POSC 419 Final Study Guide
POSC 419 Final Study Guide Posc 419
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Richmond POSC 419 Study Guide Establishment Clause Freedom of (and from) Religion o “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” o Establishment Clause and Free Exercise Clause o Tension between the clauses? o Protection of acts and protection of beliefs o Free exercise clause applied to states in 1940 in Cantwell v. Connecticut. o Establishment clause applied to states in 1947 in Everson v. Board of Education of Ewing Township. What’s included in “religious freedom?” o Joining and forming religious organizations o Worshiping freely o Expressing one’s beliefs openly, even if they contradict the beliefs widely held by the majority or contradict government policy Nonpreferentialism o Nonpreferentialism: Government cannot favor one religious group over another, but can give aid to religious groups if they are treated equally and the aid furthers a public purpose. o Public purpose does not have to be a secular purpose. o Government cannot endorse any particular religion. o Direct aid to religious schools Strict Separation Approach (“Benevolent Neutrality”) o State must be neutral with regard to religions o Legislation must have a secular purpose o Legislation can benefit religion indirectly as long as it’s neutral o School vouchers that can be used for secular (private) schools or religious schools Strict Neutrality o Secular purpose for legislation o Prohibits all laws that either aid or hinder religion (directly or indirectly) o School vouchers that can only be used for secular private schools Accommodationist Approach o Laws must have a secular purpose. o Government can accommodate religion in ways that further religious freedom without endorsing a particular religion. Establishment Clause Cases Everson v. Board of Education of Ewing Township (1947) o Local school board provided for reimbursement to parents with children in private schools for cost of busing their children. o Most of the private schools in this district were Catholic schools. o New Jersey statute allowed school districts to make their own rules for transportation. o Is the New Jersey statute a law “respecting the establishment of religion?” o Original intent: Court looks to historical background of establishment clause’s adoption. o Some of the colonies (and states in early U.S.) had established churches supported by taxes or compelled tithes. o 178586: Virginia Statute of Religious Liberty passed and Virginia legislature did not renew support for established church. o Intent of First Amendment, like Virginia statute, to provide protection against government intrusion on religious liberty. o Does the statute here use taxpayer funds to support religious institutions, or does it simply benefit the welfare of the general public? What the state cannot do: o Establish a church o Pass laws aiding one religion, aiding all religions, or giving preference to one religion over another. o Force or influence a person to go or not go to church, or force her to profess religious belief or disbelief. o Punish someone for religious belief or disbelief. o Punish someone for attendance or nonattendance at religious services. o Levy taxes to support activities or institutions that teach or practice religion. o Participate in the affairs of religious organizations or groups (or allow those groups to participate in the affairs of the government). o Exclude someone, because of their faith (or lack thereof), from receiving benefits of public welfare legislation. o The state must be neutral between religious groups, and between believers and nonbelievers. o Neutrality does not mean the state has to be adverse to religion. o NJ statute is a general public welfare law that benefits students attending public and private schools. o The fact that students attending religious schools will benefit, as part of a program to aid the general welfare, does not make the program a law “respecting an establishment of religion.” o Strict separation or “high wall” theory of separation—but still allows benefit to religion if law’s purpose is to benefit general welfare (benevolent neutrality). Engel v. Vitale (1962) o School district required recital of nondenominational prayer at the beginning of school day. 1 o Establishment of religion clearly means that government cannot compose official prayers for a group to recite as part of a religious program carried on by the government. o Review some of the same history as Everson (both written by Black) o But the prayer is “nondenominational” o Students can opt out by remaining silent or leaving the room. o Why don’t these factors matter to the Court? o The Establishment clause is violated by any law that establishes an official religion, even if that law doesn’t directly coerce nonbelieving individuals. o Also indirect coercive pressure of government approval of religion. o Stewart’s Dissent: What about our own opening prayer? Abington School District v. Schempp and Murray v. Curlett (1963) o State laws requiring schools to begin each day with Bible readings. o Children could be excused from Bible reading at written request of parents. o Murray v. Curlett involved Baltimore schools. o Overlap of Establishment and Free Exercise clauses—both provide grounds for neutrality. Religious freedom implies government should be neutral just as much as prohibition on