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CHAPTER 16
THE SUPREME COURT
Basic Supreme Court Facts
9 justices ($203,000 salary)
 1 chief justice ($212,100 salary)
 Nominated by the President, approved by the
Appointed
Appointed by
Name
Senate.
John
Roberts, Chief Justice
2005
George W. Bush
 Tenured for life
Samuel
Alito = approx.
2005
Georgewith
W. Bush
 Annual
docket
8,000 cases
fewer
than
100 Scalia
being heard each
Antonin
1986 year. Ronald Reagan
 $300
fee to have1988
a case before
theReagan
court.
Anthonyfiling
M. Kennedy
Ronald
(Exception in forma pauperis)
Clarence Thomas
1991
George Bush
 Quorum = 6

Ruth Bader Ginsburg
1993
William Clinton
Stephen G. Breyer
Sonia Sotomayor
Elena Kagan
1994
2009
2010
William Clinton
Barack Obama
Barack Obama
Supreme Court Justices
Sonio Sotomayor, Stephen Breyer, Samuel Alito, Elena Kagan
Clarence Thomas, Anotnin Scalia, Chief Justice John Robert, Anthony
Kennedy, Ruth Bader Ginsburg.
Changes in the Supreme Court:
1787- 1865
The Early Court
 Relatively lowly status
 First session of the Supreme Court initially had to be adjourned
when a quorum of the justices failed to show up.
 First decade, Court not co-equal but it did assert itself.
 Tried to advance principles of nationalism and to maintain the
national government’s supremacy over the states
The Marshall Court (1801-1835)
 Judicial Review: the right of the federal courts to rule on the
constitutionality of lower courts, laws and executive actions.
 It is the chief judicial weapon in the checks and balances system.
 Marbury v. Madison (1803): The Supreme Court could declare a
congressional act unconstitutional.
 McCulloch v. Maryland (1819): The power granted to federal
government should be construed broadly, and federal law is
supreme over state law.
Changes in the Supreme Court
1865- 1936: Government and the Economy
 The Supreme Court was supportive of private property,
but could not develop a principle distinguishing
between reasonable and unreasonable regulation of
business
 The Court interpreted the Fourteenth and Fifteenth
amendments narrowly as applied to blacks—it upheld
segregation, excluded blacks from voting in many
states
1936-Present: Liberty and Social Equality
 The Warren Court provided a liberal protection of
rights and liberties against government trespass.
Article III





