The Bill of Rights

Added to Constitution Dec. 15, 1791

James Madison is the author of the Bill of Rights

A Bill of Rights was promised to the anti-federalist to get the votes needed for ratification of the Constitution.

Madison writes 12 of them in 1789 and presents them to Congress---10 are ratified by the states in 1791.

Madison patterns his Bill of Rights after George Mason’s Virginia Declaration of Rights

To whom are rights, freedoms, and liberties given???????

The Constitution says to all persons, not just citizens---therefore people in this country who are not citizens are also guaranteed most rights, freedoms, and liberties.

1st. Amendment---Freedom of Expression

Freedoms of religion, speech, press, the right to peacefully assemble, and to petition the government.

A free country cannot exist without the right of free expression.

Two parts to your freedom of Religion

Establishment Clause: Congress shall make no law

respecting an establishment of religion,

Free Exercise Clause: or prohibiting the Free exercise

thereof;

The Virginia Statute for Religious Freedom 1786

Among the sources for our concept of Religious Freedom was the Virginia Stature for Religious Freedom, which Thomas Jefferson first proposed in 1779 and the General Assembly of Virginia adopted in 1786.

The Establishment ClauseJefferson said in a letter that “there

should be a wall of separation between church and state”.

The question left to the Supreme Court to decide is how high should that wall be?

The Supreme Court on numerous occasions has said that government and religion are not enemies or strangers to one another.

Relationships between Government and Religion that

have not been found in violation of the Establishment Clause

1. Churches free from taxation2. Chaplains in armed services3. Oath of office in name of God4. Congress begins sessions with

prayer5. “In God we trust” on money6. Pledge includes “one nation under

God”

Can a state law require public tax supported busing of students who attend parochial schools??

Yes, Everson v. Board of Ed 1947

Court ruled safety of children more important than any violation of the Establishment Clause

Can a local school board require religious education in public

school classrooms????No, McCullum v. Board of Ed 1948

Supreme Court said that this was in violation of the Establishment Clause. It was government promoting religion.

Can a local school board allow released time for religious

education off school grounds????Yes, Zorach v. Clauson 1952

The Supreme Court ruled this way because it was off school grounds, not required by the school, not financed by the school, and the students had parental permission.

Ruling differently would have infringed upon parents rights to raise their children.

Can a State require by law that all businesses be closed on

Sunday out of respect for the Christian Sabbath??????????????No, McGowan v. Maryland 1961These laws were common in most

states. They were nicknamed “Blue Laws”.

Supreme Court said that the state was promoting religion and specifically promoting the Christian religion.

Can a state require that the school day begin with a written

prayer even though students did not have to participate and the

prayer was non-denominational ?????????????

No, Engel v. Vitale 1962

The Court ruled that the government was in violation of the Establishment Clause because it was a prayer written by the state.

Can a state require that the school day begin with reading from the Bible and recitation of

the Lord’s Prayer?No, Abington School District v.

Schempp 1963State was in violation of the

Establishment Clause because it was promoting the Christian Religion.

However, students may study the Bible as an historical or literary work.

Can a state prohibit the teaching of evolution in school on the

grounds that it was a religious doctrine

No, Epperson v. Arkansas 1968

The state of Arkansas argued that evolution was a religious doctrine “Secular Humanism”.

Court ruled that evolution was not religious doctrine and the state of Arkansas was actually promoting religious doctrine by outlawing its teaching.

Can a state prohibit the teaching of Secular Humanism on the grounds that it is a religious

doctrine?Secular Humanism can be summarized as:1.Humans have inherent value and can solve

human problems 2. All knowledge is gained through rational process

(organized religion is denied) 3. Science and rational thought are enhanced

through democracy and free speech

The teaching of Secular Humanism can not be prohibited on the basis that is teaching a religion. The Court found that it was not a religion---in fact the Court found that to prohibit its teaching would

be promoting religion.

Can a state require that the 10 Commandments be posted in all

public school classrooms???No, Stone v. Graham 1980Court ruled this was promoting

religion and therefore in violation of the Establishment Clause.

Just 2 years ago a similar case came before the Federal Courts when the Alabama Supreme Court building had a statue of the 10 Commandments in the lobby. The Federal Courts forced the Alabama Supreme Court Judge that put the statue there to remove it.

Can a city have a nativity scene included in a holiday display, on government property, if it part of

a display that also includes Santa and other non religious

items???Yes, Lynch v Donnelly 1984Court considered this not in violation

of Establishment Clause because it celebrated a holiday season and not specifically a religious holiday.

Can a local government have a holiday display, on government

property, that celebrates the birth of Jesus by displaying a

banner that says “Glory to God in the Highest”?

No, County of Allegheny v. ACLU 1989

Supreme Court found this a clear violation of the Establishment Clause.

Can a state pay a chaplain with public funds to say a prayer to

begin a session of the State Legislature?

Yes, Marsh v. Chambers 1983The Supreme Court said: “unlike

school children, legislators were not susceptible to religious indoctrination or peer pressure.”

