Approaching Civil Liberties
 Amendments are subject to interpretation
 There are gaps between the words of the
amendments and reality
 The language may seem explicit but its meaning can
be elusive and difficult to apply
 There are questions about what exactly the
amendments cover and to what extent
Rise of Civil Liberties cases at the
Supreme Court
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Since the late 1930, the justices have contributed to this
 United States v. Carolene Products (1938)
 Palko v. Connecticut (1937) (previously seen)
 Murdock v. Pennsylvania (1943)
Courts presumption that most laws are constitutional
Preferred freedoms doctrine signals the Courts
willingness to give closer scrutiny to civil liberties and
rights disputes
Increased use of litigation by Issue Advocates and
Interest Groups, leading to a “rights revolution”
Growth in number of cases among other nations
United States v. Carolene
Products
Advocates
Docket: 640
Citation: 304 U.S. 144
(1938)
Appellant: United States
Appellee: Carolene Products
Abstract
Oral Argument: April 6, 1938
Decision: April 25, 1938
Issues: an economic regulation dispute, not civil
liberties
Categories: “preferred freedoms”
Facts of the Case

A 1923 act of Congress banned the interstate
shipment of "filled milk" (milk with skimmed milk
and vegetable oil added). A manufacturer,
indicted for shipping filled milk, challenged the
law arguing the law was unconstitutional on
both Commerce Clause and due process
grounds.
Question

Does the Filled Milk Act of Congress of March 4,
1923, violate the Commerce Power granted to
Congress in Article 1 Section 8 and the Due
Process Clause of the Fifth Amendment?
Conclusion
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The Court upheld the act. In this case, the Court
planted the seeds for a new jurisprudence in a
footnote to Stone's opinion for the Court. Here
Stone gives a presumption of constitutionality to
economic regulation. The Court would no longer
substitute its views on economic policy for the
views of Congress. Stone went further in
footnote four by cautiously asserting that certain
types of legislation might not merit deference
toward constitutional validity. The most
controversial element in the footnote was the
suggestion that prejudice directed against
discrete and insular minorities may call for "more
searching judicial inquiry."
Murdock v. Pennsylvania
Advocates
Docket:
Citation: 319 U.S. 105 (1943)
Appellant: Murdock, a Jehovah's
Witness
Appellee: The borough of
Jeanette, Commonwealth of PA
Abstract
Oral Argument: March 10, 11, 1943
Decision: May 3, 1943
Issues: Freedom of Religion: Free Exercise
Categories: “preferred freedoms”
Facts of the Case
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The borough of Jeanette, Pennsylvania had an ordinance
requiring solicitors to purchase a license from the
borough. Murdock, a Jehovah’s Witness, asked for
contributions in exchange for books and pamphlets. The
city claimed that this meant that they were being sold
and a license was required.
Question
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Did the licensing requirement constitute a tax on
Murdock’s religious exercise.
Conclusion
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The Court in a 6-3 decision determined that the
ordinance was an unconstitutional tax on the
Jehovah’s Witnesses’ right to freely exercise their
religion.
Significance: the neutral imposition of the tax on
solicitation performed by a religious group did
not make it constitutionally acceptable. Also, the
Court distinguished between commercial activity
and religious activity that involves the selling of
religious literature.
The "Jehovah's Witnesses cases"
Of the 72 cases brought by the Jehovah's Witnesses before the
U.S. Supreme Court, these four are known as the "Jehovah's
Witnesses cases" because the decisions for all four were handed
down by the US Supreme Court on May 3, 1943:
1. Jones v. Opelika (1942), the Court upheld a statute prohibiting the
selling of literature without a license because it only covered
individuals engaged in a commercial activity rather than a religious
ritual. The freedom of press was not to be restricted only to those
who can afford to pay the licensing fee.