Established the Supreme Court
Gave Congress the authority to establish other courts as it saw fit.
Specifies the judicial power of the Supreme Court and discusses the
Court’s original and appellate jurisdiction.
Framers gave federal judges tenure for life “with good behavior.”
Some checks on judiciary included:
 Congress has the authority to alter the Court’s jurisdiction.
 Congress can propose constitutional amendments that, if ratified,
can effectively reverse judicial decisions
 Congress can impeach and remove federal judges.
 President (with advise and consent of Senate) appoints federal
judges.
The Judicial Power of the United
States Supreme Court
The following are the types of cases the Supreme Court was given the jurisdiction to
hear as initially specified in the Constitution:
1.All cases arising under the Constitution and laws or treaties of the United States
2.All cases of admiralty or maritime jurisdiction
3.Cases in which the United States is a party
4.Controversies between a state and citizens of another state
5.Controversies between two or more states
6.Controversies between a state and foreign states
7.All cases affecting ambassadors or other public ministers
Since passing of the Constitution there have been inferior courts created
to absorb some of the Supreme Court’s caseload.
U.S. District and Appellate Courts
The Judiciary Act of 1789 and the Creation of the Three-Tiered Federal Judicial System
District courts:
 At least one in each state, each staffed by a federal judge.
 94 Courts
 The most populous states have four (CA, TX, and NY)
 Jurisdiction:
 Involve the federal government as a party
 Federal question based on a claim under the U.S. Constitution, a treaty with
another nation, or a federal statute
 Civil suits in which citizens are from different states, and the amount of money at
issue is more than $75,000
Court of Appeals:
 Avenue for appeal.
 11 numbered circuit courts
 Twelfth, D.C. Court of Appeals (Handles most appeals involving federal regulatory
commissions and agencies)
 Thirteenth, U.S. Court of Appeals for the Federal Circuit (Deals with patents and
contract and financial claims against the federal government)
 Have no original jurisdiction, hear no new testimony.
Supreme Court size set in the Act – chief justice and five associates
 Number of justices set to 9 in 1869, attempt to modify number by FDR shot down by
public outcry.
 Supreme Court decides which cases it will hear
 Most cases are appellate jurisdiction, come from the federal courts, and are civil cases.
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The Structure of the Federal Judicial System
Constitutional Courts
Supreme Court
State Supreme
Courts
US Courts of
Appeals
(11 + 1 + 1)
Other Courts
U.S. Regulatory
Commissions
Court of Military
Appeals
Legislative Courts
US District Courts
Claims Court
Tax Court
Court of
International Trade
Factors That Influence
Supreme Court Nominations
1.
2.
3.
4.
5.
6.
7.
Party Affiliation (80% or higher)
Judicial Philosophy
“Litmus Test” - where nominees stand on controversial issues
like abortion
Background of Nominee (education, experience, race, gender,
ethnicity, etc.)
Political favors
Interest group input
Securing a “safe” nominee
Quick Facts
 1 out of 5 nominees will not make it.
 Generally white male lawyers with judicial and political experience
 Generally of the same party as the appointing president
 Presidents with minority party support in the Senate will have more trouble.
 Chief Justice can be chosen from a sitting justice, or a new member.
U.S. Supreme Court Confirmation Process
Informal
Formal
Informal
• White House Review
• Media Influence
• Presidential Nomination
• Senate Judiciary
Committee Hearing
• Full Senate Vote
• Oath of Office
• FBI Investigation
• Interest Group
Influence
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The Backgrounds of Judges and Justices
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Figure 16.1: Female and Minority
Judicial Appointments, 1963-2003
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Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics,
2003-2004 (Washington, D.C.: Congressional Quarterly, 2003), table 7.5.
Figure 16.1: Female and Minority
Judicial Appointments, 1963-2003
16 | 22
Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2003-2004 (Washington,
D.C.: Congressional Quarterly, 2003), table 7.5.
Figure 16.1: Female and Minority
Judicial Appointments, 1963-2003
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Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2003-2004 (Washington,
D.C.: Congressional Quarterly, 2003), table 7.5.
The Supreme Court
Decisions of the court of appeals are binding on only the
district courts within the geographic confines of the circuit.
 Decisions of the Supreme Court are binding throughout the
nation and establish national precedents.
 Reliance on past decisions or precedents to formulate
decisions in new cases is called “stare decisis.”
 Allows for continuity and predictability
Types of Decisions
1. Per curiam: brief and unsigned
2. Opinion of the court: majority opinion
3. Concurring opinion: agrees with the ruling of the majority
opinion, but modifies the supportive reasoning
4. Dissenting opinion: minority opinion

Supreme Court
Procedures
The Supreme Court and the American Public
Issue
Case
Court Decision Public Opinion
Should homosexual
relations between
consenting adults be
legal?
Lawrence v. Texas (2003)
Yes
Maybe (50%)
Should members of
Congress be subject to
term limits?
U.S. Term Limits v. Thorton
(1995)
No
Yes (77%)
Is affirmative action
constitutional?
Grutter v. Bollinger (2003)
Gratz v. Bollinger (2003)
Yes
Yes (64%)
Before getting an
abortion, whose
consent should a
teenager be required
to gain?
Williams v. Zbaraz (1980)
One parent
Both (38%)
One parent (37%)
Neither parent (22%)
Is the death penalty
constitutional?
Gregg v. Georgia (1976)
Yes
Yes (72%)
Supreme Court Today


Court has two types of jurisdiction
 Original
 Appellate
Rule of Four
 Court controls its caseload through the certiorari process.
 All petitions for certiorari must meet two criteria:





