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Constitutional Law I
University of Alabama School of Law
Fair, Bryan


Constitutional Law

Bryan Fair

Spring 2012

General Principles

v Standard of Review – Carolene Products n. 4

· Rational Basis: The burden is on the challenger to prove that the regulation violates the constitution and does not advance an interest.

· Intermediate Scrutiny: The burden is on the government to prove the validity of the law.

· Strict Scrutiny: The burden is on the government to show a compelling State interest in enforcing the law/regulation.

Religion – Establishment Clause

v Financial Aid

· General Rule – There is no bright-line test that is used, but the Court has inconsistently applied the Lemon v. Kurtzman three-prong test.

o Recent Developments: Justice O’Connor consistently ruled that aid to religious schools was permissible as long as it wasn’t used for religious purposes. Now that O’Connor has been replaced by Alito – the Court could form a 5 justice majority to allow a more accomodationist approach.

· Pattern:

o 1) Aid must be available to public AND private/parochial schools. Aid that is only available to parochial schools is likely to be invalidated. Zelman,

o 2) Aid is more likely to be constitutional if it is given directly to students and not the parochial schools (private choice). Zelman v. Simmons-Harris & Lemon v. Kurtzman, Everson v. Board of Ed.

o 3) The aid will likely be permitted if it is NOT used for religious purposes. Lemon v. Kurtzman, Everson v. Board of Ed.

· Relevant Cases:

Everson v. Board of Education, 1947 –

Facts: New Jersey Board of Ed. allowed for parents to be reimbursed for the cost of school bus transportation to any school, public or private. Much of the funds went to Catholic schools. Everson challenged the practice as unconstitutional

Legal Standard (Black): The establishment clause means at least this –

ü “Neither a state nor the Federal Government can set up a church.

ü Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.

ü Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.

ü No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.

ü No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

ü Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.”

Rationale: The First Amendment “does not require the state to be [religion’s] adversary.” The state offers general services to parochial schools such as “ordinary police and fire protection, connections for sewage disposal, [and] public highways and sidewalks.” Cutting off these generally available services merely to avoid giving “aid” to religion is NOT what the First Amendment requires. General welfare programs are permissible. The funds were given directly to parents/students NOT to the schools.

Balancing Concerns: Courts have to balance the dual concerns of the Establishment and Free Exercise Clauses.

Lemon v. Kurtzman, 1971 –

Facts: RI and PA statutes supplemented the salaries of teachers who taught secular courses at public and private schools in an effort to draw better teachers to the state.

Legal Standard (Burger): Three main evils that the Establishment Clause is meant to prevent – “sponsorship, financial support, and active involvement of the sovereign in religious activity.” “Total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.” Permitted: “fire inspections, building and zoning regulations, and… compulsory school-attendance laws.”

Lemon Test:

1) “The statute must have a secular legislative purpose;

2) … its principal or primary effect must be one that neither advances nor inhibits religion

3) … the statute must NOT foster “an excessive government entanglement with religion.”

a. To determine “excessive entanglement” the court looks at

I. “The character and purposes of the institutions that are benefited”

II. “The nature of the aid that the State provides”

III. “The resulting relationship between the government and the religious authority.”

Rationale: Both laws create an excessive government entanglement with religion. A teacher’s handling of a secular subject may approach it from a religious perspective. Monitoring and censoring any religious perspective in teaching would be an excessive entanglement OR would coerce religious teachers to engage in self-censorship.

Zelman v. Simmons-Harris, 2002 –

Facts: Ohio created a school-voucher program for parents and students to have greater educational choice. The program provided tuition aid for students to attend a participating public or private school. It also provided tutorial aid for students who chose to attend a public school. Participating private schools could NOT discriminate or teach hatred on the basis of race, religion, or ethnic background. 96% of the vouchers were used in parochial schools.

Legal Standard (Rehnquist): “Where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is NOT readily subject to challenge under the Establishment Clause.”

Rationale: If the majority of government aid ends up being spent in religious schools, it is because of private choice, NOT because of government endorsements/decisions.

