By Jason Jackson,2014-11-01 01:49
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RBT analysis1.Does the law serve a legitimate interest or purpose ...Analysis: Brennan said:Wondered whether obscenity is utterance within the area...

A. The First Amendment (1791)

     “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

    thereof; or abridging the freedom of speech, or of the press; or of the right of the people to peaceably to assemble, and to petition the Government for a redress of grievances.”

    ; The first Amendment was drafted by James Madison

    ; Why does it only refer to Congress making a law, instead of speaking about all government

    action as is commonly understood today? This is most likely because the federal government

    didn‟t have nearly as much power as much as it does now; so that the federal government would

    not be encroaching on free speech.

    ; Why did Madison and his colleagues put speech and religion into the same amendment? The

    two may not be that dissimilar because most of the practice of religion is through speech.

    ; The free exercise clause may be redundant because there is no free exercise case retainable under

    the speech clause (what the fuck does this mean?)

    ; What is an establishment of religion? The paradigm case would be the Anglican church in


    ; What about “respecting an establishment of religion?” Scalia, Thomas, Rehn, maybe Kennedy

    think that speaks to established religions as seen in England, Saudi Arabia, or any place with an

    established church. If that is the correct interpretation, however, why are the words “respecting

    an” in the clause? That is the problem with this position. Example: Most justices would say that

    school vouchers given by state or federal government for use in religious/nonreligious schools do

    not respect an establishment of religion, because this is a law of general application and there is

    nothing in the law saying they must be used for religious purposes, even though these vouchers

    tend to aid religion greatly.

    ; What about prohibiting free exercise thereof? When you go to jail for committing a crime,

    inmates are allowed to practice their religion there because state and federal governments allow

    them to do so through enacted legislation; this is not necessarily because the first amendment

    protects it. This may be because of a preference for religion in the US.

    ; What about abridging the freedom of speech? Why is there a “the” before “freedom of speech.”

    Well, you get no special protection for calling people names on the street, because only speech

    that has been historically favored will be protected. We are basically talking about political

    freedom of speech. Therefore there are a lot of cases regarding what constitutes speech in the first

    amendment, and there are categorical exclusions for things that are speech that get no freedom of

    speech protection. Example: a city of LA ordinance that says you can’t talk about Jane

    Austen in Pershing square regulates the content of speech and will draw SS.

    ; What about “or of the press?” You must also ask whether there is a difference between a

    freedom of speech and freedom of press? You could say that perhaps the freedom of press protects

    the investigative work that the press does, for example.

Religion Clauses

    1. Govt. Action/Inaction

    a. Free exercise

    1. DAR1 (Lukumi)==>triggers SS

    2. DAR2 (Locke)rational basis

    3. Not-DAR (Smith)

    b. Establishment clause

    I. Argument Structure

    Religion Clauses

    1. Free Exercise Clause Arg‟t Stucture - Applies only to restrictions on free exercise of religion.

    Before Smith

    Is the law directed at religion in general? DAR draws SS

     If yes, use SS.

     what if it is DAR in the space between FEC and EC like in Locke.

SS analysis

    1. Is there a compelling govt. interest?

    ; If no, law is struck down.

    ; If yes, go to next step [(b)].

    2. Is the law a necessary and narrowly tailored means of accomplishing that goal?

    ; If no, the law is struck down.

    ; If yes, the law is upheld under SS (rarely occurs).

    3. If no, go to next step [2].

    ; Is the law facially discriminatory against certain religions?

    If yes, use SS.

    If no, go to next step [3].

    ; Is there evidence of a discriminatory purpose?

    If yes, use SS.

    4. If not, the law is a law of general application. Go to next step [4].

    ; Is there a great burden on the practice of religion? (How great does the burden have to be? Not

    sure, but if the practice being restricted is central to the religion, it is likely to be seen as a great

    burden. See Reynolds, Braunfeld, and Sherbert for guidance.)

    ; If yes, use SS. If the law does not pass SS as a law of general application, it is not struck down.

    However, the govt. must carve out an exception to the law for religion.

    ; If not, use RBT.locke

    RBT analysis

    1.Does the law serve a legitimate interest or purpose?

    ; If yes, go to next step [(b)].

    ; If no, law is struck down.

    2. Is the law rationally related to the interest or purpose?

    ; If yes, law is upheld.

    ; If no, law is struck down.