religious establishment does. o Establishment clause test: What are the purpose and the primary effect of the enactment? o If purpose or primary effect is the advancement or inhibition of religion, then it violates the establishment clauses. o Must be a secular purpose and a primary effect that neither advances nor inhibits religion. (Wall of Separation) o Difference between free exercise and establishment clause: violation of Free exercise requires showing of coercion, but violation of Establishment clause possible without coercion. o The required bible reading in Schempp is a “religious ceremony”, and intended to be so by the state, so clearly an establishment clause violation. o School district in Murray argues for secular purpose—promoting moral values, perpetuation of institutions, teaching of literature. o Readings, without comment, from the Bible clearly have a religious purpose. o “Optout” provision also points to religious character of the readings. Lemon v. Kurtzman, etc. (1971) o The retreat from the “strict separation” approach. o Pennsylvania and Rhode Island provided state aid to religious schools—supplement or reimbursement of teacher salaries, reimbursement for textbooks and instructional materials in certain secular subjects. o Funds couldn’t be used to support salaries of teachers actually teaching courses in religion. o Most of this aid went to religious schools, especially Catholic. The Lemon Test o 1) Statute must have a secular legislative purpose; o 2) Principal or primary effect of statute must be one that neither advances nor inhibits religion; o 3) Statute must not foster an excessive government entanglement with religion. o Intent: No evidence of intent to advance religion. o Effect: Not necessary to decide if “primary effect” advances or inhibits religion. o Entanglement: “Cumulative impact of the entire relationship arising under the statutes . . . Involves excessive entanglement between government and religion.” Excessive Entanglement Test: o 1) Character and purposes of the institutions benefited; o 2) Nature of the aid the state provides; o 3) Resulting relationship between government and religious authority. o Schools clearly have religious purpose. o Aid is to teachers, who may have difficulty remaining religiously neutral in a school operated by their own faith and meant to advance its principles. o Rhode Island statute allows state to inspect and evaluate religious content of school curriculum. o Direct aid to schools is more problematic than indirect aid as in Everson. o Potential for political divisiveness resulting from aid to religious schools. Wallace v. Jaffree (1985) o Alabama law authorized schools to start each day with a moment of silence for “meditation.” o Law amended in 1981 to provide a period for “meditation or voluntary prayer.” o Teachers actually led children in “voluntary” prayer. o Plaintiff’s children were “ostracized” if they didn’t participate. o Plaintiff had asked for prayers to stop, without success. o Application of Lemon Test o Purpose—clearly to endorse religion—”to return voluntary prayer to public school.” o No evidence of secular purpose. o No need to apply the other parts of the Lemon Test because it fails this one! o Dissent – Evidence from founding era that “Wall of Separation” was not intended interpretation of First Amendment. Originalism with a different conclusion. Lee v. Weisman (1992) 2 o Prayer at a public school graduation ceremony o Weisman is Jewish o NonSectarian Prayer given by Rabbi o GHWB Administration argued Court should abandon Lemon test where a practice is “noncoercive, ceremonial acknowledgement of the heritage of a deeply religious people.” o Majority refuses to reconsider Lemon test. o “Statesponsored and statedirected religious exercise.” o A reasonable person could feel they are being required to participate in a religious exercise. o Dissent is skeptical of the “coercion” argument o Dissent also anticipates the “under God” controversy in Newdow. Elk Grove Unified School District v. Newdow (2004) o School children led by teacher in pledge of Allegiance, which contains “under God.” o Newdow (father) was awarded shared “physical custody” of daughter but mother had sole “legal custody.” o Standing: defines who may bring a claim that government action violates the Constitution. o In order to have standing, you normally must be injured by a government action. o Having legal custody allows you to sue on someone else’s behalf. o Newdow argues right to expose his daughter to his own religious beliefs gives him standing. o Right to influence religious upbringing does not mean you have right to sue for your child when you lack legal custody. o Disagreement between parents o Custody matter decided by the states, and Court defers to them on who has legal custody. o Possible adverse affect on child. o What about the merits? Rehnquist says not a religious exercise as in Lee v. Weisman. o Is there coercion? o O’Connor would abandon Lemon test for “endorsement” test: Government must not make a person’s religious beliefs relevant to his or her standing in the political community by conveying a message that religion or a particular religious belief is favored or preferred.” o Not an endorsement based on four factors: o 1) History and Ubiquity o 2) Absence of Worship or Prayer o 3) No reference to particular religion o 4) Minimal Religious Content Van Orden v. Perry (2005) o Ten