Introduction and American Constitutionalism in Historical Perspective Introduction



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Fair Trial

      • Nebraska Press Ass’n v. Stuart (1976) (Burger)

        • insufficient showing to allow prior restraint in order to protect right to fair trial (concurrences would even ban such prior restraints absolutely)


12. Campaign Financing: Is Money Speech?

  • Theory: Politics and Economics

    • Rawlsian view: must separate politics and economics

      • while we may allow economic inequality for economic reasons, we should not allow economic inequality to affect political equality

    • Libertarian view: cannot distinguish between political and economic inequality because it undermines liberty of persons

  • Cases

    • Buckley v. Valeo (1976): Federal Campaign Act of 1971

$1000 contribution limit

$1000

independent

expenditures

limit


limits on candidate personal expenditures

limits on aggregate campaign expenditures

disclosure of contributions

public financing for campaigns

constitutional

not constitutional

not constitutional

not constitutional

constitutional

constitutional




      • contribution limits constitutional, expenditure limits are not

      • speech: concludes that money is speech and not conduct (Congress thought it was conduct and would survive O’Brien test; lower courts thought it survived as a time, place, and manner regulation)

      • compelling state interest:

        • political equality is not a legitimate state purpose

        • corruption is a legitimate state interest, but it is only served by contribution limits

      • leaves a loophole for PACs

    • Nixon v. Shrink Missouri Government (2000) (Souter)

      • upheld Missouri’s $1000 contribution limit—contribution limits given great deference

    • FEC v. Colorado Republican Federal Campaign (2001) (Breyer, Souter)

      • limits on a party’s coordinated expenditures constitutional

      • analyzed under the standard they apply to contribution limits (‘closely drawn’ to combat a ‘sufficiently important’ government interest in combating corruption)

    • Austin v. Michigan Chamber of Commerce (1990) (Marshall)

      • upheld restriction on independent campaign expenditures by corporations (the same restriction that it said could not be applied to political organizations in MCFL)—“unique legal and economic characteristics of corporations)

    • Citizens Against Rent Control v. Berkeley (1981) (Burger)

      • contribution limits on ballot measures are invalid (no corruption interest)

    • McConnell v. FEC (2003) (Stevens, O’Connor)

      • challenge to McCain-Feingold law intended to close the soft money issue advocacy loophole

      • applies the same less rigorous scrutiny applies to contribution limits and finds them valid


13. First Amendment and Disclosure (Free Speech and Associational Liberty)

As Applied

Overbroad

Unconstitutional

Constitutional

Unconstitutional

Constitutional

NAACP v. Alabama

Bryant

Shelton

Buckley




  • NAACP v. Alabama (1958) (Harlan)

    • held that court could not require release of NAACP membership lists

      • unconstitutional as applied, could potentially apply to a criminal organization

    • privacy protects associational liberty, which protects free speech

  • Bryant v. Zimmerman

    • KKK can be restricted because they have a criminal ideology and violence is not constitutionally protected

  • Shelton v. Tucker (1960) (Stewart)

    • struck down law requiring teachers to disclose all organizations of which they have been a member for the last five years

  • Gibson v. Florida (1963) (Goldberg)

    • Florida committee investigating communist activity could not require disclosure of NAACP membership lists

  • Buckley v. Valeo (1976)

    • holds that the disclosure requirements are not unconstitutional as applied to traditional American parties

    • Brown v. Socialist Workers (1982) (Marshall): struck down the disclosure limits as applied to a minor political party

  • NAACP v. Button (1963) (Brennan)

    • held Virginia law against improper solicitation unconstitutional as applied to NAACP; could now be struck down under Virginia Pharmacy as well



V. Religious Autonomy




Free Exercise

Anti-Establishment

1. Is there coercion or an economic detriment to exercising your belief?:

2. If yes,

a. belief is absolutely protected

b. action based on belief can forbid if compelling secular state interest



Lemon Test:

1. secular state purpose

2. does not aid or inhibit religion

3. does not lead to excessive entanglement with religion

a. administration

b. need to distinguish religious/non-religious




1. Background

  • Historical Background

    • European Religious Wars

      • wars convinced great philosophers of various religions that toleration necessary (Erasmus, Spinoza, Locke, Bayle)

