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

Professor Fair: Spring 2002

Be able to use the following aspects of the cases:
1. Facts to show similarities/differences to my case
2. Holding
3. Rule of law in the language the court uses
4. Arguments made by majority (rationale for holding and organizational structure)
5. Arguments made by dissent (big/plurality cases)
6. Constitutional provision
· Where more than one constitutional provision could be applied to the case, apply them all; then tell which the Court would be most likely to use based on prior cases.

Standards of Review:
Ø Rational basis scrutiny: court will uphold governmental action so long as 2 requirements met

legislative state objective: government must be pursuing a legitimate governmental objective
rational relation: has to be a minimally rationally relation between the means chosen by the government and the state objective. Only where the government has acted in a completely “arbitrary and irrational” way will this rational link between means and end not be found

Ø Strict Scrutiny: std is hardest to satisfy and will only be satisfied if the governmental act satisfies 2 very tough requirements:

compelling objective: the objective being pursued by the government must be “compelling” (not just legitimate)
necessary means: the means chosen by the government must be “necessary” to achieve that compelling end. The fit between means and end must be extremely tight. (rational relation is not enough)

Ø Intermediate Scrutiny: between the first 2 extremes
1. Important objective: governmental objective has to be “important” (halfway between legitimate and compelling)
2. Substantially related means: means chosen by government must be “substantially related” to the important government objective. (substantially related std is ½ way between rationally related and necessary)

I. Judicial Power

A. Religion & the Constitution
Ø The basic purpose of the Establishment Clause is, in the words of Thomas Jefferson, to erect “a wall of separation between church and state.”
Ø The 1st Amendment applies to all states through the 14th Amendment.
Ø “Congress shall make no law respecting an establishment of religion”

Everson v. Board of Education (1947)
PAGE 1584: Justice Black
Defining Case for what the Establishment Clause means

Relevant Facts: Pursuant to a NJ statute, a local school board authorized reimbursements to parents of money they expended for bus transportation of their children. Some reimbursements went to parents of children attending Catholic schools that gave regular instruction in tenets conforming to the catholic faith.

Holding: We cannot say that the 1st amendment prohibits NJ from spending tax-raised funds to pay for bus fares of parochial students as part of a general program under which it pays the fares of pupils attending public and other schools

Rule/Test/Legal Standard:
The “Establishment Clause” of the 1st Amendment means at least this:
1. No Official Church: neither a state nor the federal government can set up a church.
2. Neither can pass laws, which aid one religion, aid all religions, or prefer one religion over another.
3. No Coercion: Government cannot force or 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.
4. No Punishment for Beliefs: No person can be punished for entertaining or professing religious belief or disbelief, for church attendance or nonattendance.
5. No tax in any amount large or small can be levied to support any religious activities, or institutions … to teach or practice religion.

Rationale: While NJ cannot aid the teaching of religion, it also cannot hamper its citizens in the free exercise of their own religion. It cannot exclude members of any faith, because of their faith or lack of it, from receiving the benefits of public welfare legislation.

Dissent: (Jackson, J. & Rutledge, J.) Two great drives are constantly in motion to abridge the complete division of religion and civil authority, which our forefathers made: a) introduce religious education/observation in public schools; b) obtain public funds to aid/support private religious schools.

Amendment I—“Congress shall make no law respecting an establishment of religion…” The purpose of this clause is to keep government from endorsing or supporting religion.

Lead Opinion: Justice Black, first, dismissed the claim that the practice violated petitioner’s right to due process. The rule that J. Black set out was “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. 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. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 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….” He went on to say that “[the law] cannot 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…[the First] Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.”

Dissent: Jacksonà “In fact, the undertones of the opinion, advocating complete and uncompromising separation of Church and State, seem utterly discordant with its conclusion yielding support to their commingling in educational matters.”
Rutledgeà “Two great drives are constantly in motion to abridge, in the name of education, the complete devision of religion and civil authority which our forefathers made. One is to introduce religious education and observances into the public schools . . . In my opinion both avenues were closed by the Constitution

Zorach v. Clauson­­–NYC’s program that releases public school children during a school day to religious centers for religious instruction. The court does not find a violation of the Establishment Clause (5-4). Justice Black dissents, which is different because this case was almost identical to Everson.

Lemon Test: Lemon v. Kurtzman (1971)

The court uses a 3-fold test to determine whether governmental action violates the Establishment Clause. Only if the action satisfies each of the following conditions will it be valid.

1. Purpose: It must have a secular legislative purpose
2. Effect: Its principal or primary effect must neither advance nor inhibit religion; &
3. Entanglement: It must not foster an excessive government entanglement with religion
4. Political Division: Also, the law must not create an excessive degree of political division along religious lines

Ø Lamb’s Chapel: ban on the use of school facilities must be viewpoint-neutral
Ø Theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views
Ø Content based discrimination is justifiable and will be upheld at times; can’t discriminate within a category (can’t allow one religion and not another)

Sante Fe Independent School District v. Doe (2000)
PAGE 1593: Justice Stevens

Relevant Facts: The Student Council Chaplain delivered a prayer over the P.A. system before football games during the season. While this practice was being challenged in the District Court, the school adopted a new policy that permitted, but did not r

sent: (Justice Stevens) Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for religious purposes may encompass 3 different categories: 1) there is religious speech that is simply speech about a particular topic from a religious point of view; 2) there is religious speech that amounts to worship …; 3) there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith. A public entity may not generally exclude even religious worship from an open public forum. . . . Similarly, a public entity that creates a limited public forum for the discussion of certain specified topics may not exclude a speaker simply b/c she approaches those topics from a religious point of view. (Dissenters feel that GNC is using forum for #3 and this D can limit who uses)

Lead, Thomas: “When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech. The State may be justified ‘in reserving [it’s forum] for certain groups or for the discussion of certain topics.’ The State’s power to restrict speech, however, is not without limits. The restriction must not discriminate against speech on the basis of viewpoint, . . . and the restriction must be ‘reasonable in light of the purpose served by the forum.’” Speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint.

Agostini v. Felton (1997)
PAGE 1628: Justice O’Connor

Relevant Facts: The state took public school teachers and sent them into parochial schools to teach special subjects. Before Agostini, the court believed that such programs would have the primary effect of furthering religion.

· any public employee who works on the premises of a religious school was presumed to incorporate religion into her work
· the presence of a public employee on private school premises created a symbolic union between church and state.
· Any public aid that directly aids the educational function of religious schools impermissibly finances religious indoctrination
· There was excessive government entanglement with religion because the public employees had to be monitored to ensure they did not incorporate religion.

Holding: State supplied teachers may now teach even basic remedial courses on premises at parochial schools as long as the curriculum is carefully kept secular.

Rule/Test/Legal Standard:
· Direct Aid not necessarily invalid: It is not true that “ all government aid that directly aids the educational functions of religious schools is invalid.
· No “Symbolic Union” Problem: It is also not true that the presence of public school teachers in parochial school classrooms will, without more, create the impression of symbolic union between church and state.
· No Excessive Entanglement Problem: Unannounced monthly visits would probably be enough to fulfill this need for monitoring, and would not result in any greater “entanglement” than other programs previously approved by the court