempt Activities: What is a “Charity”?
 

4.

5.

Charities are exempt. 2 requirements of charity: 1) Public benefit 2) Comport with public policy The Requirement of Public Benefit: 1) Generally: a) Statute of Charitable Uses – list examples - p714 b) C/L judges expanded this list. c) Not all philanthropic purposes are charitable. 2) “Purely Public” Charities: a) Can be religion – must be more specific than philanthropy b) Requirements:

a.

52

(1) Advances a charitable purpose; (2) Donates or renders gratuitously a substantial portion of its services; (3) Benefits a substantial and indefinite class of persons who are legitimate subjects of charity; (4) Relieves govt of some of its burden; AND (5) Operates entirely free from private profit motive. 3) Distinguishing Between “Religious” and “Charitable” Uses: b. The Requirement that the Purpose or Activity be “Consistent with Public Policy”: 1) Rule: to receive tax exempt status, a charity must be consistent with public policy – racial discrimination is not consistent with public policy – Bob Jones (US 1983) – CJ Burger – p720. 2) Case – Bob Jones (US 1983) – CJ Burger – p720: a) Held: b) Reason: Court wants to define definition of “charitable” that will exclude BJ School. c) Powell’s concur: concerned that IRS is overstepping its bounds. d) Rehnquists’ dissent: would follow statute and leave the issue to Congress to resolve in legislation. e) Significance: (1) Case creates standing for those who have suffered no injury to challenge exemptions of private orgs. (2) Courts have generally put a stop to this.

E. DOES 1A REQUIRE THE EXERCISE OF THE TAXING POWER – CONSTITUTIONAL LIMITS ON THE POWER OF LEGISLATURES TO EXEMPT CHURCHES AND RELIGIOUS INSTITUTIONS FROM TAXES OF GENERAL APPLICABILITY:


Rule: tax exemptions are not constitutionally compelled unless the character or operation of the tax presents a clearly articulated danger to FE. Philosophical discussion on Court as to purpose behind and how to characterize “tax exemptions” a. Are tax exemptions subsidies or expenditures? b. Are tax exemptions instrument of social policy to encourage and discourage certain kinds of activities and behaviors? What is a Tax “Exemption”? a. Definition: it is a decision by tax authority NOT to tax certain persons, property, orgs, institutions or activities.



1.

2.

Subsidy Theory – Are Tax Exemptions Subsidies? a. Tax Exemptions as “Contributions” to Exempt Orgs: 1) Said another way: tax exemption for church requires individual citizen to make a contribution to a religious org.

53

2) 2 General Approaches: a) Those that believe churches should be taxed rely on Brennan‟s theory that tax exemption = subsidies. b) Those that believe churches should NOT be taxed rely on historical and constitutional arguments with rest on FE, E/P, separation of powers and federalism. “Tax Expenditure” Theory and Its Impact in the Courts: a. What is a “Tax Expenditure”? 1) Once you accept this theory, serious constitutional problems arise. 2) Income Tax System Has Two Goals: a) Primary goal = revenue generation b) Secondary goal = carry out social policies. b. Differentiating “Revenue” from “Social and Economic” Goals – What Are the Characteristics of a “Tax Expenditure”? 1) Results in serious problems for religious and charitable orgs. The Constitutional Implications of Tax Expenditure Analysis: a. Tax immunities.

3.

4.

5.

Applying Theory to Practice – Tax Subsidy Theory in the Courts: a. ??? Rule: when govt directs narrowly written subsidy that provides a benefit to a particular religion (and is not required by FE), it will generally violate the ESTB CL – TX Monthly. 1) Said another way: a subsidy that applies exclusively to religious orgs that: a) Is not required by FE; OR b) Burdens non-beneficiaries markedly; OR cannot reasonably be seen as removing a significant state-imposed deterrent to FE . . . c) Provides unjustifiable awards of assistance to religious orgs; AND conveys a message of endorsement. TX Monthly Meeting v. Bullock (US 1989) – Brennan – p743: 1) Held: TX tax exemption for sales of mags promulgating religious faith violates ESTB CL. 2) Reason: a) Exemption seems to be blatant endorsement of religion. b) Any tax exemption written narrowly to provide a benefit cannot withstand ESTB CL. 3) White‟s concur: focuses on free speech issue. 4) Blackmun‟s concur: worried about conflict b/w FE and ESTB CL. 5) Scalia‟s dissent: a) Relies on Gianella‟s distinction b/w subsidies and exemptions. b) This distinction informed court‟s decision in Walz.

b.

54

Chapter 10: The Secular State, Civil Society and Religious Morality


RECCURRING THEMES: 1. Conflict b/w religious values and values prized by dominant culture – conflict b/w religious faith and secular faith. 2. Does secular state have to be neutral on questions or morals or values? a. On certain issues, state must remain neutral; on others, it can endorse certain values. SUBJECT OF THIS CHAPTER: 1. When Constitution requires state to defer to (or even affirmatively recognize) a claim of religious liberty alleged to be in conflict with democratic values 2. When Constitution permits the state to ignore or override a claim of religious livery



A. POLITICAL PARTICIPATION BY RELIGIOUS ADHERENTS: 1. Rules: a. Clergy Disqualification Laws: state may no disqualify ministers/clergy from holding office solely on basis that hey hold a religious position – McDaniel v. Paty. Moments of silence: establishing a period of silence for mediation or voluntary prayer in public schools without a secular purpose violates 1A – Wallace v. Jaffree. Creationism Statutes: statutes forbidding the teaching of evolution in public schools unless accompanied by creation science violate ESTB CL - Aguillard. 1) Thus, even with stated secular purpose, if legislation does not further than stated secular purpose, it violates ESTB CL. 2) Rational: b/c it seeks to employ the symbolic and financial support of the govt to achieve a religious purpose. Can religious lawmakers rely on religious arguments/justifications in making laws? 1) Court makes a distinction b/w – is this principled? a) Legislatures using religious beliefs in determining what the law is (constitutional). b) Legislatures codifying particular religious beliefs (unconstitutional). How should courts determine whether legislative purpose is secular or religious? O’Connor’s Endorsement Test: 1) Does not preclude govt from acknowledging religion or from taking religion into account in making law and policy

b.

c.

d.

e. f.