Commandments monument in a public park surrounding Texas capitol. o Is this an “establishment of religion?” o Doesn’t discard Lemon test, but doesn’t apply it o Lemon test “not useful” in dealing with a “massive monument.” Why not? o “Passive” use of religion o “Dual purpose”—partaking of both religion and government o Acknowledges role of Ten Commandments in American heritage o Mentions depictions of Moses in Supreme Court building o What standard is actually being applied here? o Breyer’s concurrence: Establishment clause meant to avoid “religiously based divisiveness” and that type of divisiveness would be encouraged, not discouraged, by removing this monument. Why? o Breyer also believes it would probably pass Lemon standard, but thinks basic purpose of establishment clause is more important than that test. McCreary v. ACLU of Kentucky (2005) o Ten Commandments on Courthouse lawn o “Secular purpose” prong of Lemon test o Counties passed resolutions declaring Ten Commandments a “precedent legal code” for Kentucky’s laws o Second display added historical documents with Christian and theistic references. o Third display on “Foundations of American Law and Government” included other historical documents, not all with religious references. o County initially candid about religious motivation, but later claimed educational purposes. o Counties ask for “purpose” test to be abandoned. o Court says official objective can be discerned from “readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts.” o Judge purpose objectively: text itself, legislative history, implementation of the statute or resolution, etc. o Can’t negate the original religious purpose just by adding some secular documents. o Fails the “secular purpose” prong of Lemon test. o Reendorses principle of (benevolent) neutrality from Everson. Zobrest v. Catalina Foothills School District (1993) o Individuals with Disabilities Education Act meant to ensure that disabled students have the same access to education as those without disabilities. o Zobrest’s parents wanted school district to pay for sign language interpreter to accompany him to Catholic high school. 3 o Does the establishment clause prevent public funds from being used to pay for the interpreter? o Public not paying Catholic school for costs they otherwise would have had to bear, such as textbooks or equipment. o The school still assumes all costs it otherwise would have assumed in educating its students. o Not the same as paying a teacher; interpreter will just convey what teachers say, so they are not paying someone to engage in sectarian teaching. o Aid is going to the student, not to school. o Lemon test? Blackmun’s Dissent The petitioners admit that the interpreter conveys religious messages—in religion classes, secular subjects taught from a religious perspective, and daily masses at which attendance was encouraged. Government cannot “furnish the medium for communication of a religious message.” Allowing the interpreter would be advancing religion impermissibly. Rosenberger v. The Rector and Visitors of the University of Virginia (1995) o Christian student group at UVA eligible for student activity funds, but no student groups eligible for funding for “religious acitivites.” o “Religious activities” is an activity that “primarily promotes or manifests a particular belief in or about a deity or an ultimate reality. o Wide Awake Production (WAP) denied funding to print Christian newspaper o They argued this was a free speech/free exercise violation, lower courts saw it as an establishment clause issue and ruled against WAP. Majority Opinion (Kennedy) UVA engaging in viewpoint discrimination—clearly a free speech problem. Is this discrimination permitted because UVA has to comply with establishment clause? University’s guidelines do not allow payments on behalf of “religious organizations,” those “whose purpose is to practice a devotion to an acknowledged ultimate reality or deity.” WAP sought funding as a student journal, not religious organization. University provides printing services to a “broad spectrum” of student newspaper regardless of their viewpoints. Printing is “secular service” for “secular purpose,” benefit to religion is incidental. By engaging in viewpoint discrimination, the University actually requires public official to “scan and interpret” student publications to determine whether they “primarily promote or manifest a particular belief in or about a deity or an ultimate reality.” This undermines, not encourages, neutrality. Wide Awake’s mission in a letter from the editor: “[T]o challenge Christians to live, in word and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship with Jesus Christ means.” Dissent (Souter) Majority “approves direct funding of core religious activities by an arm of the State.” WAP engaging in evangelism, not just discussing or analyzing news from a religious viewpoint. University funding guidelines prohibit funding for all religious activities, not just those associated with Christianity, and are therefore neutral. Agostini v. Felton (1997) o Elementary and Secondary Education Act (1965) meant to provide educational opportunities to low income students, in part by providing federal funding to schools with high percentage of students from lowincome children. o Because of ESEA requirements, NYC sent public school teachers to Catholic schools to provide remedial education to