“I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.” Thomas Jefferson, Letter to Danbury Baptists, 1802

[After citing the above quote from Jefferson] “Coming as this does from an acknowledged leader of the advocates of the measure, [Jefferson’s words] may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.” Supreme Court, Reynolds v. U.S. 1879

“In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’" Supreme Court, Everson v. Board of Ed. 1947

ISSUE: Did the New Jersey statute violate the Establishment Clause of the First Amendment by providing government financial support for religious education?

 

COURT DECISION: No. The Court (5-4) reasoned that providing transit for children was akin to providing fire and police protection for parochial schools. Transportation had nothing to do with the religious mission of the schools.

ISSUE: The First Amendment forbids the government from establishing a religion. Does the daily, voluntary reciting of a prayer in school by students violate this part of the Constitution?

COURT DECISION: The Supreme Court ruled 6-1 that the prayer violated the First Amendment’s “establishment clause” because they believed the government was encouraging religious beliefs in students.

“When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”

ISSUE: Does making state financial aid available to religious schools violate the Establishment Clause of the First Amendment by creating too much government support for religious activities?

COURT DECISION: Yes. The Court ruled 8-0 that the financial aid for parochial schools aided the teaching of religion, and that the "continuing state surveillance" needed to ensure the law was being carried out properly would “entangle” the government with religious practices.  

 

THE “LEMON TEST”To be constitutional, a statute:

1) must have "a secular legislative purpose"

2) must have principal effects which neither advance nor inhibit religion

3) must not foster "an excessive government entanglement with religion."

 

 

At the commencement of the first class each day in all grades in all public schools the teacher in charge of the room in which each class is held may announce that a period of silence not to exceed one minute in duration shall be observed for meditation or voluntary prayer, and during any such period no other activities shall be engaged in.

At issue in Wallace vs. Jaffree

ISSUE: Does a law which authorizes schools to establish a moment-of-silence violate the First Amendment’s “establishment clause?” Was the Alabama law unconstitutional?

COURT DECISION: The Supreme Court ruled 6-3 that the Alabama law was an endorsement of religion. Schools were telling children “you should pray.” The court believed that the Alabama law sent a message to students that the government favored prayer.

In order that the right of every pupil to the free exercise of religion be guaranteed within the schools and that the freedom of each individual pupil be subject to the least possible pressure from the Commonwealth either to engage in, or to refrain from, religious observation on school grounds, the school board of each school division shall establish a daily observance of one minute of silence in each classroom of the division.

During such one-minute period of silence, the teacher responsible for each classroom shall take care that all pupils remain seated and silent and make no distracting display to the end that each pupil may, in the exercise of his or her individual choice, meditate, pray, or engage in any other silent activity which does not interfere with, distract, or impede other pupils in the like exercise of individual choice.

ISSUE: Does a prayer at a public school graduation, led by a clergy member (minister, rabbi, etc.), violate the Establishment Clause of the First Amendment?

 

COURT DECISION: The Court ruled 5-4 that the situation in this case creates "a state-sponsored and state-directed religious exercise in a public school.” The requirement that students stand silently and respectfully represented an indirect and subtle coercion to support religion.

ISSUE: Does a school board policy of permitting student-led, student-initiated prayer at football games violate the Establishment Clause of the First Amendment? COURT DECISION: Yes. In a 6-3 decision the Court held that the District's policy violates the Establishment Clause. The Court concluded that the football game prayers were public speech authorized by a government policy and taking place on government property at government-sponsored school-related events and that the District's policy involved both perceived and actual government endorsement of religion at school events. Such speech is not properly characterized as "private.” In dissent, Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, noted the "disturbing" tone of the Court's opinion that "bristles with hostility to all things religious in public life."

ISSUE: Since the school’s policy of offering a “limited public forum” to community groups was open to other groups holding events in the interest of community welfare — such as Boy Scout meetings — did the school’s concern about the Constitution’s establishment clause justify their denying the club’s application?

 COURT DECISION: No. The court ruled 6-3 that the school did not have a legitimate concern regarding religious establishment and that the club’s free speech rights had been violated.

The school day begins with the Lord’s Prayer. All students must say the prayer aloud under threat of suspension.

A prayer is read aloud by the principal each morning during announcements.

The morning announcements include: “We will now have a moment of silence so that students may pray if they wish to do so.”

At high school graduation, a minister leads the graduating class in a prayer.