55

2) Does preclude govt from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. 3) A religious purpose alone is not enough to invalidate – the religious purpose must dominate. Titanic Shift in Political Dialogue About the Role of Religion in Public Life in the US Over the Years: a. Presidents: 1) JFK took strict separationist position: a) Religion should not be part of public discourse. b) “I am not the Catholic candidate for President. I am the Democratic Party‟s candidate”. c) Justice White reflects this approach. 2) Clinton adopted accommodationist position (“Religion has a proper place in private and a proper place in public [life]”). 3) Bush has gone further than Clinton. b. Court: 1) 1960s - strict separationist 2) 2000 – accommodationists. Cases: a. McDaniel v. Paty (US 1978) – CJ Burger – plurality - p757: 1) Held: clause in TN Constitution (disqualifying ministers from serving as legislatures) violates Test Clause and FE. 2) Reason: a) FE Claim: (1) Clearly burden: violates FE b/c prohibits individual from exercise right to hold office and right to be a minister simultaneously b/c state conditions exercise of one on surrender of the other. (2) No compelling state interest: (a) Recognition of changing real facts on which 1A is operating purpose of disqualify rules was rationale at time of enactment (concern for entanglement) but Court relies on Madison and others and on changes in society to say this is no longer a threat. b) ESTB CL Claim: govt cannot be hostile toward religion. c) Court distinguishes Torcaso. d) Any clarification on meaning of belief/act distinction? (1) State argued for action/belief distinction. (2) Court says clause aimed at acts but there is 1A protection for some acts – rely on Yoder. 3) Brennan‟s concur: a) Rejects belief/act distinction b) There is an ESTB CL issue as well – estb of “irreligion” over religion – ESTB CL is a shield not a sword. c) This statute is patently hostile toward religion. 4) White‟s concur: would find clause unconstitutional under E/P. 5) Significance: a) Per Curiam Opinion is a device to remind legislature who interprets the Constitution – Stone v. Graham (10 commandments cannot be posted in schools). b) Different Value Perspectives: Court cannot reach a uniform approach b/c each justice approaches individual liberty concerns from different VALUE perspectives – each member of Court will weigh the following interests differently: (1) Liberty interest

2.

3.

56

(2) E/P interest (3) Separation interest b. Wallace v. Jaffree (US 1985) – Stevens – p765: 1) Held: state statute (establishing a period of silence for mediation or voluntary prayer in public schools) violates ESTB CL. 2) Reason: no secular purpose. a) Test = whether govt’s actual purpose is to endorse or disapprove religion. b) Stevens ignores usual statutory interpretation rules that say we look at statute on its face first; instead, relies on statements of one member of legislative that Bill was “effort to return voluntary prayer to our public schools”. 3) Powell‟s concur: some moment of silence statutes may be constitutional. 4) O‟Connor‟s concur: a) Some moment of silence statutes may be constitutional under her test: (1) Distinguish from state-sponsored vocal prayer or Bible reading: (a) Silence need not be associated with a religious exercise. (b) Student who participates in moment of silence need not compromise his or her beliefs. b) Her first attempt to describe endorsement test – BENEFITS of her test: (1) Does not preclude govt from acknowledging religion or from taking religion into account in making law and policy (2) Does preclude govt from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. (3) A religious purpose alone is not enough to invalidate – need more. c) Endorsement test in application here: crucial question here is whether state has conveyed the message that children should use the moment of silence for prayer. 5) CJ Burger‟s dissent: a) Ironic and bizarre b/c many govt offices start with prayer– “members of Congress and Court are more in need of Divine guidance than are school children”. b) Shows hostility not neutrality to religion. 6) Significance: a) Very unusual for Court to delve into legislative history of facially neutral statute – clearly an effort by Court to prevent this law from undermining past Court decisions and to keep religion out of schools. Edwards v. Aguillard (US 1987) – Brennan – p770: 1) Held: La statute (forbidding the teaching of evolution in public schools unless accompanied by creation science) violates ESTB CL b/c it seeks to employ the symbolic and financial support of the govt to achieve a religious purpose. 2) Reason: a) Applies Lemon test: fails secular purpose prong (academic freedom is NOT furthered by outlawing teaching of evolution or mandating teaching of creationism) b) Purpose of act‟s sponsor was to narrow the science curriculum in order to provide persuasive advantage to a particular religious doctrine c) Court rejects happenstance argument. 3) Powell‟s concur: a) This case is an exception - reasserts traditionally broad discretion accorded state and local school officials in setting curriculum. b) A religious purpose alone is not enough to invalidate – need more. 4) White‟s concur: 5) Scalia‟s dissent: a) Under ESTB CL, legislation cannot be invalidated on purpose alone - have to look at effects. b) Religious activism is a good thing (ended slavery, famine victims). c) Relies on happenstance interpretation technique.

c.

57

d) “Scopes- in reverse? 6) Significance: a) Very troublesome case for Court – haunts the Court.