disadvantaged children. o In Aguilar v. Felton (1985), Court found this to be “excessive” entanglement in violation of Establishment clause. o NYC then sent teachers and “mobile classrooms” to park on streets near the schools, and students brought to the vans for remedial instruction. o School Board and a group of parochial school parents trying to have Aguilar overturned, after Supreme Court signaled its willingness to do so. Majority (O’Connor) The criteria in Lemon still apply. Criteria used to determine whether “aid to religion has an impermissible effect” have changed. Government cannot advance religion. But Zobrest recognized that placing public employees on parochial school grounds does not necessarily result in an impermissible state advancement of religion or “symbolic union” between government and religion. Court also subsequently decided that government aid which directly aids educational function of religious schools is not invalid if the aid is made available generally without regard to whether the educational institution is sectarian/nonsectarian. Paying for teachers who will provide remedial education in parochial schools does not advance religion through indoctrination. The Title I educators are paid to provide remedial education. No reason to believe that setting foot in a parochial school will cause them to abandon this role and partake in religious indoctrination. “Symbolic union” argumentno difference in this and having the remedial instruction done in a van just outside school property. 4 Reversed Aguilar. Zelman v. SimmonsHarris (2002) o Ohio “Pilot Project Scholarship Program” provided school vouchers for innercity Cleveland, Ohio residents; 96% of the students receiving voucher money went to religiouslyaffiliated schools. o Group of taxpayers challenged the voucher program. o Valid secular purpose: providing educational assistance to poor children in a failing public school system. o Does the program have the effect of advancing or inhibiting religion? Majority (Rehnquist) This is a program of private choice, not direct aid to religious schools. “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.” Souter’s Dissent Is the person benefitting from the aid “genuinely free to send the money in either a secular direction or a religious one?” 56 private schools participate in the voucher program; 46 are religious. $2500 cap on vouchers Nonreligious private schools accepted very few voucher students; their tuition tended to be higher than $2500. Average tuition at participating Catholic schools only $1,592. Free Exercise Free Exercise of Religion o Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . o Individuals are free to choose their own religion, or no religion. o Freedom with respect to religious practice is not absolute. o Laws with secular purpose may burden religious freedom. o But sometimes the Supreme Court accommodates religious practice, even if it means allowing an exemption to generally applicable law. Sherbert v. Verner (1963) o Sherbert refused to work on Saturday because her religion (Seventh Day Adventist) observed Saturday as the Sabbath. o She failed to find other employment because of her unavailability for Saturday work. o Her employer fired her and she filed for unemployment benefits from state of South Carolina. o Unemployment agency denied her claim because of her unavailability for Saturday work. o State law prohibited awarding benefits to anyone who failed, without good cause, to accept suitable work when offered. o Sherbert says the law is unconstitutional as applied to her because it abridges free exercise rights. o Issue 1: Does the disqualification for benefits burden Sherbert’s free exercise rights? o Yesshe is being forced to choose between following her religion and forfeiting benefits she is otherwise entitled to, or abandoning one of her religious beliefs to accept the benefits. o Issue 2: Does South Carolina have a compelling state interest that justifies the burden on Sherbert’s rights? o State’s claim: protecting against fraudulent claimants. But nothing in the record to support this. o Even if this was a real danger, state would have to show that no alternative means of regulation would prevent such abuses without infringing First Amendment rights. The Sherbert Test o 1) Has government burdened an individual’s free exercise of religion? o 2) If so, is there a compelling state interest that justifies the burden? o 3) Is the law or government action narrowly tailored to achieve that compelling state interest? (The state must show that there is no alternative policy that would avoid the burden and still achieve the compelling state interest). Wisconsin v. Yoder (1972) o Compulsory school attendance law required children to attend public or private school until 16. o Amish parents convicted under this law because they withdrew children from school at ages of 14 or 15 after completing 8 grade; claimed that compulsory attendance law violated free exercise. o Amish object to high school education because it exposes children to values contrary to the Amish way of life and takes them away from the community during formative adolescent years. o Does the compulsory attendance law violate the Free Exercise rights of Yoder, et al.? o States have responsibility for education and have power to establish attendance laws. o State interest must be balanced with fundamental rights and interests. o “Only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” (Seems to be a recognition of Sherbert test) o Court examines whether Amish religion actually burdened—must examine whether Amish religious faith and “way of life” are inseparable and interdependent as they claim. o Can’t allow every person to make their own standards on issues in which society as a whole has an important interest. o Compelling interest in compulsory education? o 1) Preparing citizens to participate in political systemnecessary to maintain freedom and independence. o 2) Prepares individuals to be selfreliant and selfsufficient participants in society. 