The case must come either from a U.S. court of appeals, a special threejudge district court, or a state court of last resort.
Case must involve a federal question. This means that the case must
present questions of interpretation of federal constitutional law or
involve a federal statute, action or treaty.
Cert pool
Discuss list
Cert granted when at least four justices vote to hear a case
Constitutional Interpretation


Strict construction: judges are bound by the wording of the
Constitution
Activist: judges should look to the underlying principles of
the Constitution.
For:
 Courts should correct injustices when other branches or state
governments refuse to do so
 Courts are the last resort for those without the power or influence
to gain new laws
Against:
 Judges lack expertise in designing and managing complex
institutions
 Initiatives require balancing policy priorities and allocating
public revenues
 Courts are not accountable because judges are not elected

Today, most strict constructionists tend to be conservative,
most activists tend to be liberal
What Do Supreme Court Clerks Do?
Supreme Court clerks are among the best and brightest recent law school
graduates. Almost all first clerks for a judge on one of the courts of appeals. After
their Supreme Court clerkship, former clerks are in high demand. Firms often
pay signing bonuses of up to $80,000 to attract clerks, who often earn over
$130,000 their first year in private practice.
Tasks of a Supreme Court clerk including the following:
•Perform initial screening of the 9,000 or so petitions that come to the Court each
term
•Draft memos to summarize the facts and issues in each case, recommending
whether the case should be accepted by the Court for full review
•Write a “bench memo” summarizing an accepted case and suggesting questions
for oral argument
•Write the first draft of an opinion
•Be an informal conduit for communicating and negotiating between other
justices’ chambers as to the final wording of an opinion
CIVIL LIBERTIES
“Your rights as Americans”
Protections that the constitution provides against the abuse of government power.
Civil Rights v. Civil Liberties
The legal area known as "civil rights" has
traditionally revolved around the basic right to be
free from unequal treatment based on certain
protected characteristics (race, gender, disability, etc.)
in settings such as employment and housing.
"Civil liberties" concern basic rights and freedoms
that are guaranteed -- either explicitly identified in
the Bill of Rights and the Constitution, or interpreted
through the years by courts and lawmakers.

Civil liberties include:
 Freedom
of speech
 The right to privacy
 The right to be free from unreasonable searches of
your home
 The right to a fair court trial
 The right to marry
 The right to vote
Where are civil liberties found?
1.
2.
3.
4.
5.
Declaration of Independence
Constitution
Amendments (Bill of Rights/ 14th
Amendment)
Judicial Review
Legislative Action
Constitutional Protections: Article 1,
Section 9
Writ of Habeas Corpus
 “Produce the body”
 Requires government officials to present a prisoner in court and
to explain to the judge why the person is being held
Ex Post Facto
 “After the fact”
 Being charged for committing a crime, that wasn’t a crime when
the person committed the action
Bills of Attainder
 Legislative act that punishes an individual without judicial trial
 Court should decide guilt, not Congress
Bill of Rights
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Free speech, press, assembly, petition, religion
Right to bear arms
Prohibits quartering soldiers
Restricts illegal search and seizures
Provides grand juries, restricts eminent domain, prohibits forced selfincrimination, double jeopardy, “due process” clause
Speedy and public trial, impartial jury, counsel, confronted by
witnesses
Trial by jury in civil cases ($20)
Prevent excessive bail and cruel and unusual punishment
Amendments 1-8 do not necessarily include all possible rights of the
people
Reserves for the states any powers not delegated to Fed. Gov by
Constitution
th
14



Amendment
Privileges and immunities – Constitution protects all
citizens
Due process – prohibits abuse of life, liberty, or
property of any citizen, state rights were
subordinate to Fed rights
Equal protection clause – Constitution applies to all
citizens equally
Judicial Review


Marbury v. Madison
The power of the Supreme Court to judge the
constitutionality of a law
Legislative Action


Sometimes laws can guarantee rights
Ex. Civil Rights Act of 1964
Religion


“Establishment” clause – prohibits the gov’t from
establishing an official church
“Free exercise” clause – allows people to worship
as they please
Free Speech
DOES NOT mean that you can
“say anything you want”… but pretty close
Restrictions
 Threat to national security
 Libel – false written statement attacking someone’s
character, with intent to harm
 Obscenity – not protected, hard to define – Ex.
Pornographic material
 Symbolic speech – action to convey a message

Right to Privacy


Not in the Constitution
Griswold v. Connecticut (1965)
 The
case involved a Connecticut law that prohibited the
use of contraceptives. By a vote of 7–2, the Supreme
Court invalidated the law on the grounds that it
violated the "right to marital privacy".