      • Locke: legitimate state power must be limited to compelling state secular purposes

    • Jefferson, Madison and Virginia Bill for Religious Liberty

      • Jefferson: must not only protect religious liberty but ensure that no state tax money whatsoever be used for religion

      • central right to conscience must be protected subject to clear and present danger test

      • Madison: in arguing for first amendment, argued that when religion becomes allied with political power it becomes corrupted

    • Most important: religion is the heart of the free speech clause because it is entirely non-utilitarian (Whitney concurrence)

  • Interpretive Issues

    • universal compulsory education, battles over science and religion, traditional public morality now recognized as religious

  • Jurisprudential Views

    • Majority and Minority Views on Religion

      • Majority (Black): the key is voluntarism and separatism—advancement of church can only come from voluntary support and religion and government must be kept entirely separate

        • cannot prefer religion to irreligion

      • Minority: non-preferentialism

        • 1st amendment only requires that government not prefer one religion to another, not that there be a wall of separation between all religion and the state

        • Souter has argued against this in Lee v. Weisman and Rosenberger dissent:

          • drafting of 1st amendment showed it was not simply non-preferentialist

    • Incorporation: Court has held that religion clauses incorporated against states (Everson)

    • Conflict Between Free Exercise and Anti-Establishment

      • Court has refused to say that one prevails over the other

      • one suggestion for how to reconcile them: free exercise is about people with already established beliefs; anti-establishment is about preventing government from coercing people to change their beliefs


2. The Free Exercise Clause

  • Test: coercion, belief is absolutely protected, can only coerce action if compelling secular purpose

  • Draft Deferment Cases (definition of religion: very broad—extends to many sincerely held convictions) (mandatory exemptions not required, these cases involve how broad the exemption has to be once it is offered)

    • United States v. Seeger (1965) (Clark)

      • not required to believe in a Supreme Being to get religious exemption: to interpret statute otherwise would make it unconstitutional

    • Welsh v. United States (1970) (Black)

      • cannot draw a line between theistic and non-theistic beliefs

      • Harlan concurrence: cannot distinguish between religious and secular beliefs

    • Gillette v. United States (1971) (Marshall)

      • Congress can constitutionally refuse to exempt those who do not oppose all wars (Catholic “just war” dissenter)

    • United States v. Ballard (1944) (Douglas)

      • cannot submit the truth or falsehood of religious beliefs to a jury in a mail fraud prosecution, can only submit the “sincerity” of the beliefs

  • Non-Neutral Laws

    • Torcaso v. Watkins (1961)

      • struck down requirement that all holders of public office declare a belief in God

    • McDaniel v. Paty (1978) (Burger)

    • Babalu v. City of Hialeah (1993) (Kennedy)

      • struck down law banning animal sacrifice because while appeared neutral on its face it was clearly aimed only at Santeria

      • you could in theory have legitimate state purposes but the legislative history makes clear that it is a violation of religious freedom

    • Locke v. Davey (2004) (Rehnquist)

      • exclusion of students studying devotional theology from state scholarship program does not violate 1st amendment

  • Neutral Laws: Are Religious Exemptions Constitutionally Required?

    • Reynolds v. United States (1878) (Waite)

      • upheld application of bigamy laws to Mormons

      • compares law to human sacrifice; 1st amendment only applies to belief not action

    • Cantwell v. Connecticut (1940) (Roberts)

      • narrowed somewhat: free exercise may require some accommodations for action as well

    • Braunfeld v. Brown (1961) (Warren)

      • rejected free exercise challenge to Sunday closing law: Court found sufficient compelling secular state purpose in having a joint day of rest

    • Sherbert v. Verner (1963) (Brennan): major case requiring free exercise exemptions

      • cannot deny employment benefits to Seventh Day Adventist who would not work on Saturdays because it puts economic burden on her free exercise

      • they try and distinguish Braunfeld and argue that any establishment concern is de minimis (people will not convert)

    • Wisconsin v. Yoder (1972) (Burger)

      • Wisconsin cannot require Amish parents to send their children to school after the 8th grade; state interest is de minimis