B. EVOLUTION REDUX: Rules: a. Exposure v. Coercion: mere exposure to ideas anti-thetical to the religious convictions of the students does NOT create a constitutional burden on FE. 1) Rationale: a) No burden on FE: (1) No act or belief is required of students – civil tolerance not religious tolerance: students are not required to ACCEPT another‟s beliefs as true but to simply be AWARE of divergent views in a pluralistic society and be willing to live and let live. (2) Existence of alternatives (private schools) takes away any threat of coercion. b) Compelling State Interest: (1) Schools teach values essential to democracy: one of the values of public schools is that they seek to instill tolerance of divergent political and views: (2) Avoid disruption that would be caused by an opt-out remedy. (3) Avoid religious divisiveness. 2) Only adverse case is Yoder where mere exposure did violate FE. Are judges taking assimilationist or individualistic approach?

1.

b.

2.

History of Evolution Debate: a. Labeling has changed – proponents of creationism lobbied textbooks to call evolution a theory rather than a fact. b. And to label creationism a scientific theory of human origin rather than a religious theory of human origin. Secular Humanism as Religion: a. Tenets: “anti-Christian belief system” 1) Nontheism 2) Rejection of super-natural religions 3) Salvation by mankind itself 4) Individual self-fulfillment 5) Belief in reason and science 6) Evolution 7) Particularistic ethics 8) Liberty 9) Equality 10) Democratic govt b. Some argue it has been established in public schools. c. If this idea is accepted, will produce sea change in ESTB CL jurisprudence. Cases: a. Mozert v. Bd of Ed (6th Cir. 1987) – p780:

3.

4.

58

1) Held: mere exposure to ideas anti-thetical to the religious convictions of the students (via a critical reading course) does NOT create a constitutional burden on FE. 2) Reason: a) No burden on religion here b/c: (1) No act or belief is required of students – only required to read and be exposed to content of texts. (2) One of the values of public schools is that they seek to instill tolerance of divergent political and views: (a) This is a civil tolerance not a religious one: students are not required to ACCEPT another‟s beliefs as true but to simply be AWARE of divergent views in a pluralistic society and be willing to live and let live. (b) Court rejects P‟s theory: P explicitly stated that she objected to stories that develop religious toleration that all religions are merely different roads to God – “We cannot be tolerant in that we accept other religious views on an equal basis with ours”. (3) Existence of alternatives (private schools) takes away any threat of coercion. (a) This justification is open to attack if you characterize what is being taught – secular humanism – as a “religion”. 3) Concur #1: a) Even if there was a burden, there is compelling state interest in preventing the disruption that would be caused by an opt-out remedy. b) Frankino Note: there is NO evidence that opting out would cause disruption. 4) Concur #2: a) See no compelling state interest b) Schools job is to assimilate students. c) Shows assimilationist approach in pluralistic society – “He drew a circle that shut me out . . . We drew a circle that took him in!” b. Roberts v. Madigan (10th Cir. 1990) – p788: 1) Held: prohibiting teacher from reading Bible during 15 minutes of silent reading did not violate teacher‟s FE. 2) Interesting to note that if teacher was reading the life of Buddha that would be okay

C. ANTI-DISCRIMINATION LAWS AND RELIGIOUS CONVICTIONS: Rules: a. Alaska’s Exemption Analysis Under State’s FE statute: 1) Summarized: absent a compelling state interest, state must grant a religious exemption from a generally applicable law. 2) Elements: a) P must make prima facie showing to invoke a religious exemption: (1) Religion must be involved; (2) Conduct in question is religiously based; AND (3) Claimant is sincere in his or her religious beliefs. b) If meet requirements, religiously impelled actions can be forbidden ONLY where they pose: (1) Some substantial threat to public safety, peace or order; OR (2) Where there are competing govt interests of the highest order which are not otherwise served.

1.

59

b.

Fair Housing Laws and Religious Belief 1) Split on whether L may religiously discriminate in housing decisions: a) L may discriminate against unmarried heterosexual couple by refusing to rent to them on basis of L‟s religion – French: (1) Rationale: rely on state constitution where fornication is a crime – L should not be forced to violate his religious beliefs. b) L may NOT discriminate against unmarried heterosexual couple by refusing to rent to them on basis of L‟s religion - Swanner: (1) Rationale: (a) Law is neutral, generally applicable law. (b) Rights involved are commercial, not religious. 2) Secular v. Religious Values Clash a) These cases represent the clash b/w a secular value (elimination of discrimination in housing) and a religious value (control over rental property in accordance with one‟s religious beliefs). b) The conflict is settled according to the characterization of the govt’s interest. Organizations with Religious Preferences: 1) Boy Scout‟s Religious Requirement: the Boy Scouts may not discriminate on the basis of religious belief or lack of religious belief b/c they are not a religious org – Randall. 2) Notes on Gays and Religion: a) Dichotomy b/w status (being homo or hetero) and activity (having sex) creates problems for church-related entities: allows schools to prohibit a gay student org from sponsoring events that go against religious cannons (no premarital sex) but cannot discriminate on status. b) There is growing tension b/w church orgs and the rising rights of gap and lesbian groups.

c.

2.