Roe v. Wade (1971)
Yahoo and Google – search and e-mails?
Due Process




5th and 14th Amendment
Forbids national AND state gov to “deny any
person life, liberty, or property without due process
of law.”
Procedural – fair trial
Substantive – fundamental fairness
Search and Seizure




4th Amendment
Freedom from “unreasonable search and seizure”
Prevent police abuse
Ex. Mapp v. Ohio
Self-incrimination



5th Amendment
No one “shall be compelled to be a witness against
himself.”
Miranda v. Arizona 1966
Right v. Right



Most cases are not simple
They often pit two rights against each other
Ex. – freedom of press v. national security
CIVIL RIGHTS
“Equal Protection”
The rights of people to be treated without unreasonable or constitutional differences.
14th Amendment (1868)


Forbids any state to “deny to any person within its
jurisdiction the equal protection of the laws.”
Sex, race, ethnicity, age, disability, sexual
preference
Civil Rights History
African Americans
 Jim Crow Laws – segregated community
 de jure (by law) and de facto (by reality)
 Plessy v. Ferguson – separate but equal
th
 NAACP – 20 century push for rights
 Brown v. Board of Education – “separate but equal”
unconstitutional
th
 Civil Rights Act of 1964, 24 Amendment (poll tax),
Voting Rights Act 1965
Civil Rights Act of 1964


Voting
Public accommodations
 Barred

Schools
 Gov


discrimination
can force desegregation though litigation
Employment
Federal Funds
Civil Rights History
Native Americans
 2 million people live on “reservations”
 Push for more sovereignty on their land
 Ex.

– gambling operation rights
Art. 1, Sec. 8 – commerce clause give Congress
right to regulate Indian tribes
Civil Rights History
Latino/Latina Rights
 52 million in US…17% of the population (about 10
million in 1980)
 Mexican –34 million…10% of the population-rights
issues include Bilingual education programs,
immigration
 Puerto Rican – 5 million-PR is a commonwealth of
US, citizens can move freely back and forth, not
represented in Congress, don’t have to pay federal
tax
Civil Rights History


Cubans – 1960s, many fled communist takeover by
Castro, “wet foot, dry foot” policy
Central and South American – political trouble is
driving people to US, face similar bilingual and
immigration issues
Marco Rubio
Civil Rights History
Asian American
 14 million in US (2010), 40% of immigrants
 Chinese Exclusion Act 1882 – lasted through WWII
 WWII – Japanese racism – internment
 Korematsu v. US (1944) (internment was
constitutional)
 1980s reparations for internment($20,000)
Women and Equal Rights




Seneca Falls Convention – 1848 – beginning of
women’s suffrage movement
Muller v. Oregon (1908) – 10 hour work day limit
for women
19th Amendment – 1920 – Women vote
1970s – “reasonableness standard” – all legal
circumstance must be treated equal
 Ex.
Cannot set different age limits for driving, but can
set laws on rape that punish man only
Women and Equal Rights

Equal Rights Amendment (ERA) 1972
 “Equality
of rights under the law shall not be denied or
abridged by the US or any State on account of sex.” –
did not pass because…


Rostker v. Goldberg (1981) – Court upheld the
requirement men to register but not women for
draft, ended ERA push
Roe v. Wade (1973) – women’s freedom to choose
abortion
Women and Equal Rights




Civil Rights Act (1964)
Title VII – prohibits gender discrimination in
employment, extended to sexual harassment
Comparable worth – “equal pay for equal work”
Title IX – provide equal funding for all programs
that receive federal funding
Rights for Older Americans



Age discrimination illegal
Age Discrimination in Employment Act raised the
general compulsory retirement age to 70
AARP – interest group – large influence
Rights for Disabled Americans