2. Murdock v. Commonwealth of Pennsylvania (319 US 105)
3. Martin v. City of Struthers (319 US 141), the Court invalidated a city
ordinance from Struthers, OH forbidding knocking on doors/ringing
bells to distribute "handbills, circulars or other advertisements."
4. Douglas v. City of Jeannette, PA the Court upheld the jurisdiction of
the District Court to proceed with criminal prosecutions of 21
Jehovah's Witnesses arrested in Jeannette for selling books during a
Witness "Watch Tower Campaign" in 1939.
License Requirement for Literature
Distribution / Parade & Park Permit
1. Lovell v. City of Griffin (1938), the Supreme Court ruled it
was not constitutional for a city to require written
permission from the City Manager to distribute religious
material.
2. Schneider v. New Jersey (1939), the Supreme Court
invalidated an ordinance that provided: "No person ...
shall canvass, solicit, distribute circulars, or other matter,
or call from house to house ... without first having
reported to and received a written permit from the Chief
of Police."
3. Cantwell v. Connecticut (1940), the Court ruled that the
statute requiring a license to solicit for religious purposes
was a restraint that vested the state with excessive power
in determining which groups must obtain a license.
License Requirement for Literature
Distribution / Parade & Park Permit
4. Cox v. New Hampshire (1941), the Court unanimously
upheld the convictions of Jehovah's Witnesses for engaging
in a public parade without a license. The Court ruled that,
although the government cannot regulate the contents of
speech, it can place reasonable time, place, and manner
restrictions on speech for the public safety.
5.
6.
7.
8.
Jones v. Opelika II (1942)
Jones v. Opelika II (1943)
Douglas v. City of Jeannette (1943)
Murdock v. Commonwealth of Pennsylvania (1943)
9. Follett v. Town of McCormick (1944), the Court held that
people who earn their living by selling or distributing
religious materials should not be required to pay the same
licensing fees and taxes as are expected of those who sell
or distribute non-religious materials.
10. Watchtower Society v. Village of Stratton (2002),
Civil Liberties
Amendment I
Freedom of Expressions (previously covered)
Amendment II
A well regulated Militia, being necessary to the
security of a free State, the right of the people
to keep and bear Arms, shall not be infringed.
Amendment I, III, IV, V, IX
Right to Privacy
Amendments that imply Right to Privacy:
I - 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 the right of the
people peaceably to assemble, and to petition the Government
for a redress of grievances.
III - No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a
manner to be prescribed by law.
IV - The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.
Amendments that imply Right to Privacy:
V - No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence
to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public
use, without just compensation.
IX - The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people.
Religion: Definition, Free Exercise,
Establishment
 American Religiousness
 9 of 10 believe in God
 over 1,500 religious bodies
 Globally, Americans rank second when rating the
importance of God in their lives (behind Malta)
 68% belong to over 350,000 churches, temples,
mosques, and synagogues
 Yet historically Americans have proven to be religiously
intolerant
 colonial laws against “minority” religions, i.e. anticatholic laws
Religion: Definition, Free Exercise,
Establishment
 Yet historically Americans have proven to be religiously
intolerant (continued)
11 of 13 states had some restrictive laws (only
Maryland and Rhode Island provided full religious
freedom)
 6 states had established religions
 some states imposed religious oaths on public
officials
 Anti-federalists objected the lack of any
guarantees of religious liberty
Religion: Definition, Free Exercise,
Establishment
 Breaks with past trends
 Constitutional Convention delegates opposed Ben
Franklin’s proposal for prayer before debates
 Article VI provides for oaths by government
officials to defend the constitution but no religious
tests requirements for public office
Defining Religion – Three Supreme Court cases
1. Reynolds v. United States (1879)
2. United States v. Ballard (1944)
3. United States v. Seeger (1965)
Reynolds v. United States
Advocates
Docket:
Citation: 98 U.S. 145
(1879)
Appellant: George Reynolds
Appellee: United States
Abstract
Oral Argument: November 14-15, 1878
Decision: May 5, 1879
Issues:
Categories:
Facts of the Case
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George Reynolds was a member of the Church
of Jesus Christ of Latter-day Saints, charged
with bigamy after marrying Amelia Jane
Schofield while still married to Mary Ann
Tuddenham in the Utah Territory.
