I need the following requirements
- 12-point font.
- Page numbers.
- Times New Roman.
- 1-inch margins.
- At least 4 pages, but no more than 5 pages.
- Citation page/Bibliography, and in text citations (you can use whatever citation style you prefer e.g., MLA, APA etc.).
- Use appropriate writing style e.g., transitions, grammar, flow of ideas etc.
Some things to use and/or avoid in academic writing: - First person – so no “I argue”.
- No contractions – “do not” instead of “don’t”.
- Supreme Court and not SCOTUS.
- Make sure to transition between ideas.
- If quoting, don’t quote more than two lines and make sure to include a page number for the quote. Quoting should also be minimal.
- Avoid citing Wikipedia and Oyez.
The paper should address the following questions:
Religion. Trace not only the position of the Supreme Court, but also identify how this position has changed over time. What factors have affected this change? When discussing factors think about the ‘ism* that was used by the Court as the Court provides a rational for deciding the case in the way that it did. You should include at least two (2) Court cases and discuss them in detail, your evaluation should also include a discussion of a concurring opinion and/or a dissenting opinion.
The two Court cases are: See below: page 5 & 6
1) Lemon v. Kurtzman (1971)
2) Sherbert v. Verner (1963)
Reference/citing from:
https://law.justia.com
https://www.supremecourt.gov/opinions/opinions.aspx
https://www.law.cornell.edu/supct/index.html On the Docket, Northwestern University http://docket.medill.northwestern.edu/
*isms:
6 Ways to Understand Constitutional Interpretation:
- Originalism
• Constitutional provisions mean what they meant when they were ratified; original intentions; - Textualism
• Emphasis on the specific language of the Constitution; what is written (language) and not trying to guess what was meant; can place in historical context to evaluate common usages at time of ratification - Doctrinalism
• Precedent; analogies; development of time over time; stare decisis - Structuralism
• Look at basic principles underlying the structure of the Constitution ie “SOP,” “democracy,” or “federalism” – not stated explicitly - Prudentialism
• Costs and benefits of different constitutional policies; decision makers should choose the interpretation w/the best consequences - Aspirationalism
• Fundamental principles of justice underlying the Constitution; what general principles best justify American constitutional practice
** 6 Ways to interpret the Constitution:
In breakout groups (randomly assigned)
• Find evidence in each group for the assigned” way” that the justice interprets the Constitution (e.g. in the opinion, what evidence is there to support the assigned constitutional interpretation?) - Originalism – Justice Thomas’ dissent; Hamdi (2004)
- Textualism – Justice Black; Tinker v. Des Moines (1969)
- Doctrinalism – Justice Breyer; Randall v. Sorrell (2006)
- Structuralism – Justice Scalia; Printz v. US (1997)
- Prudentialism – Justice Jackson; Korematsu v. US (1944)
- Aspirationalism – Justice Kennedy; Lawrence v. TX (2003)
- *** When to override doctrinalism
a) Justice Thomas’s dissent; Nevada v. Hall (1979)
b) Justice Alito’s majority opinion; Janus v. American Federation of state, County and municipal employees (2018)
Lemon v Sherbert Test:
Two Supreme Court of the US Test Lemon Test (secular legislative purpose)
3-Prong – laws dealing with religious establishment (current test)
- The statute must not result in an “excessive government entanglement” with religious affairs (Entanglement Prong)
• Factors to consider:
Character and purpose of institution benefited
Nature of aid the state provides
Resulting relationship between government and religious authority - The statute must not advance nor inhibit religious practice (Effect Prong)
- The status must have a secular legislative purpose (Purpose Prong)
• If any prong is violated, the gov’ts action is deemed unconstitutional under Establishment Clause of the 1st Amendment
• Recent application – Santa Fe Independent School District v. Doe (2000)
Sherbert Test (balancing/valid compelling interest, least restrictive)
2- Prong – to determine whether gov’t had violated an individual’s constitutionally-protected right to free exercise of religion
- Investigate whether gov’t had burdened the individual’s free exercise of religion
• If government confronts an individual with a choice that pressures the individual to forego a religious practice, whether by imposing a penalty or withholding a benefit, then the government has burdened the individual’s free exercise of religion - Under this test not all burdens placed on religious exercise are unconstitutional. If first prong is passed, the government may still constitutionally impose the burden on the individual’s free exercise if government can show:
• A. That possesses some compelling state interest that justifies the infringement (the compelling interest prong) and
• B. And, that no alternative form of regulations can avoid the infringement and still achieve the state’s end (the narrow tailoring prong)
• Recent application – Gonzales v. Uniao Do Vegetal (UDV) (2006)
Free Exercise of Religion
• The principle of freedom from governmental coercion in choosing a religion or no religion is NOT ABSOLUTE
• For example: individuals may be prosecuted for certain religious practices (handling poisonous snakes or taking illegal drugs)
• And compelled to comply with regulations and laws that contravene their religious beliefs
• But a law may not discriminate on the basis of religion or have a religious purpose:
• Forbid Mormons from practicing polygamy – Reynolds v. US (1879)
• Required smallpox vaccinations – Jacobson v. MA (1905)
• Zucht v. King (1922) – school system can refuse admission to a student who failed to receive a required vaccination
• By 1963, 20 states had school vaccination laws
• 2015 – 47 states allow religious exemptions (w/some requiring proof of religious membership)
• CA and West Virginia do not permit religious exemptions
• Only 15 states allow personal philosophical opposition to vaccination as a form of exemption
• VT and CA eliminated this exemption in 2015 – Gov. Jerry Brown signs contentious CA bill (June 2015)
• Could require all businesses to close because it has a secular basis (just a day of rest) – Braunfeld v. Brown (1961)
• Prohibited the distribution of handbills and solicitations on fairgrounds – Heffron v. International Society for Krishna Consciousness (1981)
• When confronted with free exercise claims, the Court may not be able to avoid the issue of what a religion is?
