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Law and Religion
University of Mississippi School of Law
Roy, Lisa Shaw

Law and Religion
Fall 2010
Professor Roy

· Pleasant Grove City case – religious group had beliefs in mummifying pets, etc. They wanted to place a monument in a city park where the 10 commandments were displayed. The city said no and tFreehe religious group sued for specific performance to put in there monument on free speech grounds. They win in the lower court and lose at the supreme court 9-0 (saying this is gov’t speech and they can say what they want).
· Presentations-
§ Can be creative in the way to present
§ Might be oral argument in front of class for both sides
§ Might be more straight forward presentation format for “here are the arguments for one side and here are the arguments for the other side”.
§ Could come up with something creative like Jeopardy or talk show format.

· Salazar v. Bono – involved a cross used by veterans monument in death valley. This was challenged by an individual who was an employee of the park. Congress got involved. ACLU sued to have cross removed saying this is a national monument. Congress sells the particular land under the cross to an private individual. Makes is to the SC on the issue of the land transfer. Court says it is not clear and orders it back to district court.
· Arizona Christian School case- dealing with tax credits for education. Using tax credits to pay for religious education. Coming up in the SC. Funding issue.

· Overview
Ø Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. – U.S. Const., amend. I
Ø Non-establishment (look at bottom of page 2)
Ø Free exercise clause ( understand the difference between non-est. and free exercise)
Ø Speech

· Underlying Values
Ø Liberty/Noncoercion
Ø Equality/Neutrality
Ø Separation of Church and State
Ø Accommodation (a way of valuing someone’s liberty interest)

· Stansbury v. Marks (p.3) – argument that man must violate his religious beliefs in order to follow the law. This is a free exercise claim. Today the argument would be that he needs an exemption from his civil requirement.

· Substantive neutrality – appears neutral on its face, but is not neutral in its application.

· Estate of Thornton v. Caldor – statute is challenged (statute provides employees with the absolute right not to work on their chosen Sabbath) claiming it violates the Establishment Clause of the First Amendment. (Accommodation made)

· Establishment Clause Case:
The Case of Public School Prayersp. 12
The prayer is supposed to be inclusive of many different faiths…challenged on the ground that the school is a political subdivision of the state and that the school has helped organize the graduation and therefore this public prayer and therefore the school has violated the first amendment by coercing the students to stand and participate in the prayer. Separation of Church and State comes into play here where a subdivision of the “state” has engaged in a religious exercise. *Read bold print paragraph on p. 13.*
· Christian Legal Society v. Martinez – case involving CLS and they lost their group status at Hastings because the leadership positions were only for those who adhered to their statement of faith…they terminated their group status saying this discriminated against homosexuals..they lost at the supreme court.
· P. 29 “The Essential Rights and Liberties of Religion in the American Constitutional Experiment” by John Witte, Jr.
Ø Puritans – religion a concern of gov’t, church/state arrangements are to protect religion
Ø Evangelicals – religion not a concern of gov’t, church/state arrangements are to protect religion
Ø Civic Republicans – religion a concern of gov’t, church/state arrangements are to protect gov’t
Ø Enlightenment – religion not a concern of gov’t, church/state arrangement s are to protect gov’t
· Note 1 on p. 35 – Exemptions from the Law. Consider the plight of religious minorities like Jonas Phillips in Stansbury v. Marks. Would he have had to testify on a Saturday in Puritan Massachusetts? No. Who would have offered the strongest support to his argument for an exemption? Probably Puritans and evangelicals. Would any of the groups Witte considers have opposed exemptions in principle?
· Note 2 on p. 35 – Gov’t Sponsored Prayer. Like in Lee v. Weisman (p.12).
FOR MONDAY 56-78, 111-124 ALSO SIGN UP TO TWEN…and pick a presentation panel to sign up for
o P. 56
Reynolds v. United States
· George Reynolds is indicted having to do with bigamy. This issue: whether religious belief can be accepted as a justification of an overt act make criminal by the law of the land. The court must decide what religious freedom exactly has been guaranteed…
· This case looks back at Thomas Jefferson in 1777: “it is declared ‘that it is time enough for the rightful purposes of civil gov’t for its officers to interfere when principles break out into overt acts against peace and good order’”.
· P. 114 Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.
· P. 115 Laws are made for the gov’t of actions, and while they cannot interfere with mee religious belief and opinions, they may with practices….To permit this would be to make the professed doctrines of re

ldren, ages 14 and 15, to school and thereby violated the state’s law requiring attendance at a public or private school until age 16. The Amish parents were convicted of violating the law and were fined $5 each.
· When looking at the test…there was a compelling state interest in education but then when compared to the principles of the Amish…they were educating and producing citizens of the quality of which the state was interested in. They were basically meeting the state interest in a private manner.
· P. 134 It follows that in order for Wisconsin to compel school attendance beyond the 8th grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either
o 1) that the State does not deny the free exercise of religious belief by its requirement, or
o 2) that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.
· Up to this point it seems that the compelling state interest test is the test dealing with Free Exercise Clause.

· Peyote, a hallucinogenic drug, is classified as a controlled substance. Respondents were fired from their jobs with a private drug rehab because they ingested for sacramental purposes (native American church) the drug.
· The standard (Compelling State Interest test) becomes the exception from this case on. Now the court makes the rule line up with that outcome.
· This case points out that Sherbert involved hybrid rights: right to rear your children in the way you wish v. free exercise. Reynolds involved hybrid rights: right to marry v. free exercise
· Smith case is different… The Smith decision can be understood as introducing a fourth concern: the concern that democratically accountable officials should be given latitude to make practical accommodations between religious interest and governmental interests. This case is going back to the view held in Reynolds. Rational Basis Test.

City of Boerne v. Flores
Facts of the Case:
The Archbishop of San Antonio sued local zoning authorities for violating