ALL OF THESE EXAMPLES VIOLATE THE “ESTABLISHMENT CLAUSE” OF THE FIRST AMENDMENT.

A school that allows clubs to meet in the building during the evening also allows a Bible study group.

A group of students and parents meet every Monday morning at the flagpole to pray together.

A student bows his head and prays during the daily moment of silence.

A group of students say grace at lunch in the cafeteria.

ALL OF THESE ACTIONS ARE ALLOWED AND PROTECTED BY THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT.

A student says a silent prayer before a test.

• Prayer in public schools? No• Prayer in Congress? Yes• Public school chaplain? No• U.S. Army chaplain? Yes• “Advance” religion? No (Lemon)• “In God We Trust” on money? Fine 

“One timeless lesson is that if citizens are subjected to state sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people.”

Justice Anthony Kennedy, majority opinion, Lee v Weisman

"[E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.”

James Madison, Memorial and Remonstrance Against Religious Assessments

“…Almighty God hath created the mind free…” (Jefferson, 1786)

“…no law respecting an establishment of religion…” (First Amendment, 1791)

“…a wall of separation between church and state…” (Jefferson, 1802)

NO• “… indirect coercive pressure…” (Engel v. Vitale)• “…indirect and subtle coercion…” (Lee v. Weisman)• “…excessive government entanglement in

religion..” (Lemon v. Kurtzman)• “…actual or perceived government endorsement of

religion…” (Santa Fe Ind. School Dist. v. Doe)

ISSUE: Does the First Amendment protect the right to urge people to disobey the government?

COURT DECISION: The Supreme Court upheld Schenck’s conviction in a 9-0 ruling. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

When a person’s “speech” creates a situation that is a “clear and present danger” to other people or the nation, it is NOT PROTECTED by the First Amendment.

ISSUE: Did Brandenberg’s speech represent a “clear and present danger,” or was it a statement of opinion that should be protected by the First Amendment?

COURT DECISION: The Supreme Court ruled 8-0 that Brandenberg’s speech, while offensive, was not likely to lead to immediate lawless action and was therefore NOT a “clear and present danger.”

ISSUE: Does the New Hampshire law prohibiting a person from using offensive language toward another in a public place violate the First Amendment’s protection of free speech?

COURT DECISION: Some forms of expression--among them obscenity and fighting words--do not convey ideas and thus are not subject to First Amendment protection. In this case, Chaplinsky uttered fighting words, i.e., words that "inflict injury or tend to incite an immediate breach of the peace."

ISSUE: Mr. Johnson was convicted for disrespecting the American flag by burning it. Should the First Amendment protect someone who hates this country and wants to express such beliefs? Should the expression of certain beliefs be against the law?

ISSUE: Mr. Johnson was convicted for disrespecting the American flag by burning it. Should the First Amendment protect someone who hates this country and wants to express such beliefs? Should the expression of certain beliefs be against the law?

COURT DECISION: The Supreme Court ruled 5-4 that the Texas law forbidding flag burning was unconstitutional because the law made it a crime to express certain political views.

Gregory Lee Johnson was convicted and sentenced to jail…

…not for larceny (stealing)…

…not for arson…

…but for expressing his political views.

ISSUE: Can school officials prohibit the expression of certain beliefs if the method of expression does not disrupt school activities or interfere with the rights of other students? Should students be allowed to discuss controversial topics at school?

COURT DECISION: The Supreme Court ruled in favor of the Tinker children. The Court stated that “students [at school] are entitled to freedom of expression of their views.”

“When a student is in the classroom, cafeteria, the playing field, or on campus during authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.”

Majority opinion of the Supreme Court, Tinker vs. DesMoines 

ISSUE: If Fraser was an adult giving his speech in the “real world,” he would have offended people but he would not have been punished by the government. Do students in school have less freedom of speech than adults in the outside world? Does the First Amendment’s protection of free speech mean that school officials cannot limit obscene and vulgar speech in school? 

COURT DECISION: The Court ruled 7-2 that the school has the authority to prohibit offensive speech at a school assembly. The Court stated that while students have a right to express their views, schools have a duty to teach students socially responsible behavior.

1. Did the school have authority over Frederick’s behavior?2. What was the meaning of Frederick’s message?3. Can schools prohibit the expression of messages that promote the use of illegal drugs at school. 