• Who should define religious beliefs—the gov’t, the Court, or the individual?
• When upholding a congressional statute banning and punishing polygamy, which Mormons practiced as a religious belief, Reynolds v. US (1879), Waite observed:
• The word ‘religion’ is not defined in the Constitution we must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted”
• Wait found no religious support for the practice of polygamy when he evaluated the founding
• The statute has the secular purpose of enforcing the standards of “civilized society.”
• In Jefferson’s “bill for establishing religious freedom” allowing gov’t to interfere when [religious] principles break out into overt acts against peace and good order”
• Confronts this problem in US v. Ballard (1944) – involves the prosecution of the leaders of the “I Am” religion for mail fraud
• Ballard claimed to be the leader and that he had the power to cure diseases
• At trial the validity of this claim wasn’t the issue…the Court had to determine only whether Ballard sincerely believed this claim, or instead were deceitful and guilty of misrepresentations
• Douglas – “men may believe what they cannot prove…they may not be put to the proof of their religious doctrines or beliefs…the 1st Amend does not select any one group or any one type of religion for preferred treatment”
• While the government may prosecute religious leaders and their followers for crimes such as tax evasion, fraud, misrepresentation, and child abuse
• The Court has suggested that it may be futile for the gov’t to try to define religion for free exercise purposes
Lemon v. Kurtzman 403 US 602 (1971) Court case
Facts:
• Heard concurrently w/2 others, Earley v. DiCenso (1971) and Robinson v. DiCenso (1971)
• Controversies involved over laws in PA and RI
• PA – a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools
• RI – statute provided direct supplemental salary payments to teachers in non-public elementary schools
• Each statute made aid available to “church-related educational institutions”
Question:
• Did Rode Island and Pennsylvania statutes violate First Amendment’s Establishment Clause by making state financial aid available to “church- related educational institutions”?
Legal provision:
• Establishment of Religion (First Amend); Pennsylvania and Road Island statutes
Decision: UNANIMOUS
• 8 votes for Lemon, 0 vote(s) against
• CJ Burger (O), Black, Douglas (C joined by Black), Harlan, Brennan (C), Stewart, White (C and D), Blackmun, Marshall (files separate statement)
Yes.
• Parochial school system was “an integral part of religious mission of Catholic Church,” and Act fostered “excessive entanglement” between government and religion, thus violating Establishment Clause
• Both statutes are unconstitutional under Religion Clauses of First Amendment, as cumulative impact of entire relationship arising under statutes involves excessive entanglement between government and religion
The Lemon Test
• SCOTUS articulates a three-part test for laws dealing w/religious establishment:
- Statute must not result in an “excessive government entanglement” w/religious affairs (Entanglement Prong)
• Factors to consider:
• Character and purpose of institution benefited
• Nature of aid the state provides
• Resulting relationship between gov’t and religious authority - Statute must not advance nor inhibit religious practice (Effect Prong)
- Statute must have a secular legislative purpose (Purpose Prong)
• If any prong is violated, gov’ts action is deemed Unconstitutional under Est. Clause of 1st Amend
Aftermath:
• Conservative Justices (Scalia and Thomas) scrutinize application of Lemon test
• SCOTUS has applied it as recently as 2000 (Santa Fe Independent School Dist. v. Doe)Sherbert v. Verner 347 US 398 (1963)
Facts:
• Adeil Sherbert (member of the Seventh-day Adventist Church)
• Worked as a textile-mill operator
• Two years after her conversion to that faith, her employer switched from a five-day to a six-day workweek, including Saturdays
• She refused to work on Saturday, the Sabbath Day of her faith, and was fired from her job
• She couldn’t find any other work and applied for unemployment compensation
• SC Employment Security Commission denied her benefits
• Finding unacceptable her religious justification for refusing Saturday work even though the state’s ineligibility provisions exempted anyone, whether religious or not, “for good cause”
• State trial court and SC Supreme Court affirms Employment Security Commission’s decision
Question:
• Did the denial of unemployment compensation violate the First and Fourteenth Amendments?
