Approaching Civil Liberties Amendments are subject to interpretation

There are gaps between the words of the amendments and reality

The language may seem explicit but its meaning can be elusive and difficult to apply

There are questions about what exactly the amendments cover and to what extent

Rise of Civil Liberties cases at the Rise of Civil Liberties cases at the Supreme CourtSupreme Court

Since the late 1930, the justices have contributed to this United States v. Carolene Products (1938) Palko v. Connecticut (1937) (previously seen) Murdock v. Pennsylvania (1943)

Courts presumption that most laws are constitutional Preferred freedoms doctrine signals the Courts

willingness to give closer scrutiny to civil liberties and rights disputes

Increased use of litigation by Issue Advocates and Interest Groups, leading to a “rights revolution”

Growth in number of cases among other nationsGrowth in number of cases among other nations

United States v. Carolene ProductsDocket: 640Citation: 304 U.S. 144 (1938)Appellant: United States

Appellee: Carolene Products Abstract

Oral Argument: April 6, 1938

Decision: April 25, 1938

Issues: an economic regulation dispute, not civil liberties

Categories: “preferred freedoms”

Advocates

Facts of the CaseFacts of the Case A 1923 act of Congress banned the interstate A 1923 act of Congress banned the interstate

shipment of "filled milk" (milk with skimmed milk shipment of "filled milk" (milk with skimmed milk and vegetable oil added). A manufacturer, and vegetable oil added). A manufacturer, indicted for shipping filled milk, challenged the indicted for shipping filled milk, challenged the law arguing the law was unconstitutional on both law arguing the law was unconstitutional on both Commerce Clause and due process grounds.Commerce Clause and due process grounds.

QuestionQuestion

Does theDoes the Filled Milk Act of Congress of March 4, Filled Milk Act of Congress of March 4, 1923,1923, violate the Commerce Power granted to violate the Commerce Power granted to Congress in Article 1 Section 8 and the Due Congress in Article 1 Section 8 and the Due Process Clause of the Fifth Amendment? Process Clause of the Fifth Amendment?

ConclusionConclusion The Court upheld the act. In this case, the The Court upheld the act. In this case, the

Court planted the seeds for a new Court planted the seeds for a new jurisprudence in a footnote to Stone's jurisprudence in a footnote to Stone's opinion for the Court. Here Stone gives a opinion for the Court. Here Stone gives a presumption of constitutionality to economic presumption of constitutionality to economic regulation. The Court would no longer regulation. The Court would no longer substitute its views on economic policy for substitute its views on economic policy for the views of Congress. Stone went further in the views of Congress. Stone went further in footnote four by cautiously asserting that footnote four by cautiously asserting that certain types of legislation might not merit certain types of legislation might not merit deference toward constitutional validity. The deference toward constitutional validity. The most controversial element in the footnote most controversial element in the footnote was the suggestion that prejudice directed was the suggestion that prejudice directed against discrete and insular minorities may against discrete and insular minorities may call for "more searching judicial inquiry." call for "more searching judicial inquiry."

Murdock v. PennsylvaniaDocket: Citation: 319 U.S. 105U.S. 105 (1943)Appellant: Murdock, a Jehovah's Witness Appellee: The borough of Jeanette, Commonwealth of PA Abstract

Oral Argument: March 10, 11, 1943

Decision: May 3, 1943 Issues: Freedom of Religion: Free ExerciseCategories: “preferred freedoms”

Advocates

Facts of the CaseFacts of the Case The borough of Jeanette, Pennsylvania had an The borough of Jeanette, Pennsylvania had an

ordinance requiring solicitors to purchase a ordinance requiring solicitors to purchase a license from the borough. Murdock, a Jehovah’s license from the borough. Murdock, a Jehovah’s Witness, asked for contributions in exchange for Witness, asked for contributions in exchange for books and pamphlets. The city claimed that this books and pamphlets. The city claimed that this meant that they were being sold and a license meant that they were being sold and a license was required. was required.