COURT DECISION: The Court ruled 5-4 against Frederick. Schools can censor messages promoting drug use.

Listen to oral arguments. (34:00)

Watch the CNN video.

ISSUE: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee? COURT DECISION: No. In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection.

The Court developed a test to determine whether material is obscene.

(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient [sexual] interest. . .

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

“I shall not today attempt further to define the kinds of material but I know it when I see it. “

Justice Potter Stewart

1. A person who tries to persuade others to overthrow the government of the United States?

2. A Ku Klux Klan group who burns a cross on one of the members’ private property?

3. A man who makes a speech on a street corner and creates a public disturbance that might lead fights?

4. A group of protesters who are peaceful but very offensive and their ideas make other people angry?

5. A person who burns the American flag to show how much he hates the United States?

6. School students who express their views on issues without causing problems in the classroom or school?

7. School students who express their views on issues and disrupt the orderly environment of the school?

8. Students who use vulgar, obscene or profane language at school?

10. Can the government pass a law that prohibits the display of certain symbols if those symbols make other people angry?

11. Can a public school teacher leads students in prayer at the beginning of class each day?

12. Can a group of students pray at the flagpole before the school day begins.

13. Can four friends say grace together before lunch in the school cafeteria?

14. Can a state law forbid a group of witches from meeting and casting spells?

15. Can a city law require the mayor to be a Christian?

What are the basic legal rights of someone

accused of a crime?

List the basic rights a person should have when they are stopped by police, after they are arrested, while they are awaiting trial, during the trial, and after the conviction.

What are the basic legal rights of someone

accused of a crime?

• To be arrested based on evidence of a crime.

• To know what you are being accused of.

• To challenge your detention.

• To have a fair person (judge) conduct your trial.

• To have counsel (a lawyer) to help you.

• To not be forced to confess.

• To be treated humanely while awaiting trial.

• To have a trial soon after your arrest, but giving both sides enough time to prepare for the trial.

What are the basic legal rights of someone

accused of a crime?

• To be tried in public, not in secret.

• To be able to question witnesses and evidence against you during the trial.

• To present witnesses and evidence on your behalf.

• To have your guilt determined by a fair group of people (typically a “jury of your peers”).

• To receive a punishment that fits the crime.

• To appeal the court’s decision.

• To be treated humanely during time of imprisonment.

DUE PROCESS = FAIR TREATMENT UNDER THE LAW

PROCEDURAL DUE PROCESS

• The procedures or methods that the government must follow in order to treat someone fairly.

• Places limits on executive and judicial branches.

• Examples: right to a lawyer, confront witnesses, appeal outcome.

SUBSTANTIVE DUE PROCESS

• Fundamental fairness under the law. The substance of the law must be just and reasonable.

• It’s “between the lines.”

• Places limits on the legislative branch.

• Examples: reproductive privacy, marry person of your choice, forced sterilization, equal treatment.

FIFTH AMENDMENT

“No person shall... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

FOURTEENTH AMENDMENT

“...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.”

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.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…

Government authorities (police, principals, etc.) cannot search you or your belongings (house, car, bookbag, luggage, etc.) without a reason to believe you are doing something illegal.

…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.

Law enforcement authorities cannot get a search warrant from a judge without “probable cause,” reason to believe that they will find evidence useful in a criminal investigation.

Good reason to believe criminal evidence will be found.

When conducting a search, if police have “probable cause,” they can search:

• You

• Anything “in plain view”

• Anything within your immediate control (“in arm’s reach”)

ISSUE: Dollree Mapp was engaged in criminal activity. The police found evidence of a crime in her house. Should the police be able to use that evidence in court to convict her of a crime?

COURT DECISION: The Supreme Court ruled 6-3 in favor of Dollree Mapp. They determined that Mapp’s right to privacy had been violated by an unconstitutional search. The Court realized that because of this ruling, criminals would sometimes be allowed to go free.

“The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”

EXCLUSIONARY RULE: Evidence obtained in an unlawful search may not be used as evidence in court. (It must be excluded from the trial.)

GOOD FAITH EXCEPTION: Evidence collected by police “in good faith” can be used in court.

ISSUE: The Sixth Amendment guarantees the right to a lawyer, but lawyers are expensive and not everyone can afford one. Should a poor defendant have the help of a lawyer? Does everyone accused of a crime deserve to have a lawyer?