Legal provision:
• Free Exercise of Religion
Decision:
• 7 votes for Sherbert, 2 vote(s) against
• Brennan (O), Warren, Black, Douglas (C), Clark, Stewart (C), Goldberg
• Harlan (D) and White joined.
• The gov’t’s denial of Sherbert’s claim was an Unconstitutional burden on the free exercise of her religion
• Majority opinion – creates the Sherbert Test
• Also known as the “least drastic means test,” which is an exception or alternative to the strict state neutrality
• Determines whether gov’t action runs afoul of the Free Exercise Clause
• Denial of Sherbert’s unemployment claim represents a substantial burden upon her
• Even if that burden takes the form of denial of a privilege to unemployment compensation, instead of violating compensation she was entitled to by right, it still effectively impeded her free exercise of her religion
• “to condition the availability of benefits upon this appellant’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties”
• Opinion – did not consider the Equal Protection argument since it had already ruled in Sherbert’s favor on First Amend grounds
Sherbert – Douglas and Stewarts Concurring Opinions• Douglas
• The issue was not the degree of injury to Sherbert
• BUT SC’s denial of unemployment on the basis of her beliefs
• Not about individual action, but gov’t action, and under what basis the gov’t could deny someone benefits
• Stewart
• Agreed w/the result, but not in the reasoning of SCOTUS
• Did not dismiss the Establishment Clause issue as majority did
• Instead, he identified as a “double-barreled dilemma” between Free Exercise Clause protection of Sherbert’s actions and — as it had been interpreted, wrongly in his view, by the court — Establishment Clause prohibition of such protection
• He also disagreed with the majority’s claim that Braunfeld (1961), was distinguishable from Sherbert
• It could require all businesses to close because it has a secular basis (just a day of rest)
Sherbert - Harlan’s Dissenting Opinion• Formalist reading of the relevant law
• Argues:
• The Commission denied Sherbert unemployment based on the same reason they might any secular claimant, that she was not “available for work” because of a private decision she had made
• Rejects majority opinion
• Free Exercise Clause only required neutrality toward religion in this case, which would not include exempting Sherbert, though the Constitution would permit legislature to create such an exemption
Sherbert Test:
• A two-prong test for courts to use in determining whether the government has violated an individual’s constitutionally-protected right to the free exercise of religion
- The first prong investigates whether government has burdened the individual’s free exercise of religion
• If government confronts an individual with a choice that pressures the individual to forego a religious practice, whether by imposing a penalty or withholding a benefit, then the government has burdened the individual’s free exercise of religion - However, under this test not all burdens placed on religious exercise are unconstitutional. If the first prong is passed, the government may still constitutionally impose the burden on the individual’s free exercise if the government can show:
• A. That it possesses some compelling state interest that justifies the infringement (the compelling interest prong) and
• B. And, that no alternative form of regulation can avoid infringement and still achieve the state’s end (the narrow tailoring prong)
• In Gonzales v. Uniao Do Vegetal (UDV) (2006)
• Roberts Court unanimously held that the Religious Freedom Restoration Act (RFRA) permitted federal courts to make exceptions for religious minorities on a case-by-case basis from generally applicable federal laws on the use of drugs, if used in a “sincere exercise of religion”
• Use of a Schedule 1 drug in a sacramental tea in a religious ritual was protected under the First Amend.
• Roberts reasoned:
• Peyote, a hallucinogen, had been made an exception to the Controlled Substances Act (CSA) for the use by Native Americans for 35yrs
• Permitting the importation of hoasca (pronounced wass-ca) for use by a small sect originating in the Amazon Rainforest, said: “if such use is permitted…for 100,000s of native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the [O Centro Espirita Beneficente Uniao do Vegetal] who want to practice theirs
• Rejects the Bush Admin arguments that it had compelling governmental interest in forbidding the importation of hoasca based on:
• Protecting the health of users
• Preventing the diversion of the drug to recreational users and
• Complying with the 1971 US Convention on Psychotropic Substances
• Free exercise clause does not exempt religious minorities from neutral and generally applicable laws that impose indirect burdens, but only forbids direct religious discrimination, while providing no basis for compelling governmental support for religion even when such support has been allowed over (dis)establishment clause objections.
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