1. Presentation for POL 101
Dr. Kevin Lasher

2. The freedom of a citizen to exercise basic rights, as of speech, religion or assembly, without unwarranted or arbitrary interference by the government.

3. Bill of Rights First ten amendments (changes) to the Constitution
BOR was “price” paid to Anti-Federalist forces
Freedom of speech, press, religion, right to lawyer, no cruel and unusual punishment, etc.
Congress shall make no law …
Did not apply to state governments until 20th century (selective incorporation)
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4. Bill of Rights
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Citizens
National Government

5. Barron v. Baltimore (1833)
Confirmed that Bill of Rights only applied to national government and did not apply to state governments

6. Selective Incorporation
Bill of Rights
14th Amendment
Selective Incorporation
Making Bill of Rights apply to all levels of government

7. 14th Amendment (1868)
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

8. 14th Amendment Two goals: Citizenship rights for freed slaves
Use 14th Amendment to “nationalize” BOR
#2 is still debated by scholars today

9. Selective Incorporation
20th century process of finally “nationalizing” the BOR
A very big deal

10. Selective Incorporation
Gitlow v. New York (1925) --- incorporates freedom of speech and press
“For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.”

12. Selective Incorporation
Supreme Court has confirmed the process of selective incorporation (some disagreement from legal scholars)
McDonald v. Chicago (2010) incorporates 2nd Amendment and shows that conservative court accepts doctrine of incorporation
Still a few parts of BOR that have not been nationalized (3rd Amendment, right to grand jury, no excessive bail)
Selective incorporation is a “done deal”

13. Bill of Rights/Selective Incorporation
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Government
Citizens
National Government

14. Bill of Rights None of these rights are ABSOLUTE
Supreme Court has spend a great deal of time trying to figure out the definitions and limits of these rights
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15. Freedom of Religion

16. Freedom of Religion “Congress shall make no law respecting an
establishment of religion or prohibiting the free
exercise thereof …”
Applies to national, state and local governments

17. Freedom of Religion Free exercise of religion
Establishment of religion
While the Supreme Court has generally viewed religious freedom as these two separate components, there is certainly a degree of overlap between the two.

18. Free Exercise of Religion: Today
All religious groups/individuals should have the rights of free exercise
All religious groups/individuals are free to believe anything (government may not interfere in beliefs, even if it could)
All religious groups/individuals are free to practice their religion in most circumstances
Religious belief is off limits; religious actions may be prevented under VERY SPECIAL CIRCUMSTANCES

19. Free Exercise of Religion
Clearest (if most extreme) example is the prohibition of human sacrifice
NOT FREE to blow up abortion clinics
NOT FREE to commit robbery and give everything to the poor
NOT FREE to stone my wife if she committed adultery
NOT FREE to do “anything at all” in the name of your religion

20. Free Exercise of Religion
Laws/interest of society vs. Religious Actions

21. Freedom of Religion
Laws supercede religious actions, when there is a conflict
Government CAN limit religious freedom if religious actions violate laws or pose a threat to society
95% (or more) of religious actions are “off limits”
Relatively small subset of religious actions which conflict with national/state laws or policies
Citizens are free to believe anything and do “almost anything” in religious matters

22. Reynolds v. United States (1879)
Mormons practice polygamy since 1852 (or earlier)
Polygamy outlawed in federal territories (like Utah) in 1862
George Reynolds, member of Mormon Church hierarchy, arrested for two legal wives
Reynolds argued he was exempt from law because of his religious beliefs
Supreme Court disagreed and upheld his conviction
Before selective incorporation

23. Reynolds v. United States (1879)
“Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”
“…we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.”

24. Reynolds v. United States (1879)
“So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

25. Reynolds v. United States (1879)
Religious actions (like polygamy) may be restricted, prevented or punished IF they conflict with the laws or interests of society
Potentially – a fair amount of religious actions may be restricted by government
Next century saw a process of “refining” and “limiting” the ability of government to restrict the free exercise of religion

26. Free Exercise of Religion
Laws trump illegal or “dangerous” religious actions
But are there situations where free exercise claims should win out over secular laws?
Should a religious group be given an “exemption” from a law that applies to everyone else?
If so, when? And how do we balance the competing claims of enforcing the laws and protecting religious freedom?

27. Free Exercise of Religion
Should I be forced to fight in a war if I am a pacifist based on my religious beliefs?
DRAFT

28. Free Exercise of Religion
Can I use an illegal hallucinogenic drug based on a centuries-old practice of interacting with my God?

29. Free Exercise of Religion
Can I be forced to send my children to school beyond an age that my religion teaches is improper?

30. Free Exercise of Religion
Can I withhold medical treatment for my child because I believe that illnesses should be “treated” solely with prayer?

31. Free Exercise of Religion
More interaction in
“modern society”
More concern about rights

32. THE END