      • this is greatest extension of free exercise, though says would not extend it to people with mere philosophical beliefs like Thoreau

      • Douglas’ dissent: notes conflict of interest between state and children—beginning of recognition of children having rights separate from their parents

    • United States v. Lee (1982) (Burger): begin to reject free exercise claims

    • Goldman v. Weinberger (1986) (Rehnquist)

      • state interest in uniformity trumps interest of practicing Jew in wearing his yarmulke with his military uniform

    • O’Lone v. Estate of Shabazz (1987) (Rehnquist)

      • rejected free exercise claim of Muslims in prison after applying a usual rationality standard

    • Bowen v. Roy (1986)

      • rejected free exercise claim for exemption from requirement that applicants for AFDC be identified by SS#s

    • Lyng v. Northwest Indian (1988) (O’Connor)

      • did not apply heightened scrutiny and rejected free exercise claim of Indian tribes again Forest Service plan to build a road through area used by tribes for religious rituals

    • Employment Division v. Smith (1990) (Scalia)

      • rejected free exercise challenge by members of Native American Church denied unemployment benefits because they were fired for smoking peyote

      • Scalia says he is overruling nothing but assumes that drug laws have a compelling secular state purpose and exemptions can be obtained through political process

      • response to Smith: Congress responded with Religious Freedom Restoration Act, but Court struck it down as a violation of Marbury

what the fuck is the Wooley case???
3. The Anti-Establishment Clause

  • School Policy (insert later)

  • Released-Time Cases

    • McCollum v. Board of Education (1948) (Black)

      • on-site release time to allow students to attend religious classes unconstitutional (no secular purpose, entangles state with religion)

    • Zorach v. Clauson (1952) (Douglas)

      • off-site release time is acceptable

      • dissent: they are using the compulsory education hours of the state to get children into religious classes

  • School Prayer Cases

    • Engel v. Vitale (1962) (Black)

      • non-denominational prayer in school, even voluntary is unconstitutional

      • while may need showing of coercion for free exercise violation, no coercion necessary for an establishment clause violation

    • Abington School District (1963) (Clark)

      • reading of the psalms and the Lord’s Prayer is struck down as unconstitutional

    • Wallace v. Jaffree (1985) (Stevens)

      • found moment of silence unconstitutional because of evidence that it had been added as a way to return to voluntary prayer in schools

    • Lee v. Weisman (1992) (Kennedy)

      • non-denominational prayer at high school graduation unconstitutional

      • concern about peer pressure even in high school students

      • concurrence: violation of establishment clause not predicated on coercion

    • Santa Fe v. Doe (2000) (Stevens)

      • allowing students to choose speaker for football games unconstitutional where it is clear that the intention was to preserve a state-sponsored religious practice

    • Good News Club v. Milford Central School (2001) (Thomas)

      • not allowing a student religious club to use facilities made available to other groups constitutes impermissible view point discrimination

  • Stone v. Graham (Ten Commandments) (1980)

    • posting of Ten Commandments in public school classrooms unconstitutional despite fact that purchased with private funds and presence of plaque saying it was for a secular purpose because in fact there is no possible secular purpose

  • Elk Grove v. Newdow (2004) (Rehnquist) (Under God)

    • concurrence would have found standing and reached the merits and found no establishment clause violation; O’Connor noted that the pledge did not violate her endorsement test

  • Epperson v. Arkansas (1968) (Fortas) (Evolution)

    • cannot forbid teaching of evolution because it violates establishment clause neutrality requirement (cannot single out one thing and say it cannot be taught because it conflicts with a particular religious viewpoint)

  • Edwards v. Aguillard (1987) (Brennan) (Evolution)

    • struck down law requiring that wherever evolution taught, creationism must also be taught: gives creationism a privileged place

  • McGowan v. Maryland (1961) (Warren)

    • Sunday closing laws do not violate anti-establishment because they no longer have a religious purpose

  • Marsh v. Chambers (1983) (Burger)

    • legislative prayer does not violate anti-establishment because we’ve been doing it a long time and it is not part of the “fabric of society”

    • did not apply Lemon test

  • Christmas Displays

    • Lynch v. Donnelly (1984) (Burger)