QuestionQuestion

Did the licensing requirement constitute a tax on Did the licensing requirement constitute a tax on Murdock’s religious exercise.Murdock’s religious exercise.

ConclusionConclusion The Court in a 6-3 decision determined The Court in a 6-3 decision determined

that the ordinance was an unconstitutional that the ordinance was an unconstitutional tax on the Jehovah’s Witnesses’ right to tax on the Jehovah’s Witnesses’ right to freely exercise their religion. freely exercise their religion.

Significance: the neutral imposition of the Significance: the neutral imposition of the tax on solicitation performed by a religious tax on solicitation performed by a religious group did not make it constitutionally group did not make it constitutionally acceptable. Also, the Court distinguished acceptable. Also, the Court distinguished between commercial activity and religious between commercial activity and religious activity that involves the selling of religious activity that involves the selling of religious literature. literature.

The "Jehovah's Witnesses cases"

1. Jones v. Opelika (1942), the Court upheld a statute prohibiting the selling of literature without a license because it only covered individuals engaged in a commercial activity rather than a religious ritual. The freedom of press was not to be restricted only to those who can afford to pay the licensing fee.

2. Murdock v. Commonwealth of Pennsylvania (319 US 105)3. Martin v. City of Struthers (319 US 141), the Court invalidated a

city ordinance from Struthers, OH forbidding knocking on doors/ringing bells to distribute "handbills, circulars or other advertisements."

4. Douglas v. City of Jeannette, PA the Court upheld the jurisdiction of the District Court to proceed with criminal prosecutions of 21 Jehovah's Witnesses arrested in Jeannette for selling books during a Witness "Watch Tower Campaign" in 1939.

Of the 72 cases brought by the Jehovah's Witnesses Of the 72 cases brought by the Jehovah's Witnesses before the U.S. Supreme Court, these four are known as before the U.S. Supreme Court, these four are known as the "Jehovah's Witnesses cases" because the decisions the "Jehovah's Witnesses cases" because the decisions for all four were handed down by the US Supreme Court for all four were handed down by the US Supreme Court on May 3, 1943:on May 3, 1943:

License Requirement for Literature Distribution / Parade & Park Permit

1. Lovell v. City of Griffin (1938), the Supreme Court ruled it was not constitutional for a city to require written permission from the City Manager to distribute religious material.

2. Schneider v. New Jersey (1939), the Supreme Court invalidated an ordinance that provided: "No person ... shall canvass, solicit, distribute circulars, or other matter, or call from house to house ... without first having reported to and received a written permit from the Chief of Police."

3. Cantwell v. Connecticut (1940), the Court ruled that the statute requiring a license to solicit for religious purposes was a restraint that vested the state with excessive power in determining which groups must obtain a license.

License Requirement for Literature Distribution / Parade & Park Permit 4. Cox v. New Hampshire (1941), the Court unanimously upheld the convictions of Jehovah's Witnesses for engaging in a public parade without a license. The Court ruled that, although the government cannot regulate the contents of speech, it can place reasonable time, place, and manner restrictions on speech for the public safety.

5. Jones v. Opelika II (1942) 6. Jones v. Opelika II (1943)7. Douglas v. City of Jeannette (1943) 8. Murdock v. Commonwealth of Pennsylvania (1943) 9. Follett v. Town of McCormick (1944), the Court held that people who earn their living by selling or distributing religious materials should not be required to pay the same licensing fees and taxes as are expected of those who sell or distribute non-religious materials.