COURT DECISION: The Supreme Court ruled 9-0 in favor of Clarence Gideon. They said it is an “obvious truth” that a person cannot have a fair trial without a lawyer. They ruled that a court must appoint a lawyer to a defendant who doesn’t have one. The decision established guarantees of procedural due process for criminal defendants.

In both Mapp v. Ohio and Gideon v. Wainwright the Supreme Court made it clear to law enforcement authorities that they must ensure “fundamental fairness” in the process used with criminal suspects.

This doctrine was crystallized in the case of Miranda v. Arizona.

ISSUE: Does the police practice of interrogating individuals without notifying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment?

COURT DECISION: The Supreme Court ruled 5-4 that Miranda’s constitutional rights had been violated by the police. The burden is on the police to use a procedure that is "effective to secure the privilege against self- incrimination." If a suspect does not know he has “the right to remain silent” then his confession cannot be used as evidence against him. Miranda’s conviction was overturned.

With Miranda the Court established what it called the “fundamentals of fairness” standard, and signaled that convictions made without meeting this standard would likely be overturned.

• Means “may I have the body.”

• The right to challenge the restriction of your liberty.

• Represents a check by the judiciary against the executive.

• Origins in ancient Anglo-Saxon law. Predates the Magna Carta (1215).

• Part of the original U.S. Constitution.

Article I, Section 9, Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

ISSUE: Who has authority over War on Terror detainees? Do the federal courts have jurisdiction, thus giving the men access to the civilian court system? Or, must the courts defer to the executive authority to capture, hold and try enemy soldiers during a war?

 COURT DECISION: In both cases the Supreme Court ruled 6-3 that “enemy combatants” held at Guantanamo Bay prison have the right to challenge their detention before an impartial judge. The right to habeas corpus is a fundamental right guaranteed to citizens (Hamdi) and non-citizens (Rasul, et al).

ISSUE: Does the use of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?

 COURT DECISION: Yes. In a 5-4 decision, the Court officially ruled that the death penalty is cruel and unusual punishment. In several different opinions totaling over 200 pages, the Justices explored many aspects of the use of the death penalty. Only two believed it is unconstitutional in all circumstances. The arbitrary nature with which capital punishment is applied in the U.S. was a major issue, as was the racial bias against black defendants.

Furman resulted in a four year moratorium on the use of the death penalty as 37 states rewrote legislation to ensure due process in the use of the sentence.  In 1976, in Gregg v. Georgia, the Court ruled 7-2 that the death penalty is constitutional if certain criteria are used to fairly apply the sentence.

“As a young man, I was a death penalty supporter.  Then I spent years as a prosecutor and pursued dangerous felons in court, including murderers.  In the trenches of a criminal courtroom, I learned firsthand that our system of justice is very imperfect.  While it’s a good system designed with the highest ideals of our democratic society in mind, like most of human experience, it is subject to the fallibility of those who participate in it.  I saw people who were poorly served by their counsel.  I saw people wrongly accused or mistakenly identified.  I saw discrimination.  In bearing witness to those things, I came to believe that doing away with the death penalty was the only way to ensure it would not be unfairly imposed.”

Connecticut Governor Dannel P. MalloyApril 25, 2012,

signing his state’s repeal of the death penalty

ISSUE: Does it violate the Fifth Amendment’s “Takings Clause” if a city government takes away private property and transfers it to a private company in the hope that development of the property will lead to economic improvement for the city. Does the “public good” outweigh the right of private property ownership?

COURT DECISION: In a very unpopular decision, the Court ruled 5-4 in favor of the City of New London. The Court determined that taking private property to sell to a private developer was “public use” under the Fifth Amendment. “Public use,” according to the majority, did not mean that the land was literally to be “used” by the “public.” “Public use” could be more broadly defined as having a “public purpose.”

 

 

ISSUE: Does the Second Amendment mean that individuals have a right to own firearms, or only “people” as part of an organized militia such as the National Guard?

COURT DECISION: In both cases the Supreme Court ruled 5-4 that the right to bear arms is an individual right.

HELLER: Second Amendment protects individual right to own firearms for self-defense.

MCDONALD: The right is "fundamental to the Nation's scheme of ordered liberty" and “deeply rooted in this Nation's history and tradition.” Since it is a “fundamental right” it can be incorporated to the state’s under the Fourteenth Amendment’s due process clause.

 

THINGS TO CONSIDER

• Every person has a right to life.