5 o Court accepts these interests, but no evidence that additional one or two years of schooling would better prepare Amish children for life in the “separated agrarian community” in which they live. Employment Division v. Smith (1990) The Retreat from the Sherbert Test o Smith and Black fired from jobs as drug rehab counselors because they took peyote during religious ceremonies. o They applies to state for unemployment compensation, but state denied them because their discharge was for workrelated misconduct. o Oregon Supreme Court ruled in favor of Smith and Black, applying the Sherbert test. o Oregon appealed to U.S. Supreme Court. o Different from Sherbert and similar cases involving unemployment claims because they did not involve illegal conduct; here the use of peyote was illegal under Oregon law. o The law making peyote illegal is not directed at their religious practice. o Prohibition on peyote for nonreligious reasons is constitutional. o If burdening the exercise of religion is not the object of the law, but merely the incidental effect of a neutral, generally applicable, and otherwise valid law, the Free Exercise clause has not been violated. o Refuses to apply Sherbert test because the only cases where that has been used to invalidate government action involved denial of unemployment compensation where applicant would not work under conditions violating their religious beliefs. o Does this distinction matter? o None of the previous cases involved an exemption from a generally applicable criminal law. o Why shouldn’t “compelling interest” be applied? o Applying compelling interest test in fields like free speech and disparate treatment based on race produces equality of treatment and free flow of speech. o Applied in the free exercise context, “compelling interest” allows “a private right to ignore generally applicable laws.” o Justice O’Connor’s solution: Apply Sherbert test, but state has a compelling interest. Church of the Lukumi Babalu Aye v. City of Hialeah (1993) o What would a free exercise violation look like after Smith? o Santeria involved animal sacrifice o After finding out the church planned to establish a church, school, and cultural center, the city passed an ordinance banning animal sacrifice. o Employment Div. Smith: If a law is neutral and of general applicability, it does not have to be justified by a compelling governmental interest, even if the law has the incidental effect of burdening religious practice. Neutrality Requirement o Law isn’t neutral if it restricts particular practices because of their religious motivation. o Is the ordinance neutral? “General Applicability” Requirement o Protecting Public Health and Preventing Cruelty to Animals? o If a law isn’t neutral and generally applicable, it must be justified by a compelling interest and be narrowly tailored to advance that interest. Religious Freedom Restoration Act: City of Boerne v. Flores (1997) o RFRA passed by Congress in 1993. Provided that preSmith test (the Sherbert test) applies when courts balance religious freedom claims against governmental interests in otherwise generally applicable laws. (Restores the compelling interest test). o City of Boerne’s zoning ordinances included historic preservation provision; City Council refused to grant church a building permit because of church’s status as historic landmark. o Does Congress have the authority to enact RFRA? o Congressional Enforcement Power th o 14 Amendment, Section 5: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” o This includes ability to enforce the guarantees that States shall not deprive any person of life, liberty or property without due process of law, nor deny any person equal protection of the laws. o Does enforcement power authorize Congress to pass the RFRA? th o Congress has the power to ENFORCE the 14 Amendment th o Congress does not have the power to define the substance of the 14 Amendment. o Changing the definition of a right, or what counts as a constitutional violation, is defining the substance of the 14 Amendment, not just enforcing it. o 14 Amendment Enforcement power is REMEDIAL—meant to correct violations of rights, not define the nature of the rights guarantees. o Allowing this type of change would allow Congress to alter the meaning of the Constitution, with no principle to limit their power. o “Shifting legislative majorities could change the Constitution . . .” o ONLY held RFRA to be unconstitutional as applied to the state and local governments. Did not decide whether it could apply to federal government. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418(2006) o RFRA amended in 2003 to only include the federal government. o Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, upheld it as applied to federal government. o Gonzales involved federal seizure of 30 gallons of ayahuasca tea to a New Mexico branch of a Brazilianbased church. o If free exercise substantially burdened, legislation must serve a compelling governmental interest, and constitute the least restrictive means of serving that interest. 6 o RFRA definition of “exercise of religion” expanded in 2000: “any exercise of religion, whether or not compelled by, or central to, a system of religious belief;” to be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” o The Gonzales opinion (written by Roberts) found that the government was unable to show a compelling governmental interest in barring religious usage of ayahuasca when applying strict scrutiny under RFRA. More RFRA: Burwell v. Hobby Lobby o Employers required to cover certain things in insurance plans, including forms of birth control that owners of Hobby Lobby and other businesses objected to. o Hobby Lobby and other corporations are “closely held”not publicly owned, owned by a small number of people. Conestoga Wood owned by a married couple. Hobby Lobby and Mardel owned by a married couple and their three children. o Claim that RFRA prohibits the federal government from imposing this requirement on them because it burdens their religious belief. o If free exercise substantially burdened, legislation must serve a compelling governmental interest, and constitute the least restrictive means of serving that interest. o RFRA definition of “exercise of religion” expanded in 2000: “any exercise of religion, whether or not compelled by, or central to, a system of religious belief;” to be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” o Owners believe four (out of the 16 approved) birth control methods required to be covered actually cause abortion, rather than preventing pregnancy. o Can the companies, and not the owners, sue for Free Exercise violation? o No evidence that RFRA was limited to individuals; and it was meant to provide broader protections for religious exercise than First Amendment. o Extending rights to corporations also extends the protections of people associated with them. o “Person”, as used in the RFRA, can include corporations and other artificial entities; this usage already common. o How do corporations “exercise religion?” o A law that makes the practice of religious beliefs more expensive in the context of business activities is a burden on religion. o Government concedes nonprofit corporations protected under RFRA, and Court says there’s no principled difference between forprofit and nonprofit corporations that matters here. o HHS argues it’s difficult to determine the sincere “beliefs” of a corporation. o This might be true for publicly traded companies, but not for these closely held companies. o Substantial burden? o Severe fines for failing to comply with birth control coverage mandate. o Connection between mandate and harm they object to only indirect? o Corporations not forced to directly cause death of an embryo; depends on someone else’s intervening act. o Court rejects this argument, because owners believe that complying with the mandate violates their religious beliefs. o Compelling interest? Court assumes this. o Least restrictive means? HHS could have made the “optout” provision that’s available to religious nonprofit corporations available to forprofit corporations. Hobby Lobby Dissent Only natural persons, not corporations, can exercise religion, and previous cases have never recognized free exercise rights for corporations under Free Exercise clause or RFRA. Some religious nonprofit corporations exist to further their owners’ religion, but this is not the case with forprofit corporations. Racial Discrimination Equal Protection of the Laws o 14 Amendment: No State shall . . . deny to any person within its jurisdiction the equal protection of the laws. o What does legal equality mean in practice? o United States v. Carolene Products (1938), footnote 3: Justice Stone indicated that cases involving economic regulation would receive deferential treatment by the Court, but those which infringed upon fundamental rights or involved suspect classifications such as religion and race would face heightened scrutiny. o Did not set forth an explicit test. o Court would later develop this idea into tests to determine whether equal protection guarantees violated. o Before the 14 Amendment: Dred Scott v. Sandford (1857) 1831 Capt. Peter Blow dies. Leaves Dred Scott to his daughter Elizabeth 1833 Dr. John Emerson buys Dred Scott in St. Louis 1834 – May1836 Emerson and Scott are at Ft. Armstrong, Rock Island, IL (slavery prohibited) 1836 1838 Emerson and Scott are at Ft. Snelling in Wisconsin Territory (slavery prohibited by Missouri Compromise) Emerson buys a female slave Scott marries her. 1838 First child born to Dred and Harriet—on way down the Mississippi but above 36°30’. 18381842 Emerson transferred to FL Slaves stay in St. Louis with wife and are rented out 7 1842 Emerson discharged from Army. At some point he returns to Rockford, IL. 1843 Emerson dies; slaves left to wife and daughter Suit filed in state court (Harriet Scott also files suit.) First trial—judgment against Scott New trial—judgment for Scott Mrs. Emerson married Dr. Chaffee in Springfield Mass. Scott was transferred to Chaffee’s brother—John Sandford. 