Question
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Does the?
Conclusion
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The Supreme Court upheld the conviction finding Reynolds
guilty.
The constitution does not define religion, so to reach a
ruling Court investigated the history of religious freedom in
the United States. The court quoted a letter from Thomas
Jefferson in which he stated that there was a distinction
between religious belief and action that flowed from
religious belief. Belief "lies solely between man and his
God," therefore "the legislative powers of the government
reach actions only, and not opinions."
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The court argued that if polygamy was allowed, how long
before someone argued that human sacrifice was a
necessary part of their religion, and "to permit this would
be to make the professed doctrines of religious belief
superior to the law of the land, and in effect to permit
every citizen to become a law unto himself."
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The Court believed the true spirit of the First Amendment
was that Congress could not legislate against opinion but
could legislate against action.
Advocates
United States v. Ballard
Docket:
Citation: U.S.
(1944)
Appellant: United States
Appellee: Guy Ballard
Abstract
Oral Argument:
Decision:
Issues:
Categories:
Facts of the Case
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Guy Ballard was convicted of using and conspiring to use
mails to defraud. He was a follower of the 'I Am'
movement and believed that the words of St. Germain,
the divine messenger, were transmitted through him.
Ballard also claimed to possess the power to heal people
and claimed to have had success in doing so in the past.
He solicited contributions via mail in exchange for
offering his healing abilities. The government asserted
that he 'well knew' that these claims were false and he
used them to defraud others of their money. In the initial
trial, the jury was told not to consider Ballard's religious
beliefs, instead they were merely to determine whether
the defendant believed that he possessed the ability to
heal others.
Question
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Does the Fifth Amendment?
Conclusion
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The Court ruled that it was proper for the jury to
base its decision on the sincerity of Ballard's
beliefs.
Justice Douglas, authoring the majority opinion,
wrote: “The content of the teachings of the 'I
Am' movement were immaterial. These beliefs
could not be an issue in any case because the
content of religious convictions could not be
judged as either correct or incorrect. Because of
the First Amendment, heresy is an unknown
offense in the United States. All that mattered
was whether Ballard believed in good faith that
he possessed the powers he claimed to have. If
this was so, then he must be acquitted.”
United States v. Seeger Advocates
Docket:
Citation: 380 U.S. 163
(1965)
Appellant: United States
Appellee: Daniel A. Seeger
Abstract
Oral Argument:
Decision:
Issues:
Categories:
Facts of the Case
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This case involved the application of the Universal
Military Training and Service Act which exempted people
from military service if their religious training or belief
makes them opposed to such service.
It defined appropriate training or belief as an individual's
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."
One person involved in the suit believed in a “supreme
reality” while another believed in a “universal reality.”
Neither of these were included in the class of beliefs
covered by the Act.
They claimed that the law unfairly did not exempt nonreligious conscientious objectors and that it
discriminated between different forms of religious
beliefs.
Question
Conclusion
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In a unanimous opinion, the Court allowed
those people with general theistic belief
systems to be declared conscientious
objectors.
Advocates
City of Boerne v. Flores
Docket: 95-2074
Citation: 521 U.S. 507
(1997)
Appellant: p
Appellee: o
Abstract
Walter E. Dellinger, III (Argued the
cause for the Federal respondent)
Marci A. Hamilton (Argued the cause for
the petitioner)
Douglas Laycock (Argued the cause for
the respondent Flores)
Jeffrey S. Sutton (Argued the cause on
behalf of Ohio et al., as amici curiae,
support the petitioner)
Oral Argument: Wednesday, February 19, 1997
Decision: Wednesday, June 25, 1997
Issues: First Amendment, Free Exercise of Religion
Categories:
Facts of the Case
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The Archbishop of San Antonio sued local zoning
authorities for violating his rights under the 1993
Religious Freedom Restoration Act (RFRA), by denying
him a permit to expand his church in Boerne, Texas.