• A person has a right to control of his or her body.

• A woman’s body is “a vessel for new life.”

• At some point, the government has an obligation to protect the life of a developing human being.

• At what point in the development of a new life does the government take control of “the vessel” away from the woman?

• Use of birth control to prevent conception.

• Use of Plan B (levonorgestrel) following unprotected sexual intercourse. (without prescription)

• Use of Plan B only with doctor’s prescription

• Abortion during embryogenesis (the first eight weeks of pregnancy).

• Abortion during early fetal development, but before viability (8 weeks - ???)

• Abortion after fetal viability.

• Late term abortion of fully developed fetus.

ISSUE: 1879 Connecticut law criminalized the use of or encouraging the use of birth control methods.

“Any person who uses any drug, medicinal article or instrument for the purposes of preventing conception shall be fined not less than forty dollars or imprisoned not less than sixty days."

“Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principle offender."

QUESTION: Does the Constitution protect a married couple’s “right to marital privacy” in making decisions about reproduction?

COURT DECISION: Yes. In a 7-2 decision the Court found that the right to marital privacy is a “fundamental right” and the Constitution’s Bill of Rights contains “penumbras” (shadows) that protect the right to privacy.

• Freedom of association (First Amendment)• Protection from government intrusion into one’s house (Third

Amendment)• Protection against unreasonable searches and seizures. (Fourth

Amendment)• Freedom from self-incrimination (Fifth Amendment)• Due process (Fifth and Fourteenth Amendments)• Other rights not listed (Ninth Amendment)

QUESTION: Does the Constitution protect a married couple’s “right to marital privacy” in making decisions about reproduction?

COURT DECISION: Yes. In a 7-2 decision the Court found that the privacy rights identified in Griswold protected a woman’s right to choose abortion in the first trimester of her pregnancy. The Court defined different levels of state interest in the second and third trimesters.

QUESTION: Does the Constitution protect a woman’s right to terminate her pregnancy through abortion?

• In the first trimester, the government could treat abortion only as a medical decision, leaving medical judgment to the woman's physician

• In the second trimester (before viability), the state's interest was seen as legitimate when it was protecting the health of the mother

• After viability, the potential of human life could be considered as a legitimate state interest, and the state could choose to "regulate, or even proscribe abortion" as long as the life and health of the mother was protected.

COURT DECISION: No. The Missouri law did not infringe on constitutional rights. The Court insisted this ruling did not overturn Roe.

QUESTION: Did the Missouri restrictions unconstitutionally infringe upon the right to privacy or the Equal Protection Clause of the Fourteenth Amendment??

1986 Missouri Law

• The “life of each human being begins at conception.” (preamble)• Unborn children have equal rights• State funds cannot be used for abortion counseling• Abortions cannot be performed by state employees or in

publically owned facilities.• Doctors must perform “viability tests” beyond twenty weeks.

COURT DECISION: The Court ruled 5-4 in favor of Planned Parenthood. Pennsylvania laws imposed an “undue burden” on the pregnant woman. (“substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." )

QUESTION: Can a state legislate these requirements without violating the rights established by Roe?

1988 & 1989 Pennsylvania laws• A married woman was required to get permission from her husband

before obtaining an abortion (informed consent).

• A female minor was required to get permission from one parent (with a “judicial bypass” available in some cases).

• All women seeking an abortion were required to wait 24 hours between their visit with the doctor and the performance of the abortion.

In Webster, Casey and other cases, the Court examined the question of fetal viability and concluded the following:

• Fetal viability differs on an individual basis based on fetal weight, size and condition of the uterus, the general health and nutrition of the mother, the availability of medical resources.

• Viability can only be determined by a physician.

• Determining viability is imprecise and is dependent on many variables.

• The point of viability will change with advances in medical technology.

• Legislative provisions that establish viability (usually 20 or 24 weeks) are unenforceable and unconstitutional.

FETAL VIABILITY (def): The potential of the fetus to survive outside the uterus after birth, natural or induced.

• Use of birth control to prevent conception.

• Use of Plan B (levonorgestrel) following unprotected sexual intercourse. (without prescription)

• Use of Plan B only with doctor’s prescription

• Abortion during embryogenesis (the first eight weeks of pregnancy).

• Abortion during early fetal development, but before viability (8 weeks - ???)

• Abortion after fetal viability.

• Late term abortion of fully developed fetus.