1852: Appeal to Missouri Supreme Court—judgment against Scott (21) “laws of others states and territories had no ‘extra territorial’ effect in Missouri” Previous precedents are overturned. Suit is filed in federal court with Sandford as defendant. Plea of Abatement (i.e. Scott does not have standing to sue— negro is not a citizen of Missouri). Scott demurs. Judgment for Scott. 1854 Judgment for Sandford. Appealed to US Supreme Court. KansasNebraska Act is passed, repealing Missouri Compromise. Feb.1856: Case is argued in the Supreme Court May 1856: Conference. Key issue—could jurisdiction of lower court be raised since Sanford had accepted jurisdiction below. Set for reargument. Nov.1856: Buchanan elected Dec 1856: Reargued Feb 1857: Conference. Nelson to write opinion. No discussion of jurisdiction or territorial question. Nelson would write that status of slave upon returning from free state to slave state is up to the courts of that state; no extraterritorial effect of federal statutes. Two dissenting justices express their intent to discuss territorial question. Southern justices regroup and decide they must also address this issue. Taney requested to write opinion of the Court. March 4,1857: Buchanan inaugurated. March 6, 1857: Dred Scott decided. Dec. 1857: Dred Scott purchased and freed. What does the Constitution say about slavery? o Art. 1, Sec. 9: No prohibition of slave trade before 1808. o Art. 1, Sec. 2: Representation and Taxation are allocated based upon population including 3/5 of “other persons.” o Art. IV, Sec 2: “Fugitive Slave” provision– a person held to service or labor escaping to another state “shall be delivered up on Claim of the Party.” o Article IV, Section 3: “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.” o Article IV, Sec. 3 Taney’s Originalism Constitution was formed by “citizens of states” for them and for their posterity “but for no one else.” Slaves were not citizens of states when Constitution was adopted. They were not part of “We, the People.” Opinion was “fixed and universal” at time of founding that negro race was inferior and slavery appropriate. Taney’s Decision “Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled to sue in its courts.” “[Negro slaves] were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether, emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to give them.” Members of the “Negro race” can NEVER be citizens of the US. Was Dred Scott free as a result of his stays in Illinois and Wisconsin? States cannot “introduce a new member into the political community.” States can free slaves, make them citizens of a state, but NOT citizens of US. Right of naturalization was given up by states to federal government. This power is restricted to persons born in another country, not here. Can Congress prohibit slavery in territories? No. Power is not granted by Art. IV, Sec. 3 (allowing Congress to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”). Power is restricted to territory at time of Treaty with Great Britain (ending Revolutionary War) Missouri compromise deprives citizens of property without “due process of law.” 8 “And if the Constitution recognizes the right of property of the master in a slave,” the Court can’t decide differently. Missouri Compromise is “not warranted by the Constitution” and therefore void. Dred Scott was not free by having been carried into the NW Territory even if Emerson had intended to become a permanent resident. Justice McLean’s Dissent “Being born under our Constitution and laws, no naturalization is required . . . To make [Scott] a citizen.” “Our independence was a great epoch in the history of freedom; and while I admit the Government was not made especially for the colored race, yet many of them were citizens of the New England States, and exercised the rights of suffrage when the Constitution was adopted . . .” Congress has the power to establish and govern territories, and therefore to decide whether those territories could be slave or free. Justice Curtis’s Dissent—another take on originalism To determine if free blacks were citizens of the United States at the time the Constitution was adopted, look to whether they were citizens of the state where they resided at that time. In several states they were: New Hampshire, Massachusetts, New York, New Jersey, North Carolina. The Civil Rights Cases (1883) o Civil Rights Act of 1875. o Made it a federal crime for owners and operators of “public accommodations” to “deny the full enjoyment of the accommodations thereof.” o Hotels, common carriers (railroads), schools, churches, cemeteries, “places of amusement,’ such as theaters. o Challenged enforcement of law against innkeepers, theater owners, and a railroad company. Several cases consolidated. o Congress claimed authority for these bills came from 13 Amendment (abolishing slavery) and 14 Amendment (equal protection) o “State Action” Doctrine: 14 Amendment only prohibited racial discrimination supported by state action. Did not prohibit private parthes, such as business owners, from discriminating based on race. o 13 Amendment abolished slavery, but not private racial discrimination. o Private individuals and organizations can discriminate, even in “public accommodations.” 