Civil lib Exam 2

SECTION TWO: THE CONTENT OF THE LAW - FREEDOM OF RELIGION

The Doctrine of Incorporation: a legal principle that applies part of the Bill of Rights to the states through the 14th Amendment’s Due Process Clause

Significance: citizens have the same fundamental rights at the federal and state levels

The Problem (Before the Doctrine):

Congress shall make no law… (prohibiting religion)
- 1st amendment was intended by the framers to only address Congress
- Can SC?
  - No- the 14th amendment says no state shall deprive … liberty
    - Liberty applies to all the freedoms in the 1st amendment
- Solution
  - “Rewrite” the Constitution
    - Really means reinterpret
  - 14th amendment Due Process Clause
    - Criticism- stuck all of the rights from the bill of rights into one word “liberty”
    - Over time all but 3rd and 7th jury for civil

Freedom of Religion

Super important to the framers
- 1st thing mentioned in the 1st amendment
Super/pretty important to (some) of us
2 parts of freedom of religion-
- Establishment Clause
  - Not on test
  - Most cases, boring
- Free Exercise Clause: “Congress shall make no law prohibiting the free exercise of religion”
  - Legal Issue: Does the free exercise clause of the 1st amendment protect…
    - Or: Can the gov regulate/ban…

Step 1: Defining Religion, Is it a “Bona Fide” Religion

What is/makes a “religion”?
1. Challenge of developing a legal rule
  1. Real v. Fake religion
  2. “Minority” religions v. made up
  3. Need a definition that is broad enough but not too broad
2. Scotus Struggles, looking for a legal rule
  1. Reynolds v US (1879)
    1. Look to religion at the time of the framers?
    2. Problem- there are new religions
    3. Rule- The government can limit religious practices if they are “subversive to the good order” (Belief-Action Distinction)
  2. Davis v. Beeson (1890)
    1. Rule- Religion “has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will?
  3. US v. Ballard (1944)
    1. Rule: a religion is legitimate if it is a sincerely held belief, not if it is true.
      1. Do not want to get involved in finding out the truth, much can’t be proved
3. “Conscientious objectors”- can get out of the draft if religions says you can’t fight
  1. Congress previous rule: religion is “belief in relation to a Supreme Being”
  2. US v. Seeger (1965)
    1. Rule- Parallel position test: belief is “sincere and meaningful” and occupies a place in the life of its possessor parallel to … the orthodox belief in God.”
      1. Is the belief as important to you as someone who believes in God?
  3. Welsh v. US (1970)
    1. Refused to enter the military, I'm not religious, I just think killing is wrong
    2. Even moral/ethical beliefs can be religious/protected as long as they are held as sincerely as people hold traditional religious beliefs.
  4. Gillette v. US
    1. Won’t fight a specific group/war (Vietnam)
    2. Court- Gillette lost
Does the individual have a “bona fide” religion?
1. Importance- so they can have protections under the free exercise clause
2. Problem- difficult to determine what constitutes a religion
  1. Anything could be a religion
3. Defining a religion
  1. The Legal Rule- Combine the sincere and meaningful test with parallel test
    1. Can be ethical, moral, or religious

Step 2: Exercising Religious Freedom

What can you do as an exercise of that religion?
1. Text of the 1st amendment
2. Has to be some line against extremism
  1. Reynolds v. US
    1. Rule- if it is “subversive to the good order” , the religious practice is unconstitutional
    2. Problem- only came up with it because they don't like mormons/polygamy, what is the “good order”
  2. Pierce v. Society of Sisters
    1. Combined with rule from reynolds
    2. Rule- Government can regulate action “in violation of social duties or subversive to the good order” and that is not “useful and meritorious” (for society)
  3. Cantwell v. Connecticut
    1. Rule- Valid Secular Policy Test
      1. Can regulate religious conduct if the regulation is a valid secular policy
      2. Secular = not religious
      3. Valid = legitimate = some reasonable goal
        Can't target one or specific groups
    2. Argument- making society better
    3. Must be all rules (and) must be one (or)
3. Defining VSP
  1. Minersville School District v. Gobitis: upheld VSP, promoting patriotism is a valid secular policy
  2. Prince v. Massachusetts: The state had a VSP to regulate child labor
4. After VSP, arrival of the Warren Court
  1. Braunfeld v. Brown
    1. Applies reynolds, can apply rulings as long as they are not overturned
    2. New modified VSP test
      1. Adds more stuff the gov will have to show to prohibit free exercise
  2. Sherbert v. Verner
    1. New rule: Not VSP, because Sherbert would have lost
    2. Compelling State Interest Test-
      1. Is the government policy burdening (indirect or direct) on her exercise of religion?
        Dependent on choice
        Burden is she is forced to make a choice between her religion and her job, gov is indirectly putting her in that position
      2. Is there a compelling state interest?
        Compelling is a much higher burden on the government than valid
        “No showing of a rational relationship to colorable state interest” will suffice
      3. Was the method used the least restrictive means?

Could have stopped fraud by investigating her religion
Failed to use least restrictive means

Review: How to Make up Constitutional Law

The Supreme law (Constitution) says…. “Congress shall make no law… prohibiting the free exercise of religion”
The Supreme Court says
- Congress means anyone in a government position
- No law means some law, freedom to believe v. freedom to act
- Religion means any belief that passes sincerity/parallel position test
- Prohibiting free exercise means…
  - Rule 1- subversive/useful and meritorious
  - Rule 2- the VSP
    - Effect on religious conduct
    - Neutrality
    - Rule applied in Cantwell
Difference between the real world and the legal world
Interpret v. Intent
- When the government follows the established legal rule, they can prohibit the free exercise of religion constitutionally
  - Is not prohibiting free exercise if it meets the legal rule

No Doesn’t Mean No (so what does anything in the Constitution mean?)

Can the government prohibit free exercise….
- It Depends on…
  - Which rule is being used, VERY IMPORTANT
    - Others: The religion, the action

Summary:

Bona Fide Religion, parallel position test
Can the government restrict the exercise
1. Useful and meritorious, subversive to the good order
2. VSP test, if one religion is burdened doesnt matter
3. Compelling State interest
  1. Burden
  2. CSI
    1. Why does the government have that policy? What is their goal?
    2. Is that answer compelling enough?
      1. Fraud is not a compelling interest
  3. Least Restrictive Means
    1. Any other way that is less burdensome to the free exercise of that religion

CSI Applied

High hurdle of CSI: Strict Scrutiny is “Strict in theory, fatal in fact…”
- Said by Justice O’Connor
- In theory it's a high hurdle, in reality the government will always fail the test
CSI known as “strict scrutiny”
- Very big burden on the government
New Court (Burger)
- New justices can change the constitution
- Wisconsin v. Yoder
  - Fits with Prince v. Mass
    - Does Not- Protecting kids wins
  - Wisconsin-
    - Protecting kids doesn’t win
    - Reframe it, not about protecting kids
      - Forcing kids to get to the 12th grade
      - They only had two years left