Dissent (Souter): “The scale of the aid to religious schools… is unprecedented.” Just because a program gives aid to public and private schools does not mean that it passes the neutrality test in effect. There was NOT true private choice in this case – the parents had no choice but to go with the greatest educational opportunity. (Breyer): Enforcing the non-discrimination policy requires an excessive government entanglement.

v School Prayer

· General Rule: Government-mandated prayer/meditation/Bible reading is invalidated (Engel v. Vitale; Wallace v. Jaffree). Voluntary prayers led by teachers are invalid. Clergy-led prayers at graduation ceremonies are invalid (Lee v. Weisman). Student led prayer at football games is invalid (Santa Fe).

o Undecided issues: Government-mandated moments of silence. Student-delivered prayer at graduation.

· Relevant Cases

Engel v. Vitale, 1962 –

Facts: The Board of Regents of NY mandated that a non-denominational prayer be read by teachers at the start of each school day.

Legal Rule/Standard: Neither the fact that a prayer is nondenominational nor the fact that it is voluntary will “free it from the limitations of the Establishment Clause.”

Rationale: The Establishment Clause rests on the “belief that a union of government and religion tends to destroy government and to degrade religion… Religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate.

Dissent (Stewart): Prohibiting prayer in schools denies children the “opportunity of sharing in the spiritual heritage of our Nation.” Congress opens its sessions with daily prayers. The Court begins session with the Crier saying “God save the United States and this Honorable Court.” The phrase “In God we Trust” is on our National Anthem and our coins. “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson.

Lee v. Weisman, 1992 –

Facts: Principals in Rhode Island may invite members of the clergy to offer invocation and benediction prayers at graduation ceremonies for middle and high schools. The principals provided a manual to clergy on how to draft a nonsectarian prayer.

Legal Rule

Religion – Free Exercise Clause

v General Principles

· Rule (via Reynolds v. United States): The First Amendment deprives the government of the power to regulate religious belief, but religious conduct can still be subject to restrictions.

· Rule (via Employment Division v. Smith & Church of the Lukumi Babalu Aye, Inc. v. Hialeah):

o Laws burdening free exercise that are neutral and of general applicability are subject to rational basis review (Smith).

o Laws that are NOT neutral or generally applicable are subject to strict scrutiny. (Hialeah).

Sherbert v. Verner, 1963

Facts: A Seventh-Day Adventist was fired for not working on Saturday. She was then denied unemployment benefits because she had the option of working.

Issues: 1) Whether the denial of benefits imposes any burden on the free exercise of appellant’s religion? 2) Whether any incidental burden on a citizen’s free exercise of religion can be justified by a “compelling state interest in the regulation of a subject within the State’s constitutional power to [regulate]?”

Legal Standard/Rule (Brennan): “The liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or a privilege.” Everson standard: no state may “exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”

Rationale: Forcing a person to choose between faith and receiving public benefit is the same as imposing a fine on his or her religious beliefs.

Dissent (Harlan): “The meaning of today’s holding is that the State must… single out for financial assistance those others whose behavior is religiously motivated, even though it denies such assistance to others whose identical behavior… is not religiously motivated. Those situations in which the Constitution may require special treatment on account of religion are… few and far between.”

Wisconsin v. Yoder, 1972

Facts: Amish parents sued Wisconsin for seeking to enforce their compulsory education laws on Amish children. Isolation from the world is a central belief of the Amish faith. Education at home after 8th grade was also essential for Amish children to learn a trade in Amish society.

Legal Standard/Rule (Burger): “[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Rule: “Where fundamental claims of religious freedom are at stake,” the court must examine the interest held by the State and any impediments to that interest that a religious exemption might create.”

Principle: “A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion. The Court must not ignore the danger that an exception from a general obligation of citizenship on religious grounds may run afoul of the Establishment Clause, but that danger cannot be allowed to prevent any exception no matter how vital it may be to the protection of values promoted by the right of free exercise.”