13 Amendment o Neither slavery not involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. o Congress shall have power to enforce this article by appropriate legislation. o "The 13th Amendment relates to slavery and involuntary servitude ... yet such legislative power extends only to the subject of slavery and its incidents; and the denial of equal accommodations in inns, public conveyances and places of public amusement (which is forbidden by the sections in question), imposes no badge of slavery or involuntary servitude upon the party, but at most, infringes rights which are protected from State aggression by the 14th Amendment." th 14 Amendment o No state shall . . . Deny to any person within its jurisdiction the equal protection of the laws. o Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. o “The 14th Amendment is prohibitory upon the States only, and the legislation authorized to be adopted by Congress for enforcing it is not direct legislation on the matters respecting which the States are prohibited from making or enforcing certain laws, or doing certain acts, but it is corrective legislation, such as may be necessary or proper for counteracting and redressing the effect of such laws or acts.” o Solidified the “state action” doctrine. John Marshall Harlan’s Dissent "Whereas it is essential to just government we recognize the equality of all men before the law, and hold that it is the duty of government in its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, color, or persuasion, religious or political; and it being the appropriate object of legislation to enact great fundamental principles into law; I am of opinion that such discrimination is a badge of servitude, the imposition of which congress may prevent under its power, through appropriate legislation, to enforce the thirteenth Amendment; and consequently, without reference to its enlarged power under the fourteenth Amendment, the act of March 1, 1875, is not, in my judgment, repugnant to the constitution." Plessy v. Ferguson (1896) o Several southern states required separate (but equal) facilities for blacks and whites in railway passenger cars. o Louisiana law challenged by Homer Plessy, 1/8 black. o 13 Amendment: not violated because no involuntary servitude involved. th o 14 Amendment: Object was to enforce absolute equality of the two races before the law, but could not have been intended to abolish distinctions based upon color, or enforce social equality or commingling of the two races. o Laws that mandate racial separation do not necessarily imply the “inferiority” of one race, and do violate the 14 Amendment. o Louisiana law not unreasonable based on the “established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.” o Harlan’s dissent: Racial segregation interferes with the “full enjoyment of the blessings of freedom” and would “place in a condition of legal inferiority a large body of American citizens.” o This is inconsistent with constitution’s guaranty of a republican form of government. o Article 4, Section 1: “The United States shall guarantee to every State in this Union a Republican Form of Government.” o “ . . . In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color blind, and neither knows nor tolerates classes among citizens . . .” 9 Shelley v. Kraemer (1948) o Shelley, a black man, tried to buy parcel of land in a St. Louis neighborhood. o “Restrictive covenant” in neighborhood barred owners from selling their land to members of “the Negro or Mongolian race.” o One of the neighbors sued to keep Shelley from taking possession of the land. o Is the enforcement of restrictive covenants a “state action?” o Why isn’t it a private contract? o One of the basic purposes of the Fourteenth Amendment was to prohibit discrimination by the states in enjoyment of property rights. o If state restricted rights in this way, it would clearly be unconstitutional. o State participation comes only through judicial enforcement of the contracts. th o If the covenants are enforced only through “voluntary adherence” there’s no state action and thus no 14 Amendment violathon. o Action of state courts is a “state action,” so any enforcement of the covenants by state courts violates equal protection clause of 14 Amendment. Loving v. Virginia (1967) o Virginia banned interracial marriage. o Lovings sentenced to one year in jail, suspended on the condition that they leave Virginia and not return together for 25 years. o Trial judge: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.” o State purposes for antimiscegenation laws? o “Preserving racial integrity of its citizens” o Preventing “corruption of the blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride.” o Marriage traditionally subject to state regulation without federal intervention. o Because the laws punish whites and nonwhites equally for miscegenation, they are not discriminatory. Court’s unanimous opinion Equal application of a statute containing racial classifications does not mean the statute does not treat individuals differently based on race. Law rests solely upon distinctions drawn according to race. Punishes conduct that is generally accepted only because they people involved are from different races. Racial classifications, especially in criminal statutes, subject to “the most rigid scrutiny.” Racial classification must be necessary to accomplishment of some permissible state objective, independent of the racial discrimination. No valid legislative purpose unrelated to racial discrimination. Also violates 14 Amendment guarantee of due process because freedom to marry is a fundamental freedom. Discrimination in Education Equal Protecti
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