17% of Americans have a disability
Rehabilitation Act of 1973 - illegal to discriminate
based on disability
Education for All Handicapped Children Act of
1975 – gave all handicapped children free
education
Americans with Disabilities Act of 1990 – protect
disabled rights – SC has somewhat limited this act
Homosexual Rights



1993 – “Don’t Ask, Don’t Tell” – gay rights to be in
the military (ended 9/20/2011)
Bowers v. Hardwick (1986) – law forbidding
homosexuality was constitutional (overturned 2003)
Lawrence v. Texas (2003) – law against homosexual
action violated due process of 14th Amendment –
“life, liberty, and property”
Reverse Discrimination



Equality of opportunity vs. equality of results – Do
civil rights require the absence of discrimination OR
require racial balance?
University of California v. Bakke 1978 – strict quotas
unconstitutional, race can be a criteria for admission
to a public institution
Richmond v. Croson 1989 – city of Richmond could not
guarantee that 30% of companies that received
subcontracts were owned by minorities
Civil Rights summary



Constant pursuit of equality
Civil Rights for minority groups will constantly be
changing
EVERYONE will be a part of some minority group
during their lifetime
OReilly.....extreme point of view. Thoughts?
THE FIRST AMENDMENT
Introducing Civil Liberties
The First Amendment




Originally adopted into the Constitution in 1791
A product of the ratification delay by AntiFederalists
By itself, it protects Americans from the national
government ONLY.
Selective Incorporation
First Amendment





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.
th
14



Amendment
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.
Who Decides How Far Our Rights Go?


The Federal Courts decide (including Supreme).
The Balance Test
People’s
Rights
Govt.
Interest
Common Misconceptions



Our freedoms are NOT UNLIMITED.
Limits usually arise when safety, order, or others’
rights are jeopardized.
Rule of Thumb: You have the right to express
yourself in many ways unless others are offended or
put in harm’s way.
Freedom of Speech


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.
The freedom of speech does not limit expression to
only verbal communication. Non verbal expression is
also protected and restricted.
5 Restrictions to Free Speech
The freedom of speech is very broad, but has 5
restrictions on the content expressed.
1.
2.
3.
4.
5.
Defamation of Character
Obscenity
Fighting Words
Subversive Speech
Commercial Speech
Restrictions to Free Speech:
Defamation of Character


Defamation: An act of communication that causes
someone to be shamed, ridiculed, held in contempt,
lowered in the estimation of the community, or to lose
employment status or earnings or otherwise suffer a
damaged reputation.
Defamation is found in two forms:
 Slander:
spoken lies
 Libel: written lies (pertains to press and…..)
Restrictions to Free Speech: Obscenity


For something to be "obscene" it must be shown that the
average person, applying contemporary community
standards and viewing the material as a whole, would
find (1) that the work appeals predominantly to
"prurient" interest (in the interest of sex); (2) that it
depicts or describes sexual conduct in a patently
offensive way; and (3) that it lacks serious literary,
artistic, political or scientific value.
The main problem with obscenity is the VAGUE
nature of its criteria.
Obscene?



The Virgin Mary by
British artist Chris Ofili.
The work incorporated
elephant feces.
Personally offended by
the piece New York City
mayor, Rudy Giuliani
threatened to cut about
$7 million a year in
funding to the museum
unless the exhibit of
the Holy Virgin Mary
was cancelled.
Obscenity: The 2 Live Crew

The 2 Live Crew was arrested in 1990 in Broward County,
Florida for performing their popular track:
“Me So Horny” from
their album, As Nasty
As They Wanna Be.
The American Family
Association put pressure
on Florida governor Bob
Martinez to pursue the
group in search of
obscenity violations.