10. Watchtower Society v. Village of Stratton (2002),

Civil LibertiesAmendment I

Freedom of Expressions (previously covered)

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment I, III, IV, V, IX

Right to Privacy

Amendments that imply Right to Privacy:

I - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

III - No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

IV - The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendments that imply Right to Privacy:

V - No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

IX - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Religion: Definition, Free Exercise, Establishment

American Religiousness 9 of 10 believe in God over 1,500 religious bodies Globally, Americans rank second when rating the importance of God in their lives (behind Malta) 68% belong to over 350,000 churches, temples, mosques, and synagogues

Yet historically Americans have proven to be religiously intolerant

colonial laws against “minority” religions, i.e. anti- catholic laws

Religion: Definition, Free Exercise, Establishment

Yet historically Americans have proven to be religiously intolerant (continued)

11 of 13 states had some restrictive laws (only Maryland and Rhode Island provided full religious freedom) 6 states had established religions some states imposed religious oaths on public officials Anti-federalists objected the lack of any

guarantees of religious liberty

Religion: Definition, Free Exercise, Establishment

Breaks with past trends

Constitutional Convention delegates opposed Ben Franklin’s proposal for prayer before debates Article VI provides for oaths by government

officials to defend the constitution but no religious tests requirements for public officeDefining Religion – Three Supreme Court cases

1. Reynolds v. United States (1879)        2. United States v. Ballard (1944)        3. United States v. Seeger (1965)

Reynolds v. United StatesDocket:

Citation: 98 U.S. 145 (1879)Appellant: George ReynoldsAppellee: United States

Abstract

Oral Argument: November 14-15, 1878

Decision: May 5, 1879

Issues:

Categories:

Advocates

Facts of the CaseFacts of the Case George Reynolds was a member of the George Reynolds was a member of the

Church of Jesus Christ of Latter-day Saints, Church of Jesus Christ of Latter-day Saints, charged with bigamy after marrying charged with bigamy after marrying Amelia Jane Schofield while still married to Amelia Jane Schofield while still married to Mary Ann Tuddenham in the Utah Mary Ann Tuddenham in the Utah Territory.Territory.

QuestionQuestion

Does the? Does the?

ConclusionConclusion The Supreme Court upheld the conviction finding The Supreme Court upheld the conviction finding

Reynolds guilty.Reynolds guilty. The constitution does not define religion, so to reach a The constitution does not define religion, so to reach a

ruling Court investigated the history of religious freedom ruling Court investigated the history of religious freedom in the United States. The court quoted a letter from in the United States. The court quoted a letter from Thomas Jefferson in which he stated that there was a Thomas Jefferson in which he stated that there was a distinction between religious belief and action that distinction between religious belief and action that flowed from religious belief. Belief flowed from religious belief. Belief "lies solely between "lies solely between man and his God,"man and his God," therefore therefore "the legislative powers of "the legislative powers of the government reach actions only, and not opinions."the government reach actions only, and not opinions."

The court argued that if polygamy was allowed, how The court argued that if polygamy was allowed, how long before someone argued that human sacrifice was a long before someone argued that human sacrifice was a necessary part of their religion, and necessary part of their religion, and "to permit this "to permit this would be to make the professed doctrines of religious would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."permit every citizen to become a law unto himself."

The Court believed the true spirit of the First The Court believed the true spirit of the First Amendment was that Congress could not legislate Amendment was that Congress could not legislate against opinion but could legislate against action.against opinion but could legislate against action.

United States v. BallardDocket: Citation: U.S. (1944)Appellant: United States

Appellee: Guy Ballard Abstract

Oral Argument:

Decision:

Issues:

Categories:

Advocates

Facts of the CaseFacts of the Case Guy Ballard was convicted of using and conspiring to use Guy Ballard was convicted of using and conspiring to use

mails to defraud. He was a follower of the 'I Am' movement mails to defraud. He was a follower of the 'I Am' movement and believed that the words of St. Germain, the divine and believed that the words of St. Germain, the divine messenger, were transmitted through him. Ballard also messenger, were transmitted through him. Ballard also claimed to possess the power to heal people and claimed to claimed to possess the power to heal people and claimed to have had success in doing so in the past. He solicited have had success in doing so in the past. He solicited contributions via mail in exchange for offering his healing contributions via mail in exchange for offering his healing abilities. The government asserted that he 'well knew' that abilities. The government asserted that he 'well knew' that these claims were false and he used them to defraud others these claims were false and he used them to defraud others of their money. In the initial trial, the jury was told not to of their money. In the initial trial, the jury was told not to consider Ballard's religious beliefs, instead they were merely consider Ballard's religious beliefs, instead they were merely to determine whether the defendant believed that he to determine whether the defendant believed that he possessed the ability to heal others. possessed the ability to heal others.

