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First Amendment
University of Oklahoma College of Law
Tepker, Harry F.

Origins: Jefferson’s Bill and Madison’s Memorial
·       Separation of Church and State
o    Jefferson: to protect government from influences of the church
o    Madison: to protect church from influences of the government
§ “If religion were to remain healthy, it had to remain free from the interfering hand of government.”
·         This is a distinct issue in that we are losing ground on this tenet through the use of government-subsidized churches and faith-based initiatives.
·       “The Wall” of Separation: Jefferson’s letter to Messrs (1802)
o      “religion is a matter which lies solely between man and his God…that the legislative power of government reach actions only and not opinions…thus building a wall of separation between church and state.”
o    There is no true, absolute wall
§ If taken literally, church would have absolute immunity.
§ Jefferson noted man cannot skirt social duties due to duties of God
·       “Nonpreferentialism”: Rhenquist’s idea in Wallace v. Jaffree that it is constitutional to enact reasonable laws preferring religion over non-religion so long as the government does not endorse/prefer any particular sect or denomination.
o    Concerns with this Approach:
§ Constitution would not bar:
·         Preferential treatment to faith-based institutions,
·         Preferential treatment – or absolute preference – for “religious” public school teachers.
·         Providing such absolute incentives would suggest a creation of religious-based everything. 
·         Taxation and spending to carry out a religious mission.
·       Tradition of Religious “Liberty”:
o    Religion is voluntary – authentic worship is a personal and free act. 
o    “Natural Right”
Free Exercise Clause
·       MAIN TEST: Dept of Human Resources of Oregon v. Smith: Constitutional law if:
o    If Law is Neutral (generally applicable), must have Rational Basis for serving Legitimate Govt Interests.
o    If Law is Not Neutral, enforce Strict Scrutiny (Necessary to achieve Compelling Interests).
§ Discriminates against religion
§ Targets religious practice b/c it is religion
·       Church of Lukumi Babalu Aye v. City of Hialeah: law prohibiting ritual slaughter of animals (Santeria religion) was unconstitutional, b/c it was not neutral, failed to satisfy “necessary to achieve compelling ends,” and was not narrowly tailored.
o    Facial Neutrality is not enough – it must be neutral in practice.
·       Locke v. Davey: denial of a scholarship to an individual studying theology is not a violation of the First Amendment, b/c the Court finds no discrimination against religion, yielding the rational basis test. Dissent finds discrimination and a failure of strict scrutiny.
o    This is the GRAY AREA between Establishing Religion and Inhibiting the Free Exercise thereof.
·       Do Superficially-Neutral laws burdening practice of religion offend the First Amendment?
o    Reynolds v. US: “no polygamy” laws are constitutional, b/c Court found the law “neutral” and focuses more on the “peace and good order of society” in judging social norms than the religious interests.
o    Braunfield v. Brown: Sunday closing laws affecting Jewish store owner was constitutional, b/c it wasn’t directly related to the practice of their religion.
o    Sherbert v. Verner: Seventh-Day Adventist’s discharge for failure to work on Saturday was unconstitutional, b/c, unlike Braunfield, the law directly affected petitioner here with no justifying rationale (no proof of fraudulent claims under the guise of religion). 
§ Sherbert Test: balance the burden of individual vs. competing interests of the state. 
·         Statute affecting practice of religion must be narrowly tailored to minimize the burden.
§ Direct Impact based on Religion → Strict Scrutiny.
o    Wisconsin v. Yoder: forcing Amish to send children to school until 16 was unconstitutional, b/c state did not have compelling interest in enforcing two extra years of school on child → Strict Scrutiny.
o    US v. Lee: enforcement of Social Security program against Amish was constitutional under Strict Scrutiny, b/c government interest was compelling.
·       Bottom Line: Apply Peyote case where law is not neutral. Apply Sherbert to cases where the law is neutral. Note the “gray area” discussed in Locke.        
Religion and in Public Schools
·       Lemon Test (Lemon v. Kurtzman):
o    Secular Purpose (genuine, not a “sham,” and not secondary to religious obj)
o    Primary Effect neither advances nor inhibits religion
§ Suggested alternatives to Primary Effect:
·         Coercion: must not coerce (hardly used)
·         Endorsement(O’Connor): cannot “send a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders.”
o    No Excessive Entanglement (no bureaucratic intermingling, surveillance/ supervision, or divisiveness)
·       Religion in Public Schools
o    McCollum v. Board of Education: releasing children to attend religious programs in classrooms violated the First Amendment, b/c the law focused on promoting religious education w/in the public domain.
o    Zorach v. Clauson: releasing children to attend religious programs off school grounds did not violate the First Amendment, b/c neither public funds nor public grounds were used to support the religious classes.
·       Prayer in Public Schools
o    Engel v. Vitale: mandating prayer to “Almighty God” in school is unconstitutional, b/c government is forcing religion – coercion.
o    Abington School Dist. v. Schempp: state law requiring reading of Bible verses each day in public school was unconstitutional based on the obviously religious purpose of the law (Court focused on intent of law-makers).
o    Wallace v. Jaffree: state law authorizing one-minute each day to “meditation or voluntary prayer” in school was unconstitutional based on the improper motives of the legislature. 
§ O’Connor: an authentic law allowing for prayer/silence would be ok.
§ Rhenquist: non-preferentialism makes this law ok.