Restrictions to Free Speech:
Fighting Words


Fighting Words: words intentionally directed toward
another person which are so venomous and full of
malice as to cause the hearer to suffer emotional
distress or incite him/her to immediately retaliate
physically.
The use of fighting words is not protected by the
free speech protections of the First Amendment of
the U.S. Constitution.
Restrictions to Free Speech:
Subversive Speech






Subversive: Expression that threatens the security of the
United States
Examples: resisting the draft during wartime, threatening
public officials, and joining political organizations aimed at
overthrowing the U.S. government.
Schenck v. United States
“If they ever make me carry a rifle, the first man I want in
my sights is L.B.J." Watts v. United States
The Court ruled that the government could not punish an
anti-war protester who yelled, “We'll take the f***ing street
later," because such speech "amounted to nothing more than
advocacy of illegal action at some indefinite future time."
Hess v. Indiana
Brandenburg v. Ohio
Restrictions to Free Speech:
Commercial Speech



Advertising deserves more protection than other
types of speech because of the consumer's interest
in trustworthy information about products.
We depend on information regarding the quality,
quantity, and price of various goods and services.
Courts must decide:
Is it puffing or false advertising?
 Puffing:
making your product look better than it is
 False advertising: lying to the consumer to sell more
products
Commercial Speech: false advertising


Dannon accused of lying in
advertisements about the "clinically
proven" ability of Activia, to "regulate
digestion" or improve the body's "immune
system". The products cost about 30
percent more than ordinary yogurt.
"Dannon's own studies fail to support this
advertising message, and a number of
them flatly contradict Dannon's claims,"
the complaint says.
Other Types of Speech:
Expression can be in a non-verbal form.
 Symbolic Speech: Expression that may use
actions, symbols, signs, or inaction.
 Examples:
 Texas v Johnson (1989)

 Flag

burning to protest Ronald Reagan in 1984
Tinker v Des Moines (1969)
 Armbands
in school to protest the Vietnam War
Texas v Johnson (1989)



1984:in front of the Dallas City Hall,
Gregory Lee Johnson burned an
American flag as a means of protest
against Reagan administration policies.
Johnson was tried and convicted under
a Texas law outlawing flag
desecration.
He was sentenced to one year in jail
and assessed a $2,000 fine. After the
Texas Court of Criminal Appeals
reversed the conviction, the case went
to the Supreme Court.
Is the desecration of
an American flag a
form of speech that
is protected under
the First Amendment?
Texas v Johnson (continued)…


In a 5-to-4 decision, the Court held
flag burning was protected
expression under the First Amendment.
The Court found that the actions were
expressive conduct and had a
political nature.
“If there is a bedrock principle
underlying the First Amendment, it is
that the Government may not prohibit
the expression of an idea simply
because society finds the idea itself
offensive or disagreeable.”
Freedom of Press

Freedom of Press: the right to publish newspapers,
magazines, books, etc. without government
interference or prior censorship
33% of the world’s countries do not have free press

A close relative of free speech

 Similar
restrictions:
 Defamation
(Libel)
 Obscenity
 Sedition
(against the government)
Freedom of Press


Advances in technology
have redefined the format
in questioning freedom of
press.
Newest to Press
 Email/

text messaging
Difficult to control
 Blogs,
satellite TV, Internet
conversation
Freedom of the Press:
Hazelwood v Kuhlmeier


The principal at Hazelwood School District
deleted 2 pages of edition of the school
newspaper before publishing.
He felt as though the articles on teen
pregnancy and divorce:
 Did
not keep the students' identity secret
 Should not have discussed girls’ use or nonuse of birth control based on younger
student audiences.
 Did not fairly represent a father in a divorce
Freedom of Press:
Hazelwood v Kuhlmeier
In a split 5-3 decision, the Court ruled that the
principal did have the constitutional grounds to
censor the school newspaper
 The paper itself was not a "forum for public
expression" but was rather a "regular
classroom activity."
 Schools can censor material that is:

 "ungrammatical,
poorly written, inadequately
researched, biased or prejudiced, vulgar or
profane, or unsuitable for immature audiences."
Freedom of Religion


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.
Two clauses:
 Establishment
Clause
 Free Exercise Clause
Freedom of Religion

ESTABLISHMENT CLAUSE
 The
government cannot establish a national
religion nor promote any one religion over
another.