Cases: a. Swanner (Alaska 1994) – p790: 1) Held: L may NOT discriminate against unmarried heterosexual couple by refusing to rent to them on basis of L‟s religion. 2) Reason: a) Apply Smith and find no violation of federal FE CL b/c: (1) This law is neutral on its face and in purpose. (2) No hybrid situation. b) No FE violation under state constitution. c) To invoke a religious exemption under Alaska law: (1) P must make prima facie showing to invoke a religious exemption: (a) Religion must be involved; (b) Conduct in question is religiously based; AND (c) Claimant is sincere in his or her religious beliefs. (2) If meet requirements, religiously impelled actions can be forbidden ONLY where they pose: (a) Some substantial threat to public safety, peace or order; OR (b) Where there are competing govt interests of the highest order which are not otherwise served. d) Application of Alaska test: compelling govt interest of highest order overcomes P‟s exemption showing. (1) Derivative v. transactional interests. e) This was voluntary commercial activity. 3) Dissent #1:

60

Agrees on test under state constitution but different result b/c find no highest order govt interest. b) Right to co-habitat is not on same level as other constitutional rights. c) An individual does not waive constitutional rights by engage in commercial activity. a) b. State v. French (Minn 1990) – p800: 1) Held: L may discriminate against unmarried heterosexual couple by refusing to rent to them on basis of L‟s religion – French: 2) Reason: a) There is state statute prohibiting fornication (this factor NOT present in Alaska case). b) L should not be forced to violate the law AND his religious beliefs. 3) Dissent #1: lays out 4 part test. Randall v. Boy Scouts (Cal App. 1994) – p814: 1) Held: Scouts may not discriminate on the basis of religious belief or lack of religious belief b/c they are not a religious org. 2) Reason: a) Court avoided the 1A question by deciding the case on statutory grounds – did Scouts fall under religious org exemption of Unruh Act. b) Scouts are not a “religious org” under Unruh Act since any religion will do for the oath. c) Oath requirement that scouts believe in God or have religion violates Unruh. 3) Dissent: Scouts are NOT a business – they should fall under religious org exemption of Unruh Act. 4) Significance: a) Scouts have had many problems with civil rights laws and religion laws. b) Bottom line: Scouts = private org (thus, not subject to civil rights laws) but private and public funders are pulling out.

c.

D. RELIGIOUS LIBERTY IN THE MILITARY: Rules: a. b. Military cannot compel attendance at chapel. Govt Sponsored Chaplaincy is Constitutional: 1) It is NOT a violation of ESTB CL for military to provide chaplains so that soldiers can practice religion of choice – Katcoff a) Exceptions - no need to provide chaplains for : (1) Arm chair military personnel (2) Retired personnel b) Rationale: (1) Necessity of chaplaincy: compelling interest in maintaining army and increased need for religion in certain military environments. (2) No alternative way to provide. (3) Narrowly tailored accommodation: Court interpreted ESTB narrowly - all faiths were represented and no one was forced to partake in religion (4) Neutrality: chaplains not allowed to proselytize (this may create FE claim by chaplain). (5) Denying chaplains would probably violate ESTB CL (show hostility toward religion) and violate FE.

1.

61

(6) War Powers Act requires greater deference than normally given to legislature. (a) Test = if requirement appears reasonably relevant and necessary to furtherance of our national defense, it will be treated as presumptively valid – defer to military‟s discretion. c. Uniform Dress Code: 1) Court said there was no FE violation where individual forbidden from where religious garb b/c of need for uniformity in military. 2) Legislature responded with act generally allowing the wearing of religious apparel while in uniform.

2.

Theme - courts are trying to parse out role of reach of the groups involved and find a compromise. Cases: a. Katcoff v. Marsh (2d Cir. 1985) – p821: 1) Held: no ESTB CL violation. 2) Reason: a) See above. b) Avoids Lemon, instead uses rationally related test. 3) Significance: accommodationist opinion. Goldman v. Weinberger (US 1986) – p828: Court said there was no FE violation where individual forbidden from where religious garb b/c of need for uniformity in military.

3.

b.

Chapter 11: Autonomy, Religious Practice and Governmental Regulation A. THE RIGHT OF IDEOLOGICAL NONASSOCIATION: 1. Rules:

62

a.

FE - individuals have right to hold a different view - state cannot compel individual to advocate (or be an instrument for fostering public adherence to) an ideological view he finds morally repugnant – Wooley v. Maynard. 1) Wooley v. Maynard (US 1977) – CJ Burger – p829: a) Held: NH license plate b) Reason: (1) Right to hold a different view. (2) Right to refrain from speaking is as fundamental as right to speak. c) Rehnquist’s dissent: (1) Analogy to “In God We Trust” on coinage – troubling – no good answer. d) Significance: (1) Shows tension b/w: (a) Individual‟s right NOT to speak, NOT to affirm, not to belief; AND (b) Legitimate interest of society (represented by state) in affirming certain basis principles which may touch on religion.

b.

FE – state cannot coerce individual to express a belief or disbelief in any religion Torcaso. 1) State cannot require a religious oath as a prerequisite to obtaining public office – Torcaso v. Watkins (US 1961) – Black – p832.

B. INDIVIDUAL AUTONOMY EXPRESSED IN RELIGIOUS PRACTICES: 1. Generally: a. Tension b/w exotic, individual religious beliefs and practices and general right of society to uphold public health and safety and welfare regs. FE and Dangerous Religious Acts: a. A religious act may be limited to point of prohibition where it involves a clear and present danger to the interests of society but action of state must be reasonable and reasonably related to the needs of society as determined by weighing the nature of the activity against societal interests - Swann. Swann (Tenn. 1975) – p836DD 1) Facts: FE claim, snake handling. 2) Held: statute (prohibiting snake handling) is constitutional – no FE violation. 3) Reason: a) Court very deferential to religion. b) Court applies strict scrutiny (pre-Smith): state‟s compelling interest in protect life trumps religious freedom. c) This is constitutionally protected religious org BUT . . . d) State has substantial state interest in face of clear and present danger to life. e) Religion usually favored in balance BUT . . . : if there is clash b/w religious freedom and health, safety, morals of public/individual, preference is first given to religion however that does not always mean it trumps. f) Court relies on C/L of nuisance not the statute in coming to conclusion. 4) Significance: snake handling cases are still an open question – Court has refused to hear.

2.

b.

3.

FE and Right to Refuse Treatment:

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a.