    After Smith

    1. Is the law directed at religion in general?

    If yes, use SS.

    If no, go to next step [2].

    2. Is the law facially discriminatory against certain religions?

    If yes, use SS.

    If no, go to next step [3].

    3. Is there evidence of a discriminatory purpose?

    If yes, use SS.

    If not, the law is a law of general application, and use RBT.

I. The Freedom of Religion

    a. Ask: What is religion? What is the free exercise of religion? What is the establishment of religion

    of which we should be concerned with?

    b. Definition of Religion

    c. US v. Seeger (1965)- conscientious objector

    Facts: Congress passed a Universal Military Training Act; there was a draft act during the Vietnam war

    that provided for a conscientious objector exemption. It exempted from service those who were

    conscientiously opposed to “wary in any form” by reason of their “religious training and belief.” The

    latter phrase was defined by the law as a belief in a relation to a Supreme Being involving duties

    superior to those arising from any human relation, but not including essentially political, sociological,

    or philosophical views or a merely personal moral code.” This was a law of general application based

    on age unless you had certain physical/mental illness. Seeger said that he did not believe in a Supreme

    being but believed in an ethical creed.

    ; Justice Clark interpreted the term “religion” very broadly and found that Seeger was

    entitled to the exemption.

    ; The test is whether a given belief that is sincere and meaningful occupies a place in the

    life parallel to that of a supreme being.

    ; You could make two arguments for Seeger 1) under the statute, Seeger is exempt 2) it

    violates the free exercise clause because your practice of religion is infringed if you are

    forced to be involved in a war you don‟t believ in.

    ; Does this favor religious conscientious objectors over non-religious objectors and thus is

    tantamount to establishing religion?

    ; Problems: This may be a UNC law because it is not one of general app, then doesn‟t it

    favor religion. This may create a problem under the establishment clause.

    ; Next layer:When thinking about violations of the establishment clause remember the

    next layer: “religion is in the everyday fabric of life in this country.” There is a baseline

    of religious activity in this country that is marbled into life. The religion clauses were put

    in there to favor religion. Remember that even if federal and state law isn‟t required to, it

    can still favor religion. Even though we think that the religion clauses impose a

    neutrality toward religion, there is actually a vector towards accommodating religion in

    our every day lives. Religion is a favorably viewed activity, that state/fed governments

    may accommodate although they are not required to do so.

    ; Argument Structure: This is a statutory interpretation case. If someone makes you fight

    a war that is against your religious beliefs, doesn‟t that place a burden on the free

    exercise of religion that should draw strict scrutiny. Even today, however, a draft act

    without this exemption would most likely not violate the free exercise clause because the

    government would most likely have a compelling interest. The UMTA is a law of general

    app, at one time if the burden on religion was great enough it would have drawn SS, now

    it would not after Employmen Div.

    ; Establishment Clause Problems: If I am not religious, but I just do not believe in war,

    and I am not exempt, wouldn‟t that be a EC problem because you are favoring religion

    over nonreligion (one interp of the EC). There is no case saying that accommodating

    religion actually violates the establishment clause; there are certain things governments

    may do to accommodate religion that doesn‟t violate the establishment clause, but if they

    don‟t do it it won‟t violate freedom of exercise.

    d. Welsh v. US (1970)

    Facts: This case came under the UMTA as well, but Welsh struck the word “religious” on his application.

    The court still interpreted the case broadly as Welsh‟s claim was not barred by the exclusion in 6(j) for

    persons with “essentially political, sociological, or philosophical views or a merely personal code.”

    ; Justice Black thought that the exclusion should not be read to “exclude those who hold strong

    beliefs about our domestic and foreign affairs or even if the objection is founded on public


    ; Harlan concurred in the result but thought that 6(j) was only for those who objected to the war

    because of theistic beliefs, but that so read, was UNC. Favoring religion over NR and thus against


    ; White dissented; this exemption is only for those who do not believe in war only for religious


    ; Hypo: What if I am utilitarian and I don‟t there should be a war? Even though this is a moral code,

    it may fit under the religious exemption in Welsh.

    ; The court in Welsh said, if you believe something strongly enough, whether it is religion, the govt

    will call it religion, even if the beliefs are secular. Shap thinks this is phony, b/c the govt is

    saying a secular group will be treated as religious. He thinks this may have been done to avoid EC <