      • Christmas crèche display along with Santa Claus, reindeer, etc. does not violate anti-establishment because it is now predominantly secular in meaning

      • O’Connor concurrence: appropriate inquiry under purpose prong of Lemon is whether there is endorsement of religion

      • Dissent: calling the crèche secular demeans religion

    • Allegheny County v. ACLU (1989) (Blackmun)

      • freestanding display of a nativity scene is unconstitutional but crèche alongside Menorah is allowed: majority adopts O’Connor’s endorsement test

  • Recent Ten Commandments Cases

    • McCreary v. ACLU (2005) (Souter)

      • purpose is a legitimate basis for enquiry in determining establishment clause violations, and can take into account context and history of the display: history of display that started out as the Ten Commandments alone shows that purpose is not secular

    • Van Orden v. Perry (2005) (Rehnquist)

      • monument of Ten Commandments on capitol grounds along with other things is not a violation because history does not raise the same concerns about non-secular purpose

  • Financial Aid to Religious Institutions: focus on breadth of class and “private choice”

    • Everson v. Board of Education (1947) (Black)—incorporation case for religion clauses

      • held that “no tax large or small” can be levied to support religious institutions, but that law funding transport to religious schools (among others) was constitutional

      • says that in this case can identify a distinct secular health and safety purpose and to that extent can lift the wall of separation

    • Board of Education v. Allen (1968): state may lend books on secular subjects to parochial school students

    • Lemon v. Kurtzman (1971): reimbursement to religious schools for teacher’s salaries and textbooks unconstitutional

    • Meek and Wolman: cannot lend other instructional materials to religious schools; also Wolman, no transportation for field trips

    • Mitchell v. Helms (2000): overruled holding of Meek and Wolman about instructional materials

    • Committee for Public Education v. Regan (1980): states may reimburse parochial schools for administering state-prepared exams (but Levitt, does not apply to teacher-prepared)

    • Committee for Public Education v. Nyquist (1973): tuition rebates and tax deductions unconstitutional (though later in Mueller constitutional)

    • Mueller v. Allen (1983) (Rehnquist)

      • Minnesota tax deduction for tuition, textbooks, and transportation constitutional because broad class and “private choice” (applies Lemon test)

    • add cases on pp. 1590-1591???

    • Witters v. Washington (1986) (Marshall)

    • Zobrest v. Catalina Foothills (1993) (Rehnquist)

      • provision of publicly funded sign language interpreter does not violate anti-establishment

    • pp. 1592-1595

    • Grand Rapids v. Ball (1985) and Aguilar v. Felton (1985)

      • public school teachers providing remedial classes in parochial schools violates anti-establishment

    • Agostini v. Felton (1997)

      • overrules Grand Rapids and Agostini: moving the programs incurred high costs and they pass an endorsement test—when aid allocated based on neutral, secular criteria on nondiscriminatory basis it is not likely to further religion

    • Zelman v. Simmons-Harris (2002) (Rehnquist) (Vouchers)

      • provision of vouchers to public school students to attend private schools does not violate anti-establishment: there is clearly secular purpose, and it only happens that religious schools have been the only ones willing to take them

      • dissent: they have not tried to separate funds for secular purposes from other funds

  • Accommodations of Religion

    • Larkin v. Grendel’s Den (1982) (Burger): cannot delegate to religious entity the power to exercise civic authority—cannot give churches veto on liquor licenses

    • Estate of Thornton v. Calder (1985) (Burger): law mandating an accommodation for all workers who assert a particular day as their Sabbath unconstitutional under anti-establishment clause because clearly advanced a particular religious practice (though Court tries to distinguish the exception from the one in Title VII)

    • Corporation v. Amos (1987) (White): upheld Title VII exemption for religious organizations as applied to a janitor working for Mormon church

    • Texas Monthly v. Bullock (1989) (Brennan): struck down sales tax exemption for religious periodicals

    • Board of Education v. Mergens (1990) (O’Connor plurality): upheld provision requiring that high schools allow religious student groups access to any limited pubic forum

    • Board of Ed v. Grumet (1994) (Souter): could not draw a school district entirely to benefit one religious group




VI. Due Process

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