State has right to intervene to save a person’s life even over their own religious objections. JFK Hospital v. Heston (NJ 1971) – p843: 1) Facts: Jev W refuse blood transfusion. 2) Held: hospital can force transfusion. 3) Reason: a) Religious beliefs are absolute but conduct in pursuance of religious beliefs is not wholly immune from governmental restraint. b) State has compelling interest in life. c) Other-regarding duties: court distinguished b/w adult (not as strong a state‟s interest) v. adult who is also a parent (state has stronger in interest). (1) Other courts have rejected this distinction. 4) Significance: serious problem for Christian Science members. Split Among Courts as to whether religious convictions can permit one to refuse life-saving medical treatment 1) More recent cases allow right to refuse on FE and privacy rights grounds.

b.

c.

C. RELIGIOUS PRACTICES, THE FAMILY AND THE STATE AS PARENT: 1. FE and Govt Reg of the Family: a. Rule: State has power to control conduct of children when issue involved is whether they should be allowed to publicly proclaim their religion and evangelize. Case - Prince v. Mass (US 1944) – Rutledge – p847: 1) Facts: Jev W and child selling mags. Child labor law prohibits. 2) Held: Child labor is valid – no FE violation. 3) Reason: a) Two liberties at stake (1) Parent‟s; AND (2) Child‟s. b) Court recognizes that custody, care, nurture of child rest first with parent BUT . . . (1) The family itself is NOT beyond reg in public interest, as against a FE claim c) State - as parens patriae - can make decisions about welfare of child without showing a compelling interest. (1) Examples: state as can require children to go to school, reg labor, etc d) Parents are free to become martyrs but cannot make martyrs of their children. (1) Let child grow up first and then let him decide what he wants to do. e) Tension b/w: (1) Right of parent to have authority over child and to raise them as they see fir; AND (2) Interests of society to protect welfare of children. 4) Murphy‟s dissent: a) Broad view of religious liberty – point of religion is to proselytize beyond church and into community. b) Test: Mere possibility of harm to child is NOT enough – must be a substantial risk of grave harm to child or state. c) Rely on Carolene Products FN #4: this will harm minority religions. 5) Jackson‟s dissent: concerned about scope of state‟s interference in religion – too much. 6) Significance:

b.

64

Frankino notes that majority opinion is disturbing b/c it cites NO DATA in support of its determination about impact of selling religious pamphlets on child. b) Widely criticized opinion. c) Ironies: Bible says a “child shall lead” a) Religion and the Care of Children: a. Rule: 1) Majority Approach is Statutory Protection for Parents: most states statutorily protect parents who prohibit their children from receiving medical treatment from charges of child abuse or neglect. a) Hospitals will seek guardian from courts. 2) What About Homicide?: parents have duty to seek medical attention for their children when such medical attention can correct a potentially fatal condition - Twitchell. a) Rationale: C/L and statutory standards of care of children are not altered by religious belief. Tension b/w: 1) Religious liberties and states interests in protecting child‟s welfare. Case – Comm v. Twitchell (Mass. 1993) – p855: 1) Facts: Christian Scientists who refuse treatment for daughter. 2) Held: remand to consider whether parents have affirmative defense. 3) Reason: a) Parents have affirmative duty of care. b) Statute does not protect parents b/c it only applies to negligence, not involuntary manslaughter. c) Remand b/c reasonable person could be misled by the AG‟s interpretation of statute as represented to them by their religion. 4) Significance: a) Impact on Minority Religions: these cases show courts and majority religions‟ tendency to limit the religious freedoms of minority religions.

2.

b.

c.

3.

Religion and Child Custody: a. 3 approaches to how and when courts can consider religion as a factor in custody disputes 1) Broad approach - Burham: a) Only allow consideration of religious belief of parent if beliefs have the capacity to negatively affect the health, safety or welfare of the child. b) Said Another Way (1) Generally, courts treat religions impartially and will not disqualify a parent from receiving custody b/c of his or her religious beliefs: (a) Safety Exception: religious beliefs may become an issue when they have the capacity to negatively affect the health, safety or welfare of the child. c) Rationale: not making judgment about religious beliefs of parent but only what impact those beliefs will have on child. 2) Modest Approach: a) Only allow consideration of religious belief of parent if well-being of child is threatened. 3) Restrictive Approach: a) Only allow consideration of religious belief of parent if there is actual harm to child.

65

b.

Adoption Statutes: many adoption statutes say it is in best interests of child to put child with family with same religious beliefs or background as genetic parents. Case – Burham (Neb. 1981) – p863: 1) Facts: woman/mother adopted strange religion that said marriage and child were illegitimate 2) Held: court can consider Mother‟s religion in award custody of child to father. 3) Reason: b/c religion may cause child harm. a) Test = best interests of child.

c.

D. RELIGION AS AN AFFIRMATIVE DEFENSE TO GOVERNMENTAL REGULATION: Religious Institutions and Officers and Tort Law: a. Generally: 1) Very difficult to bring tort claims against religious orgs. 2) 5 types of tort claims that may impinge on religious liberty – p869-871. Clergy Malpractice: 1) Rule: most Courts reject clergy malpractice claims b/c no way to come up with a reasonable care standard - Schieffer. 2) Case – Schieffer (Neb. 1993) – p868 a) Held: dismisses IIED and clergy malpractice claims for sex with counseling priest. b) Reason: consent and no standard. c) Dissent: (1) Wants to look at how consent was achieved. (2) Would have sent fiduciary duty claim to jury. (3) Most courts avoid doing what dissent advocates b/c do not want to let jury make religious judgments – p875. IIED: 1) Rule: usually barred b/c consent - Schieffer. a) Exceptions: (1) If clergy says he has special training. (2) If P is below age to consent with sexual relations. d. Traditional Torts - Fraud: 1) 2 Approaches: a) A religious org can be held liable for the secular torts of its members, even when religious motivated - Molko. b) Some courts refuse to take “brainwash” cases b/c too hard to draw a line and b/c courts cannot examine truth or falsity of beliefs – dissent in Molko. 2) KEY ISSUES - Impact of Modern Society – p883

1.

b.

c.

