May 12th Notes

Complex Litigation
May 12, 2010

Read the first amendment

Freedom of religion
Establishment clause:  congress shall make no law on religion (no state religion)
    -needs to be a wall of separation between religion and state
   
    Seperationist View (minority viewpoint)
        - (Hugo Black) "Wall of Separation"

    -Everson v. Bd. of Education 1947
        -the state is one side, the church is the other


Exercise clause: freedom of religion

    Accomodationist View (majority and prevailing viewpoint)
        - Cannot prefer, but can neutrally assist

    -Lemon v. Kurtzman 1971
        -when has the government gone too far
       
        "Lemon Test"
        1. Is there a valid secular (non-religious) purpose? (Yes)
        2. Is the primary purpose of govt. to advance/inhibit religion? (No)
        3. Will the involvement promote excessive governmental entanglement? (No)

-use these questions to see if the government is allowed to do something with religious organizations

Tilton v. Richardson 1971
    -lemon test failed but still held
    -passed same test as lemon v. kurtzman

Engel v. Vitale 1962
    -compose an officials school prayer
    -Prayer in school
    -not allowed

Zorach v. Clauson 1952
    -dismissed time to release kids to go study bible school
    -as long as it is after school

Lynch v. Donnelly 1984
    -nativity scene on government property
    -said it didn't violate any lemon tests
        -just put it on private property
        -on public property only if there are secular symbol neutralization
            -religious content must be limited
            okay to have: bells, stars, holly, stockings, elves, wishing wells,

The free exercise of belief and the free exercise of conduct pursuant of the belief.
    -you are free to believe whatever you want
    -when you act on those belief you are in a new realm of law
        -government must protect the health, welfare and safety of other citizens

4 Key Concepts to Restricting Religious Conduct (not "belief")
1. Does the state have a compelling interest?

2. Does the claimant have a "sincere religious principle" that will be "significantly compromised"?

3. Is the restriction an outright prohibition or merely an "inconvenience"?

4. A legitimate time-place-manner infringement or an effort to control content?   

-The Supreme Court never interferes with belief, can interfere with practice and will uphold minor inconveniences and restrictions.

Reynolds v. US 1878
    -examines beliefs vs. acting on beliefs
    -prohibited polygamy law (Utah not a state)
    -challenged, held
    -can believe in polygamy but can not take action on it
        -subversive to good order, stable monogamous marriage is critical to society
   
Cantwell v. Connecticut 1940
    -Jehovah witness, would ask to play record for people on sidewalk
    -was a very anti-catholic record
    -state said he needed a permit
        -solicitation on sidewalk
        -concern with fraud
    -Cantwell wins because the burden is on the state and their permit issues

Sherbet v. Verner 1963
    -7th day adventist, does not work on Saturday
    -company makes him work on Saturday, fired over it
    -wants unemployment
    -held by John Harlen
        -only when the work is unavailable, not the worker
        -nothing to do with religion, her refusal to work
        -no one gets a day off for religious purposes
            -Sunday is just a rest day

Lyng v. NW Indian Cemetery Protection Assn. 1988
    -forest ceremony for their funeral procedures
    -someone wants to log the forest
    -court went with being allowed to chop the trees down, serious issue

Wisconsin v. Yoder 1972
    -can the government force the Amish to educate their children beyond 8th grade
    -violated their parents' fundamental right to freedom of religion
    -the Amish have an alternative community that can work well for them

Goldman v. Weinberger 1986
    - wanted to wear jewish cap in uniform
    -no problem being jewish, but no cap
    -uniform is part of the military, making them one organization
    -air force won, defense of authorization act: can wear religious symbols if neat and conservative
   
Dept. of Human Resources of Oregon v. Smith 1990
    -can native americans smoke peyote as part of their rituals?
    -no peyote decision, Scalia do not excuse compliance with laws prohibiting conduct, which the state is free to regulate
    -American Indian Freedom Act from 1970's: can smoke peyote
   
Minnesota v. Hershberger 1990
    -are the Amish exempt from hanging reflective triangles on their horse and buggies
    -ACLU came against the Amish
    -everyone must hang reflective triangle for safety despite their request that it interferes with god's will
    -triangles must go on
    -done all in amicus curie briefs