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





limits on candidate personal expenditures

limits on aggregate campaign expenditures

disclosure of contributions

public financing for campaigns


not constitutional

not constitutional

not 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






NAACP v. Alabama




  • 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


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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