QuestionQuestion Does theDoes the Fifth Amendment? Fifth Amendment?

ConclusionConclusion The Court ruled that it was proper for the jury The Court ruled that it was proper for the jury

to base its decision on the sincerity of to base its decision on the sincerity of Ballard's beliefs. Ballard's beliefs.

Justice Douglas, authoring the majority Justice Douglas, authoring the majority opinion, wrote: “The content of the teachings opinion, wrote: “The content of the teachings of the 'I Am' movement were immaterial. of the 'I Am' movement were immaterial. These beliefs could not be an issue in any These beliefs could not be an issue in any case because the content of religious case because the content of religious convictions could not be judged as either convictions could not be judged as either correct or incorrect. Because of the First correct or incorrect. Because of the First Amendment, heresy is an unknown offense in Amendment, heresy is an unknown offense in the United States. All that mattered was the United States. All that mattered was whether Ballard believed in good faith that whether Ballard believed in good faith that he possessed the powers he claimed to have. he possessed the powers he claimed to have. If this was so, then he must be acquitted.” If this was so, then he must be acquitted.”

Abstract

Oral Argument:

Decision:

Issues:

Categories:

AdvocatesUnited States v. SeegerDocket: Citation: 380 U.S. 163(1965)Appellant: United StatesAppellee: Daniel A. Seeger

Facts of the CaseFacts of the Case This case involved the application of the Universal This case involved the application of the Universal

Military Training and Service Act which exempted Military Training and Service Act which exempted people from military service if their religious training people from military service if their religious training or belief makes them opposed to such service. or belief makes them opposed to such service.

It defined appropriate training or belief as an It defined appropriate training or belief as an individual's belief in a relation to a Supreme Being individual's belief in a relation to a Supreme Being involving duties superior to those arising from any involving duties superior to those arising from any human relation, but [not including] essentially human relation, but [not including] essentially political, sociological, or philosophical views or a political, sociological, or philosophical views or a merely personal moral code." One person involved in merely personal moral code." One person involved in the suit believed in a “supreme reality” while the suit believed in a “supreme reality” while another believed in a “universal reality.” Neither of another believed in a “universal reality.” Neither of these were included in the class of beliefs covered these were included in the class of beliefs covered by the Act. by the Act.

They claimed that the law unfairly did not exempt They claimed that the law unfairly did not exempt non-religious conscientious objectors and that it non-religious conscientious objectors and that it discriminated between different forms of religious discriminated between different forms of religious beliefs.beliefs.

QuestionQuestion

ConclusionConclusion

In a unanimous opinion, the Court In a unanimous opinion, the Court allowed those people with general allowed those people with general theistic belief systems to be declared theistic belief systems to be declared conscientious objectors.conscientious objectors.

City of Boerne v. Flores

Docket: 95-2074Citation: 521 U.S. 507 (1997)Appellant: pAppellee: oAbstract

Oral Argument: Wednesday, February 19, 1997

Decision: Wednesday, June 25, 1997

Issues: First Amendment, Free Exercise of Religion

Categories:

Advocates

Walter E. Dellinger, III (Argued the cause for the Federal respondent)

Marci A. Hamilton (Argued the cause for the petitioner)

Douglas Laycock (Argued the cause for the respondent Flores)

Jeffrey S. Sutton (Argued the cause on behalf of Ohio et al., as amici curiae, support the petitioner)

