1. Monsen APGOV 2015

2. Edwards Learning Objectives Distinguish the two types of religious rights protected by the First Amendment and determine the boundaries of those rights 4.2 4

3. “Congress shall make no law respecting an establishment of religion” “Or prohibiting the free exercise thereof” Free Exercise Clause

4.  For years prayer & bible reading in schools was permitted. Ten Comm on wall etc  This kind of free exercise didn’t amount to an “establishment” thereof.  Gov could require some degree of piety, or patriotism from it citizens.  Salute & pledge – Jehovah’s Witness believed it was violating a commandment (no god’s..)  WWII- students expelled – protests at homes  LOST – school had right to secure loyalty to ideals of democracy.

5.  FASCISM in Europe  Reminded us of the importance of free speech and worship – no establishment  Quick Reversal…

6.  The West Virginia Board of Education required by state law that all students salute the flag and recite the pledge as a part of their daily routine. Students who refused were suspended, declared unlawfully absent, and subject to delinquency proceedings. Parents of such students were also subject to a fine or imprisonment. Several Jehovah’s Witnesses, who were citizens of West Virginia, sought from the court an injunction to stop the West Virginia State Board of Education from requiring the pledge and flag salute.  Establishment or Free Exercise?

7.  The SC ruled, 6-3, in favor of Barnette and the other Jehovah’s Witnesses. The Court held that the Board could not require daily flag salute and pledge as a condition that students must meet to receive a public education. The Court’s ruling provided students “scrupulous protection” of their constitutional liberties as guaranteed by the First Amendment.  Justice Robert H.Jackson – “to believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.

8.  ***Engle v Vitale (1962) NY public School Prayer –read announcements  Lee v Weisman (1992) graduation prayers?  “Captive Audience”- can’t impose religion  No coercion can’t be backed by something as powerful as public schools.  Santa Fe ISD v Doe (2000) Prayer on PA at football games in Texas?  Apply Weisman

9.  Abington v Schempp (1963) Devotions? no  Epperson v Arkansas (1968) Can’t ban evolution  Wallace v Jaffree – silence ? - no!- just a minute? NO!  Many groups have used 1 st Speech to win in court- Jews for Jesus 1987…handing out pamphlets at airport. OK speech.  Westside v Mergens – 1990 after school clubs ok –equal access

10.  A more recent decision by the Ninth Circuit Court of Appeals ignited a firestorm of controversy. The appeals court, in Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002), ruled that Congress had violated the Establishment Clause when, in 1954, it inserted the words "Under God" into the pledge. Therefore, a California school district's daily recitation of the Pledge of Allegiance injured the daughter of an atheist father, for the pledge sent a message to her that she was an "outsider" and not a member of the political community. The defendants vowed to petition the Supreme Court to review the case. The Ninth Circuit stayed its ruling until the Supreme Court resolved the issue by either denying review or taking the appeal.

11. Aid to Church related school (parochial) must… Have a secular purpose Neither advance nor inhibit religion No excessive “entanglement” with religion

12.  Haircuts  Read …

13.  Reynolds v US (1878) POLYGAMY  held that religious duty was not a suitable defense to a criminal indictment.  Basically – you can ban a practice, not the belief if you have a “compelling interest” (a legal standard) So, is POLYGAMY unconstitutional? ***All human behavior is constitutional. It is whether state action is constitutional or unconstitutional. When can the govt regulate the behavior? That is the question.

14.  By the Warren Court years of the 1960s, the Court had adopted a much more expansive view of the Free Exercise Clause, reading it to compel governmental accommodation of religiously-motivated conduct in the absence of a compelling state interest  Applying this strict scrutiny to laws that significantly burdened religious exercise, the Court found unconstitutional South Carolina's law denying unemployment benefits to a Seventh Day Adventist who turned down a job opportunity that included Saturday work (Sherbert).

15.  Tennessee Rattlesnakes?  Jehovah’s Blood ?  Amish Dropouts ?

16.  Employment Division (Oregon) v Smith 1990  Peyote? Unemployment benefits…ah ha!  New standard - “Vested interest” (debated)  Which is more difficult to prove? What does this mean?  Challenges? San Antonio Church ? Apply