Can a state require a one minute period of silence for meditation or voluntary prayer to start a

school day?No, Wallace v. Jaffree 1985The Supreme Court took exception to

the inclusion of the word “prayer”, even though it was voluntary.

Can a school system provide for an offering of a prayer as part of

the graduation ceremony?No, Lee v. Weisman 1992The Supreme Court said that this was

in violation of the Establishment Clause because the prayer was planned for by the School System.

Can a state require the teaching of “Creationism” as an

alternate point of view from Evolution???

No, Edwards v. Aguillard 1987 The Supreme Court said that any

required teaching of the Biblical story of creation in public schools was in violation of the Establishment Clause.

Can a school system have as their stated policy that all

athletic events begin with a prayer????

No, Santa Fe School District v. Doe 2000

Supreme Court said that since it was School Board Policy it was in violation of the Establishment Clause.

Free Speech vs. The Establishment Clause

1. Can a student at graduation on their own, without school system direction, offer a prayer? Yes

2. Can a student wear a shirt that has a pro Christian message on it to school? Yes

3. Can students pray before school or during lunch? Yes

4. Can a student bring the Bible or other Holy Books to school? Yes

Using the argument of separation of church and state,

can a state deny a student a scholarship that he or she has earned based on grades and

test scores, because they plan to use that scholarship to go to a religious school and become a

priest/minister?In a very controversial decision in 2005, the Supreme Court upheld the states action of denying the scholarship to the student.

Equal Access Act of 1984Any public high school that receives

federal funds (nearly all do) must allow student religious groups to meet in school on the same terms as they allow other student organizations.

Examples: 1. Fellowship of Christian Athletes. 2. Rally around the pole. 3. A church group who would like to

use the school facilities after the school day for worship.

How much aid can the federal, state, and local governments

give to parochial schools?????? Supreme Court attempts to settle the

question in Lemon v. Kurtzman 1971 by setting up what becomes known as the “Lemon Test”.

For the government aid to the parochial school to not violate the Establishment Clause the answer to the following three questions must be YES.

Lemon test questions1. Is the purpose of the aid secular (non

religious)?2. Does the primary effect of the aid neither

advance nor inhibit religion?3. Does the aid avoid excessive entanglements

of government with religion?Examples of Lemon Test in use:1. State can not pay salary of parochial

teachers.2. State can pay parochial schools money to

administer state sponsored test3. State can provide funds to provide an

interpreter for a deaf student at a parochial school.

Free Exercise Clause CasesCongress shall make no law

prohibiting the free exercise of religion

Can the government outlaw certain religious practices?

Compelling interest test says that government must have a very strong reason to ban that practice.

Reynolds v. U.S. 1879Government may ban polygamy

even though it was considered a religious practice by some in the Mormon church.

Can a state require school children receive vaccinations even though it is against the religious teaching of a certain

group?Yes, Jacobson v. Mass. 1905

The Supreme Court said that The law protected the health of children and the community.

Can a state forbid the handling of poisonous snakes in a

religious ceremony?Yes , Bunn v. North Carolina 1949

Law protects those in congregation that might not believe in handling snakes---especially children.

Can a state require that a person get a license before they ask for donations for a religious cause?

No, Cantwell v. Connecticut 1940 and Watchtower Bible and Tract Society v. Village of Stratton 2002

A violation of the freedom to worship and free speech rights.

Oregon v. Smith 1990Can a state make peyote use illegal

even when the peyote was used within the context of a Native American religious ceremony?

YesHowever, if a state wants to they can

make such practices legal (Arizona)

Can the state require that children go to school up to a certain age even if a religious group (Amish) want to take

them out of school after the 8th grade?

No, Wisconsin v. Yoder 1972

Do the Amish have to pay Social Security taxes even though they don’t use the system? Yes

Can the federal government draft people into the military even if they have religious

objections?Welsh v. U.S. 1970---only persons

whose consciences would give them no rest if they allowed themselves to become part of an instrument of war are exempt from the draft.

Review You will not need to know the names of cases, but

you will need to know what the court decided ---for example:

Can a school system have as their stated policy that athletic events begin with a prayer? Answer ---No

Cases you will be responsible for: Abington v. Shempp, Epperson v. Arkansas, Stone v. Graham, Lynch v. Donnelly, County of Allegheny v. ACLU, Marsh v. Chambers, Wallace v. Jaffree, Lee v. Weisman, Edwards v. Aquillard, Santa Fe School District v. Doe, Reynolds v. U.S., Jacobson v. Massachusetts, Bunn v. North Carolina, Cantwell v. Connecticut, Wisconsin v. Yoder, Welsh v. U.S.

Also be able to define Secular Humanism---is it considered a religion by the courts?—be able to define polygamy, and identify Equal Access Act.

Review ContinuedBe able to give examples of the

Lemon Test.Be able to give examples of cases

and decisions concerning Free Speech vs. The Establishment Clause.

Be able to discuss and explain if the Supreme Court, in your opinion, has taken the separating of government and religion too far or not far enough. Be able to give examples of decisions that you disagree with.