66

Is aggressive religious proselytization anathema in a modern liberal society (focus is on privacy interests, individual choice and clear separation of private (religion) and public (secular) acts? b) Are choices about religious doctrine less free than other rational, non-emotional choices? a) 3) Case – Molko (Cal. 1988) – cert denied (US 1989) - p875: a) Held: rev‟d lower court‟s grant of summary judgment for D – P have c/a against church in fraud. b) Reason: (1) Challenge in this case is not to validity of Church‟s teachings but to its concealing its identity in order to bring outsiders in. (2) This is a burden but it is not substantial burden. (3) Compelling govt interest = preventing substantial threat to public safety, peace and order posed by Church‟s fraudulent conduct. (4) No less restrictive means. (5) No ESTB CL problems b/c law has secular purpose. c) Concur/Dissent: (1) Very fine line b/w proselytizing become brainwashing: you cannot separate out the religious and secular elements – thus, this violates FE. (2) Rely on Ballard – courts cannot examine truth or falsity of religious beliefs. (3) Most courts adopt this approach. Religious Institutions and Officers and Criminal Law: a. Rules: 1) Religious and legal identities are separate. 2) Messiah defense does not work. 3) 1A is no defense to criminal laws. Case - US v. Moon (2d Cir. 1983) cert denied (US 1984) – p883: 1) Facts: Moon convicted of filing false income tax returns. Argues the bank accounts are not his but the churches – Messiah defense – no distinction. 2) Held: there is sufficient evidence to affirm conviction. 3) Reason: a) When criminal law engaged, 1A values recede. b) Reject Messiah defense – spiritual/religious and legal identities are separate. c) Govt has secular purpose – collect taxes. d) Court attempts to define religion without making religious judgment. 4) Dissent: a) Worries this holding will have adverse effect on religions where religion and life are inseparable.

2.

b.

3.

Civil Law and Religious Benefits: a. Generally: 1) Equitable power of court lets it achieve things indirectly that it could not do directly b/c of religious quagmire. 2) Tension b/w legitimate interest of state on a secular level and inability of court to grant relief to an individual b/c of religious law. Rule:

b.

67

1) In equity, court cannot force a party to engage in religious behavior (e.g., grant a get after divorce) but may consider whether a get was given in its equity analysis – Schwartz. c. Case – Schwartz (NY S. Ct. 1992) – p889:

Chapter 12: Religion in the Courtroom

A. INTRO: How can and do religious beliefs enter the courtroom? a. Oath taking for veracity. b. Due Process requires a fair and impartial trial – religion might affect this. 2 Important FREs: a. 603: oath or affirmation b. 610: belief in religion is immaterial to W competence to testify and W‟s credibility. 1) Remember at C/L, competence judged by religion – higher being. Rule on CrossX W about affirmation/oath: a. Party cannot crossX a W regarding the decision to affirm rather than to swear in relation to their religious beliefs – US v. Kalaydjian (2d Cir. 1986) – p896.

1.

2.

3.

68

b.

Rationale: 1) FRE 610: There is no distinction b/w crossX W on his religious beliefs (expressly prohibited by 601) and crossX W regarding conduct that is significant only b/c of his religious beliefs (impliedly prohibited by 601). 2) Prevent prejudice on basis of W‟s religious beliefs and prevent jury confusion.

B. JURIES AND RELIGION: Intro: Jury Service and Religion: a. Exemptions from Jury Service: 1) Split among courts as to whether a person whose religious beliefs prohibit jury service is constitutionally exempt from jury service.

1.

2.

b.

Batson Claims:
1) Rule: party may strike juror b/c of religion if believe religion will prevent juror from properly deciding the case or affect the result – State v. Davis (Minn. 1993) cert denied (US 1994) – p901. a) Still an open question: (1) Logic would seem to extend Batson claims to religion. (2) Batson should apply to any classification that requires heightened scrutiny under the E/P clause. b) Rationale: (1) Distinguish from race and gender b/c not a visible characteristic. (2) Not common and flagrant practice.

3.

Challenging Jury Verdicts as Impermissible Based on Religious Belief: Religion may not play a role in sentencing process – general rule. 1) However, jurors may rely on own religious faiths in determining sentences – p910. Bibles in Jury Room: 1) With Court‟s Approval: a) Rule: judge cannot allow a bible to come into jury room to held jury in its deliberations – Jones v. Kemp (N.D.Ga. 1989) – p907. b) Rationale: (1) Bible will become authoritative source to be used by jury in reach verdict. (2) 6A: Bible will undermine “impartial” requirement. 2) Brought in by Juror – generally allowed. Use of Church as courthouse is okay Religious Influence on Jury Verdicts 1) General Rule: religious influence does NOT taint jury verdict. 2) Specific Rule: juror can use prayer to determine guilt b/c prayer is NOT an outside influence under FRE 606(b) and voir dire can protect – State v. DeMille (Utah 1988) 911.

a.

b.

c. d.

69

3) Rationale: to deny jurors the right to rely on their religious beliefs would violate jurors‟ FE by impose a religious test for jury service. 4) Counter-argument: a) Violates 6A right to be tried on the facts of the case. b) Distinguish b/w divine indication of right result (unconstitutional) and divine guidance on reaching the right result by applying law to evidence (constitutional). c) But won‟t these determinations violate juror‟s 1A rights.

