Lesson 21

what does the 14th amendment prohibit states from doing

• making or enforcing any laws which shall abridge the privileges or immunities of citizens of the US

• deny any person w/in its jurisdiction the equal protection of the law

• deprive any person of life, liberty, or property w/out due process

14th amendment lead to the

incorporation of the bill of rights to the states

* due process clause, equal protection clause

1st amendment

what does it prohibit congress from doing

they can make no law

• establishing religion

• prohibiting the free exercise of religion

• abridging freedom of speech

• abridging freedom of press

• the right to peaceably assemble

• the right to petition the gov

Baron v Balitmore 1833

what did the SC say about the bill of rights

opinion by John Marshall

* the bill of rights amendment restricted only the national gov not the states

after the 14th amendment was ratified

how long did lawyers and judges debate the extent to which the amendment due process clause “incorporated“ the bill of rights and made those rights applicable to the states

over the next century

* through different SC cases which slowly lead to the inclusion of the bill of rights for citizens

how did the SC use the 14th to incorporate the Bill of Rights

Due process clause: no person shall be deprived (inferred to include the 1st amendment in cases of religion in schools)

Equal protection clause: no state shall deny any person equal protection of the laws (inferred to mean you have to care about the non religious and the religious and what is fair to the rights established)

due process clause of the 14th amendment

nor shall any state deprive any person of life, liberty, or property without due process

* similar to 5th amendment but that was for the national gov

1st v 14th

* congress’ role

1st: congress shall make no laws

14th Sec5: congress shall have the power to enforce by appropriate legislation the provision in this article

establishment clause

congress can make no law respecting an establishment of religion

* no state churches, no discrimination between dif religions

1st amendement

what is the Lemon test meant to help judges identify

laws or actions of the government that violate the establishment clause

* whether the gov was establishing religion

lemon test 3 steps

1. statue must have secular legislative purpose

2. it is principal or primary effect must be one that advances nor inhibits religion

3. statue must not foster an excessive entanglement w/ religion

free exercise clause

congress can make no law that prohibits the free exercise of religion

* equal treatment

1st amendment

aid to religious institution - movements

1. government must be neutral between religious and non-religious institutions that provide eduction or other social services

2. no taxpayer funds should be given to religious institutions if they might be used to communicate religious doctrine

1947: neutrality

1985: no aid

2017: neutrality

how did the SC change in religious aid cases from 1985 → 2002

shift from no aid to aid of neutrality

what general issue did the SC grapple w/ in Engle v Vitale, Lee v. Weisman, Kennedy v Bremerton?

how much prayer the Consitution allows in public schools

Engle v Vitale

(6/1) 1962

Black

* struck down NY law that required students pray a nondenominational pray led by teachers @ the beginning of the school day

how are the public reactions of engle v vitale and brown v board similar

* Warren Court cases

long standing practices of school prayer were not easily relinquished

Southern Manifesto: demands the overturn of brown

Abington School District v. Schempp

(8/1) 1963

Clark

* struck down Penn law that required teachers to read from bible @ the opening of each school day

what did the SC hold unconstitutional in Engel and Abington

for public schools to lead schoolchildren in prayer or bible reading, even on ostensibly voluntary basis

Wallace v Jaffree (1985) 6/3 Stevens

• struck down Alabama law requiring each school day to begin with a 1 min period of silence for “meditation or voluntary prayer“

  • seen as not motivated by a secular (non-religious) purpose

• reaffirmed the previous cases

how did the SC use Abington and Engel in the Lee v Weisman Case

extended no school prayer to graduation ceremonies

does government sponsored prayer involving adults violate the Establishment clause?

seen as less coercive setting so it is allowed

lee v weisman (1992)

facts

middle school graduation, principal invited rabbi to talk to graduates

* Weisman didn’t want the rabbi to talk at his daughter’s graduation but it happened anyway and the rabbi did conduct a prayer at the graduation

Lee v Weisman (1992)

Q presented

does the inclusion of clergy who offer prayer at official public schools ceremonies violate the establishment clause of the 1st

Lee v Weisman (1992)

decision

5/4

written by Kennedy

• the establishment clause says the gov may not compose official prayers to recite as part of a religious program carried on by gov

• school created a environment of subtle and indirect coercion (stand respectfully and silently) forcing students to act in ways that establish a state religion

lee v weisman (1992)

justice kennedy v Justice Scalia

kennedy (majority): religious activity is pervasive in the history of the court, breaks the rules in place

Scalia (dissent): the court is laying waste to a tradition of nonsectarian prayer to God at public celebrations generally, should allow the historic practices of our people

Kennedy v Bremerton 2022

facts

kennedy was a high school football coach, who engaged in prayer w/ # of students during / after school games

• school district asked him to stop bc of the establishment clause

• kennedy refused and sued for violating his rights under the 1st amendment and civil rights act of 1964

what wrinkle did Kennedy v Bremerton introduce into the constitutional debate that has existed since the SC decided Engle v Vitale

how much the Constitution protects a teacher’s free exercise of religion

1st amendment rights are

protected rights but not absolute rights

Kennedy v Bremerton 2022

Q presented

is a public school employee’s prayer during school sport activities protected speech? if so, can a public school prohibit it to avoid violating the establishment clause?

why did the court uphold Kennedy’s right to pray on the field after games

free exercise and free speech clauses protect an individual engaging in a personal religious practice observance from government reprisal

• he prayed quietly w/out his students

• after the game the Kennedy was not acting as a coach for his players

• the county can’t prove that his prayer serves a compelling purpose

Kennedy v Bremerton 2022

lemon test Justice Gorsuch

Court abandon the test

instead: the Establishment Clause must be interpreted in reference to historical practices and understandings

Kennedy v Bremerton 2022

justice gorsuch v sotomayor

gorsuch (majority): no more lemon, we most consider instead “historical practices and understandings“

sotomayor (dissent): the court has not allow school officials to lead prayer since Engel v Vitale, it affects the constitutional protections of the religious liberty of the students and their parents