§ Note: Abington and Jaffree both focus on mal-intent of legislature.
o    Lee v. Weisman(focus case): inviting religious leaders to conduct prayer at high school graduation is unconstitutional, b/c it violates Lemon’s 2nd prong. Much of the opinion revolves around the mandatory attendance of graduation. 
§ Souter: Coercion by government to participate.
§ Scalia: “Speech is not coercive, the listener may do as he likes.”
o    Santa Fe ISD v. Doe: prayer before football game was unconstitutional, even if led by private students, b/c the use of the school’s loud speaker on government property before a govt-sponsored event makes it official government speech.
§ Majority adopts an “endorsement-esk” test to find it impermissible.
o    Good News Club v. Milford Central School: denying access to after-school religious programs on school grounds violated First Amendment, b/c it was viewpoint discrimination in a “limited public forum” that had been opened up non-selectively to a wide range of groups.
§ Note: This, to me, is the appropriate approach to establishment clause. A violation of First Amendment only occurs if access has been denied, not if access has been granted.
o    Bottom Line: look to events surrounding the circumstances to determine:
§ voluntary participation vs. mandatory event,
§ government-sponsored speech (use of government equipment);
§ Consider in terms of endorsement/coercion used in Lee and Santa Fe.
o    Note Mitt Romney’s concern in “Faith in America”: driving religion from the public square essentially creates a religion in itself – secularism.
o    Elk Grove v. Newdow: Undecided case allows schools to state the pledge, offering students the ability to leave. Constitutional?
§ Rhenquist – Yes due to tradition and ability to leave.
§ O’Connor – Yes due to lack of endorsement.
§ Thomas – Yes, b/c, unlike Free Exercise, EC should not be applied to individual rights – only to state protection from federal invasion. 
“Creationism” in Public Schools
·       Epperson v. AR: law prohibiting the teaching of evolution in public school was unconstitutional, b/c the law did not have a secular purpose as evidenced by the “fundamentalist sectarian conviction” of the legislature in creating the law.
·       Edwards v. Aguillard: law requiring that creationism be taught if evolution is included in curriculum was unconstitutional, b/c the “secular purpose” offered by the state was a “sham.”
o    As in Epperson, Court looked to the intent of the legislature.
o    Scalia Dissent: there was secular purpose expressed in the text of the law, and Court acted outside its bounds by supposing the subjective intent of legislature.
·       Dover (Intelligent Design) case?

a C&PD in reference to California statute. 
o    Holmes/Brandeis Concurrence: C&PD requires seriousness, imminence, and likelihood of the speech – disagrees with majority’s deference to the legislature.
·       Dennis v. US: prosecution for teaching communist doctrines was constitutional based on C&PD of the evil. Court considers Gravity of Evil and Probability of Evil (X/Y axis). 
o    This the C&PD diluted, b/c imminence is not necessary if gravity of evil is large
o    Frankfurter Concurrence urges Case by Case Balancing: “Absolute rules would inevitably lead to absolute exceptions, and such exceptions would eventually corrode the rules.”
·       Brandenburg v. Ohio: Ohio statute allowing for prosecution of Ku Klux Klan leader for advocating action against US to protect “whites” was unconstitutional, b/c no C&PD.
o    Current Test: Advocacy must be directed to (i.e. “intent”) inciting or producing imminent lawlessness action and is likely to incite or produce such action. Mere Advocacy is not enough.
o    Whitney is overruled.
o    Look to the words of the speech
Fighting Words and Hostile Audiences
·       Unprotected Fighting Words: “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
o    Direct personal insults or personally abusive epithets intentionally designed and inherently likely to provoke hostile reaction.
·       Analysis:
o    Look at statute – what is being restricted?
o    Look at words – protected or unprotected?
o    Look at Standard of Review –
·       Chaplinksy v. New Hampshire: the conviction of a Jehovah’s Witness for making statements that the city council was “God damned racketeers” and “facists” was constitutional, b/c the words were unprotected fighting words. Not all speech is protected – govt may restrict.
o    Categories of Unprotected Speech (yielding Rational Basis test):
§ Incitement
§ Fighting Words
§ Threats
§ Defamation
§ Obscenity
§ Commercial Fraud
o    Categorical Balancing:
§ Balance: low value of speech vs. social interests in protecting against
§ If it falls within this category, apply Rational Basis to the statute.
·       Terminiello v. Chicago: conviction of breach of peace for viciously denouncing political and racial groups to an angry crowd was unconstitutional, b/c the statute allowed restriction of speech where there was no likely C&PD beyond “public inconvenience, annoyance, or unrest”
o    Saying unpopular words is not enough – must rise to a level likely to incite breach of peace.
·       Feiner v. NY: conviction of disorderly conduct for making speech encouraging “negros” to “rise up in arms” to an angry crowd was constitutional, b/c the conviction was based, not on the speech, but on the need to control a public crowd and prevent a riot.
o    Nitro was too close to the glycerin – look to the speaker’s intent and the crowd’s reaction to determine if words will likely cause breach of peace.
·       Cohen v. California: conviction for offensive conduct for wearing a jacket stating “Fuck the Draft” was unconstitutional, b/c the “boundless state goal” of preserving the peace created an over-suppression of ideas where the speech was not directed at anyone, there were no personal insults expressed, and the likelihood of a hostile reaction was very minimal.
o    Avert your eyes if you do not like it.
o    “States do not have power to regulate a ‘suitable level of discourse within the body politic’ unless they fall within a general category of unprotected speech.”