FREE EXERCISE CLAUSE
 The
government cannot restrict someone from
worshipping any religion they choose.
Freedom of Religion: Establishment
The establishment clause is referred to as
“the wall of separation between church and state”.
(Thomas Jefferson)
 DESPITE the following:

 Religious
sects are tax exempt
 Chaplains serve in all military branches
 Oaths of office “under God”
 Congress opens with prayer
 Pledge of Allegiance
 Currency
Freedom of Religion: Education


Most establishment clause cases involve schools,
because public schools are funded by taxes and
occasionally restrict/encourage religious activities.
(state/church)
Controversy:
 Prayer
in School
 Student Religious Groups
 Teaching Evolution
 Aid to parochial schools
 Seasonal displays
Freedom of Religion:
Religion and Education






Engel v. Vitale, (1962) - Court finds NY school prayer unconstitutional.
Abington School District , PA v. Schempp, (1963) - Court finds Bible
reading over school intercom unconstitutional
Stone v. Graham, (1980) - Court finds posting of the Ten Commandments
in schools unconstitutional
Wallace v Jaffree, (1985) “ moment of silence” law ruled unconstitutional
a one-minute period of silence for “meditation or prayer” every day
Lee v. Weisman, (1992) - Court finds prayer at public school graduation
ceremonies violates the establishment clause and is therefore
unconstitutional.
Santa Fe Independent School District v. Doe, (2000) - Court rules that
student-led prayers at public school football games violate the
Establishment Clause of the First Amendment.
Deciding Freedom of Religion:
Lemon Test
Based on the case (Lemon v Kurtzman, 1971)
involving public money provided to parochial
schools for teacher’s salaries and materials, a test
was provided by the courts.
The Lemon Test says public aid must:
1.
be secular, or non-religious
2. not promote nor hinder religion
3. not create an excessive entanglement between
government and religion.

Freedom of Religion: Free Exercise


No law and no government action can violate this
absolute constitutional right.
Examples
A
state can not force Amish to attend school beyond the
8th grade.
 A religious official can not be refused the right to run
for public office.
 A school can not force a student to pledge the flag if it
conflicts with their religious beliefs.
Freedom of Religion: The Pledge


Original version: Francis Bellamy (1892)
I pledge allegiance to my flag and the republic for
which it stands: one nation indivisible with liberty
and justice for all.
Cold War version: Eisenhower authorized (1954)
I pledge allegiance to the flag of the United States
of America and to the republic for which it stands:
one nation under God, indivisible, with liberty and
justice for all.
Freedom of Assembly

The First Amendment reads:
 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.
Freedom of Assembly




Assembly, like the other five freedoms, was
intended to protect unpopular expression.
The right to show power in numbers can be an
effective tactic to creating change.
Limits on assembly usually include time, place, and
manner (behavior) of the assembly.
Most municipalities have permit requirements for
organized assemblies.
Notable Assemblies

Marches for civil rights
Birmingham
 Selma
 March on Washington
 Inaugural March (women suffrage)


Groups that have successfully used assembly
Hate groups
 Women
 Veterans
 Gay Rights Advocates

Assembly: Example


The Civil Rights movement of the early 1960s
demonstrates the power and problems with the
freedom of assembly.
Marches in Birmingham, Washington, and Selma
illustrate a large collective voice, progress, and
possible dangers.
Assembly: Skokie 1977






The National Socialist Party of America (a NeoNazi group) planned a march in the town of
Skokie, Illinois, a largely Jewish community.
Some Skokie residents were Holocaust survivors.
Local municipalities put a huge price on insurance
bond (in case of violence) and to prevent the
march.
National Socialist Party was represented by the
American Civil Liberties Union (ACLU) for the right
to march in Skokie.
The United States Supreme Court sympathized
with the Skokie residents, but allowed the
National Socialist Party to march anyway.
Party leader, Frank Collin calls off march.
Marches in Chicago.
Freedom of Petition

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.
Freedom of Petition


The Supreme Court has ruled that the right to
petition the government includes the right to do
such things as picket, mail letters, sign petitions,
publish materials or use other types of
communication to get a message across to the
government.
It is also generally combined with the right to free
speech and the right of assembly to ensure that
people can form groups or associations to get their
messages across.