Facts of the CaseFacts of the Case The Archbishop of San Antonio sued local zoning authorities The Archbishop of San Antonio sued local zoning authorities

for violating his rights under the 1993 Religious Freedom for violating his rights under the 1993 Religious Freedom Restoration Act (RFRA), by denying him a permit to expand Restoration Act (RFRA), by denying him a permit to expand his church in Boerne, Texas. Boerne's zoning authorities his church in Boerne, Texas. Boerne's zoning authorities argued that the Archbishop's church was located in a historic argued that the Archbishop's church was located in a historic preservation district governed by an ordinance forbidding new preservation district governed by an ordinance forbidding new construction, and that the RFRA was unconstitutional insofar construction, and that the RFRA was unconstitutional insofar as it sought to override this local preservation ordinance. On as it sought to override this local preservation ordinance. On appeal from the Fifth Circuit's reversal of a District Court's appeal from the Fifth Circuit's reversal of a District Court's finding against Archbishop Flores, the Court granted Boerne's finding against Archbishop Flores, the Court granted Boerne's request for certiorari.request for certiorari.

QuestionQuestion

Did Congress exceed its Fourteenth Amendment enforcement Did Congress exceed its Fourteenth Amendment enforcement powers by enacting the RFRA which, in part, subjected local powers by enacting the RFRA which, in part, subjected local ordinances to federal regulation?ordinances to federal regulation?

ConclusionConclusion Yes. Under the RFRA, the government is prohibited Yes. Under the RFRA, the government is prohibited

from "substantially burden[ing]" religion's free from "substantially burden[ing]" religion's free exercise unless it must do so to further a compelling exercise unless it must do so to further a compelling government interest, and, even then, it may only government interest, and, even then, it may only impose the least restrictive burden. impose the least restrictive burden.

The Court held that while Congress may enact such The Court held that while Congress may enact such legislation as the RFRA, in an attempt to prevent the legislation as the RFRA, in an attempt to prevent the abuse of religious freedoms, it may not determine the abuse of religious freedoms, it may not determine the manner in which states enforce the substance of its manner in which states enforce the substance of its legislative restrictions. legislative restrictions.

This, the Court added, is precisely what the RFRA does This, the Court added, is precisely what the RFRA does by overly restricting the states' freedom to enforce its by overly restricting the states' freedom to enforce its spirit in a manner which they deem most appropriate. spirit in a manner which they deem most appropriate.

With respect to this case, specifically, there was no With respect to this case, specifically, there was no evidence to suggest that Boerne's historic evidence to suggest that Boerne's historic preservation ordinance favored one religion over preservation ordinance favored one religion over another, or that it was based on animus or hostility for another, or that it was based on animus or hostility for free religious exercise.free religious exercise.

The “establishment clause”a.prohibits the establishment of a state

religion.

b.provides a wall of separation between church and state.

c. was furthered by the Lemon v. Kurtzman decision.

d. all of the above.

Free Exercise ClauseFree Exercise Clause Does a literal interpretation suggest a Does a literal interpretation suggest a

group may practice any religion it group may practice any religion it chooses?chooses?

Is such an interpretation reasonable?Is such an interpretation reasonable? What if the religious member engages in What if the religious member engages in

dangerous practices, i.e taking dangerous practices, i.e taking hallucinogenic drugs?hallucinogenic drugs?

Should government prohibit religious Should government prohibit religious activities that are dangerous or offensive?activities that are dangerous or offensive?

The Belief – Action DistinctionThe Belief – Action Distinction Based on the Thomas Jefferson letter in 1803 Based on the Thomas Jefferson letter in 1803

to the Danbury Baptist Associationto the Danbury Baptist Association Jefferson believed that Jefferson believed that

free exercise is not absolute andfree exercise is not absolute and government may regulate religious actionsgovernment may regulate religious actions

The Supreme Court supported this position in The Supreme Court supported this position in 1940 in Cantwell v. Connecticut, upholding 1940 in Cantwell v. Connecticut, upholding the constitutionality of laws affecting religious the constitutionality of laws affecting religious practices as long as the legislation serves the practices as long as the legislation serves the nonreligious goal of safeguarding the peace, nonreligious goal of safeguarding the peace, order, and comfort of the community and is order, and comfort of the community and is not directed at any particular religion.not directed at any particular religion.