C. JUDGING BY RELIGIOUS FAITH: Rule: judge cannot take his own religious views into account when sentencing - violates Due Process – US v. Bakker (4th Cir. 1991) – p914. a. Rationale: judges cannot use court as pulpit for religious beliefs.

1.

D. REFERENCES TO RELIGION BY LAWYERS: Prosecutors cannot inject religion into closing arguments. a. General rule: relying on any religious writing in support of death penalty is per se reversible error and may subject violators to disciplinary action – Chambers (Pa. 1991) cert denied (US 1992) – p917. 1) Any reference to Bible is strongly discouraged and veiled references are barely tolerated. b. Rationale: makes jury think Bible is independent source of law to be used in determining verdict. c. Counter argument: 1) Stick with usual standard = whether his comments would arouse jury to such an extent that it would be impossible for jury to impose a sentence based on the consideration of relevant evidence according to the standards of the statute. Other Approaches a. Some courts discourage them but do not say they are per se reversible error b. Some courts allow references to religious texts.

1.

2.

E. LAWYERS AND RELIGIOUS GARB: Rule: courts can forbid priest attys from wearing religious garb – LaRocca (2d Cir. 1981) – p921: a. Rationale: 1) Substantial burden on FE outweighed by compelling govt interest in fair/impartial trial. a) Clerical garb will impact jury by: (1) Improperly prejudice jury against atty‟s client (b/c of atty‟s religion); OR (2) Improperly advantage the party (by give greater veracity than atty deserves). 2) Voir dire is not effective screening mechanism. 3) Attys give up rights to attain privilege of being an atty.

1.

70

2.

In application: rights of D will trump – whenever garb will adversely influence the jury, court can prohibit. No E/P violation when compared to W being allowed to wear religious garb in courtroom: a. Rationale: juries have to judge credibility of W – do not have to judge atty‟s credibility. Later problems with religions that cannot remove their garb – Seiks?

3.

4.

F.

CONFIDENTIAL COMMUNICATIONS TO CLERGY: Priest-Penitent Privilege: a. Rule: there is a priest-penitent privilege (under FRE 501, privilege is determined by state‟s C/L) 1) Although there was no such privilege at C/L most courts recognize – find in state’s C/L somewhere. b. Scope: 1) Applies to communications 2) Made to clergyperson a) Who = clergyperson? b) Nun – yes. 3) In his spiritual and professional capacity 4) With a reasonable expectation that communication will be kept confidential. a) Presence of third party does not vitiate privilege Application: a. Nearly every state recognizes. b. Extends to non-communicants. c. Extend to group counseling sessions. d. Interpreted narrowly Whether priest has to report child abuse that he learns of in confessional, etc is still an OPEN QUESTION.

1.

2.

3.

G. ISSUES OF RELIGION ON CRIMINAL PROSECUTION: Religious activity is volitional and thus not of appropriate nature to constitute habit evidence.

1.

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Chapter 13: Defining Religion

A. INTRODUCTION: 1. Summary: a. Court Moves from Theistic, Content-Based Definition of Religion to a Functional, Effects-Based Definition. 1) Focus is on sincerity of beliefs rather than content. Courts generally do NOT like to define religion. 1) Court has not offered a constitutional definition of religion. Courts cannot try the truth or falsity of religious doctrine. Defining Religious Belief in Conscientious Objector Context: 1) Section 6(j) of the Selective Service statute defines religious belief and training as “an individual‟s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code. 2) Test: does the claimed belief occupy the same place in the life of the possessor (e.g., objector) as an orthodox belief in God holds in the life of one clearly qualified for exemption? Defining Religious Belief Generally 1) Govt cannot prefer theism to pantheism or atheism – thus, “religion” must be greater than “relation to his Creator”. 2) Three Factor Test: a) Demonstrates “ultimate concerns”.

b.

c. d.

e.

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b) Shows a comprehensive system. c) Contains “surface signs” of religion such as rites or meetings. 3) Problems with Test: f. Big Questions To Keep in Mind: 1) Can or should courts define religion? a) Isn‟t any attempt at a definition a violation of the religion clauses b/c courts is imposing its value judgments on what is or is not religious? 2) If courts can define religion, how will courts apply the definition? 3) If religion is tied to liberty, how do we deal with conundrum that this concept of liberty allows individual actions and beliefs that are outside the legal system? 4) What historical circumstances are influencing the definition of religion?

2.

History a. 3 Aspects of Framers’ Definition of Religion: 1) Theistic, Protestant-centric definition. 2) House of worship. 3) Did not include atheism or irreligious. Early Court’s Attempts at a Definition: “The Term religion has reference to one‟s views of his relations to his Creator . . . .” [see Davis v. Beason (US 1890) – p947]. 1) Limited to belief systems that recognize a creator. 2) Distinguishes b/w cults and religions – cults not covered under 1A. Two Major Challengers to Court in 20th Century: 1) Conscientious objectors. 2) Jehovah‟s Ws: intellectual and religious outsiders in belief and activity.

b.

c.

3.

Challenges for Coming Up with a Legal Definition of Religion a. Judeo-Christian traditions no longer a dominant force in US society: 1) US is no longer “a Christian nation”. 2) Plurality of religions. US Becoming Dramatically Secular Society: 1) Change in public‟s view of the role of religion in everyday life: is religion merely personal or pervasive in everyday life? 2) Rise of other very powerful ideologies has replaced religion. *** Effect of Legal Realism Theory: 1) Court will avoid definitions. 2) Court look at things from a case-by-case pragmatic basis: leaves Court free to apply the law in the context of the facts and develop law as context demands. 3) Example of flexibility = Lemon test. Dual Definition Problem 1) Do We Need Different Definitions for ESTB and FE? 2) Very hard to find a definition that is neither under- or over-inclusive. Historical Context – Political Judgment Influencing Definition: 1) Court wanted to define religion in a way that did NOT include Communist ideology. 2) Opposition to Vietnam War influences definition of conscientious objector statutes in 1960s.

b.

c.

d.

e.