The Belief – Action DistinctionThe Belief – Action Distinction The Court sustained laws prohibiting The Court sustained laws prohibiting

religiously sanctioned polygamy (the religiously sanctioned polygamy (the practice of taking multiple wives) in practice of taking multiple wives) in Reynolds v. United States in 1879.Reynolds v. United States in 1879.

The Court sustained laws prohibiting The Court sustained laws prohibiting use of peyote during religious use of peyote during religious services in Employment Division, services in Employment Division, Department of Human Resources of Department of Human Resources of Oregon v. Smith in 1990.Oregon v. Smith in 1990.

The Belief – Action DistinctionThe Belief – Action Distinction By contrast, the Court invalidated a law By contrast, the Court invalidated a law

that forced a Seventh Day Adventist to that forced a Seventh Day Adventist to work on Saturday – her faith’s Sabbath work on Saturday – her faith’s Sabbath – in order to receive unemployment – in order to receive unemployment benefits in Sherbert v. Verner in 1963.benefits in Sherbert v. Verner in 1963.

The Court also upheld the right of the The Court also upheld the right of the Amish to withdraw their children from Amish to withdraw their children from public school before the age of sixteen public school before the age of sixteen in Wisconsin v. Yoder in 1972.in Wisconsin v. Yoder in 1972.

Congress and Religious FreedomCongress and Religious Freedom

Congress does not always agree with Congress does not always agree with the way the Court interprets the Free the way the Court interprets the Free Exercise Clause.Exercise Clause.

Recently, Congress has shown greater Recently, Congress has shown greater support for freedom of religious support for freedom of religious expression than the Supreme Court.expression than the Supreme Court.

Goldman v. Weinberger in 1986Goldman v. Weinberger in 1986 City of Boerne v. Flores in 1997City of Boerne v. Flores in 1997

Congress and Religious FreedomCongress and Religious Freedom

After Employment Division, Department of After Employment Division, Department of Human Resources of Oregon v. Smith in Human Resources of Oregon v. Smith in 1990, where the Court outlawed the use of 1990, where the Court outlawed the use of peyote in religious ceremonies, Congress peyote in religious ceremonies, Congress expressed renewed concern over the expressed renewed concern over the Court’s reasoning in free exercise cases.Court’s reasoning in free exercise cases.

In 1993, Senators Ted Kennedy and Orrin In 1993, Senators Ted Kennedy and Orrin Hatch led passage of the Religious Hatch led passage of the Religious Freedom and Restoration Act (RFRA).Freedom and Restoration Act (RFRA).

The Court ruled RFRA unconstitutional in The Court ruled RFRA unconstitutional in City of Boerne v. Flores in 1997City of Boerne v. Flores in 1997

The Supreme Court has limited recitation of prayers in public schools primarily on the basis of.a. the establishment clause.

b. the free exercise clause.

c. freedom of speech.

d. the right to privacy.

The Supreme Court maintains that the establishment clause prevents all of the following evils EXCEPT.

a. sponsorshipb. financial supportc. active involvement of the

government in religious activityd. accommodating to religious

needs

The relationship between the state and religion is addressed ina. the clear and present danger clause.

b. the establishment clause.

c. the free exercise clause.

d. both b and c.

The “free exercise” clause precludes all of the following EXCEPT.a. a requirement of a religious oath as a condition of public service.

b. denying persons certain rights because of their beliefs or lack of them.

c. discrimination based on religious belief systems rather than adherence to a formal creed.

d. a requirement of a religious oath for public school teachers.

The free exercise clause has been interpreted by American courts to mean thata. no conduct motivated by religion is subject

to state authority.

b. people must keep their opinions about religion to themselves.

c. Amish may take their children out of public schools after the eighth grade.

d. although religious beliefs cannot be regulated, religious conduct may be.