73

4.

Even Though Something is Defined as Religious, It May Not Receive 1A Protection: a. Belief/Act Distinction Hygrade Provision Co. v. Sherman (US 1925) – Sutherland - p950: a. Facts: P challenged kosher laws as unconstitutional. b. Held: Court upheld b/c “kosher” has a generally accepted meaning and there was intent requirement. c. Significance: 1) Sets decision-making mode: shows lengths Court can and will go to AVOID deciding a religious issue when possible. 2) Leaves unresolved question of whether any judicial attempt to define “kosher” would constitute a violation of the ESTB. Using Dictionary Definition to Define Religion: shows broadening of judicial definition of religion. US v. Ballard (US 1944) – Douglas - p953: a. Facts: leaders or I Am movement allege that criminal fraud charges against them are unconstitutional. b. Held: courts and juries may not inquire into a party‟s religious beliefs. c. Reason: 1) Did Jesus commit fraud problem: once courts gets into the business of characterizing religious beliefs b/c of their credibility than court is in business of condemning every religion (b/c all religious beliefs are untenable, unprovable). 2) Religion is what is beyond our personal and natural experiences. d. CJ Stone’s dissent: no immunity from criminal prosecution. e. Jackson’s dissent: 1) Sincerity of belief and content of belief are NOT separable: “if we try religious sincerity severed from religious veracity, we isolate the dispute from the very considerations which in common experience provide its most reliable answer” (p958). 2) Barb at judges: “Religious symbolism is even used by some with the same mental reservations one has in teaching of . . . dispassionate judges.” (p958). 3) Members of this cult get what they pay for. 4) “Prosecutions of this character easily could degenerate into religious persecutions.” f. Significance: 1) Court limits any consideration of the religiosity of belief to its sincerity. 2) This is the most guidance from the Court on how to define.

5.

6.

7.

B. SELECTIVE SERVICE AND RELIGIOUS CONSCIENTIOUS OBJECTION: 1. Test: does the claimed belief occupy the same place in the life of the possessor (e.g., objector) as an orthodox belief in God holds in the life of one clearly qualified for exemption? a. It is not determinative whether person claiming religious belief considers it religious: 1) Also includes moral and ethical beliefs. b. Limited Scope: 1) NOT a constitutional interpretation. 2) Thus, this definition of religion is limited to conscientious objector context. c. Problem: still defined in reference to traditional religions. US v. Seeger (US 1965) – Clark – p963: a. Facts: 2 conscientious objectors with not traditionally religious based beliefs. b. Held: both objectors fall within the statute‟s definition of religion.

2.

74

c.

d.

e. f.

1) Truly Held Personal Belief Test: does the claimed belief occupy the same place in the life of the possessor (e.g., objector) as an orthodox belief in God holds in the life of one clearly qualified for exemption? Reason: 1) Congress amended text of statute from “God” to “Supreme Being”: thus, theism is no longer a requirement in finding religion 2) Thus, 6(j) adopts BROAD definition of religion: a) Religious belief can be purely ethical. b) Can be internally derived. 3) Court then goes through a number of religions to show that the definition works. Douglas’ concur: unclear whether his comment - that he “would attribute tolerance and sophistication to the Congress, commensurate with the religious complexion of our communities” (p972) - is tongue and cheek. Scope of Holding: many say this definition is limited to statutory interpretations (b/c Court placed so much emphasis on Congress‟ amendments to text of statute). Significance: 1) Clark‟s majority opinion provides a thorough articulation of the effects-based definition of religion (p963).

3.

Welsh v. US (US 1970) – Black – plurality – p976: a. Facts: a conscientious objector struck out the word “religious” on his form. b. Held: this individual still fell within statute‟s exemption. c. Reason: applies to moral and ethical beliefs. d. Harlan’s concur: 1) Disagrees with removal of theism requirement. 2) Congress had no intent to expand “religion” to what majority says. 3) Says this reflects majority‟s objection to Vietnam War. e. White’s dissent: says majority redrafted the statute to reflect its personal beliefs on Vietnam War rather than what Congress intended. f. Significance: Expands definition of religion in 6(j) to include moral and ethical beliefs.

C. DEFINING RELIGION AFTER SEEGER AND WELSH: 1. Three Factor Test: a. Three Indicators of Religion: 1) Nature of belief addresses ultimate or fundamental question. 2) System of ideas is comprehensive rather than an isolated teaching. 3) Contains formal, external or surface signs analogous to recognized religions (e.g., rites or meetings). Example - Big Bang Theory is NOT Religious b/c: 1) Is not comprehensive. 2) No surface signs of religion. But Does This Definition Include Ideologies – Open Question

b.

c. 2.

Malnak v. Yogi (3d Cir. 1979): a. Significance: 1) Most comprehensive judicial addressing of definition of religion. 2) Outlines 3 Indicators of Religion: 3) Outlines 4 Categories of Previous Supreme Court Cases: a) Traditional Definition of Religion - theistic:

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(1) Framers. (2) Davis v. Beason. b) School Prayer Cases: provide very little insight into a definition. c) Conscientious Objector Cases – Seeger and Welsh: show broader reading. d) Cases Suggesting a New Constitutional Definition: (1) Torcaso v. Watkins shows Court is adopting non-theistic definition. (2) New definition is definition by analogy. 4) Shows that courts now view religion from functional, effects-based perspective. 3. Courts Now View Religion From Functional Perspective: a. Extreme position: some courts have gone so far as to label self-described “secular” activity as “religious” if it meets the indicators.

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