Boerne's zoning authorities argued that the Archbishop's
church was located in a historic preservation district
governed by an ordinance forbidding new construction,
and that the RFRA was unconstitutional insofar as it
sought to override this local preservation ordinance. On
appeal from the Fifth Circuit's reversal of a District
Court's finding against Archbishop Flores, the Court
granted Boerne's request for certiorari.
Question
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Did Congress exceed its Fourteenth Amendment
enforcement powers by enacting the RFRA which, in
part, subjected local ordinances to federal regulation?
Conclusion
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Yes. Under the RFRA, the government is prohibited from
"substantially burden[ing]" religion's free exercise unless it
must do so to further a compelling government interest,
and, even then, it may only impose the least restrictive
burden.
The Court held that while Congress may enact such
legislation as the RFRA, in an attempt to prevent the abuse
of religious freedoms, it may not determine the manner in
which states enforce the substance of its legislative
restrictions.
This, the Court added, is precisely what the RFRA does by
overly restricting the states' freedom to enforce its spirit in
a manner which they deem most appropriate.
With respect to this case, specifically, there was no
evidence to suggest that Boerne's historic preservation
ordinance favored one religion over another, or that it was
based on animus or hostility for free religious exercise.
The “establishment clause”
a.prohibits the establishment of a state
religion.
b.provides a wall of separation between
church and state.
c. was furthered by the Lemon v.
Kurtzman decision.
d. all of the above.
Free Exercise Clause
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Does a literal interpretation suggest a
group may practice any religion it chooses?
Is such an interpretation reasonable?
What if the religious member engages in
dangerous practices, i.e taking
hallucinogenic drugs?
Should government prohibit religious
activities that are dangerous or offensive?
The Belief – Action Distinction
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Based on the Thomas Jefferson letter in 1803 to
the Danbury Baptist Association
Jefferson believed that
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free exercise is not absolute and
government may regulate religious actions
The Supreme Court supported this position in
1940 in Cantwell v. Connecticut, upholding the
constitutionality of laws affecting religious
practices as long as the legislation serves the
nonreligious goal of safeguarding the peace,
order, and comfort of the community and is not
directed at any particular religion.
The Belief – Action Distinction
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The Court sustained laws prohibiting
religiously sanctioned polygamy (the
practice of taking multiple wives) in
Reynolds v. United States in 1879.
The Court sustained laws prohibiting use
of peyote during religious services in
Employment Division, Department of
Human Resources of Oregon v. Smith in
1990.
The Belief – Action Distinction
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By contrast, the Court invalidated a law
that forced a Seventh Day Adventist to
work on Saturday – her faith’s Sabbath –
in order to receive unemployment benefits
in Sherbert v. Verner in 1963.
The Court also upheld the right of the
Amish to withdraw their children from
public school before the age of sixteen in
Wisconsin v. Yoder in 1972.
Congress and Religious Freedom
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Congress does not always agree with the
way the Court interprets the Free Exercise
Clause.
Recently, Congress has shown greater
support for freedom of religious
expression than the Supreme Court.
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Goldman v. Weinberger in 1986
City of Boerne v. Flores in 1997
Congress and Religious Freedom
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After Employment Division, Department of
Human Resources of Oregon v. Smith in 1990,
where the Court outlawed the use of peyote in
religious ceremonies, Congress expressed
renewed concern over the Court’s reasoning in
free exercise cases.
In 1993, Senators Ted Kennedy and Orrin Hatch
led passage of the Religious Freedom and
Restoration Act (RFRA).
The Court ruled RFRA unconstitutional in City of
Boerne v. Flores in 1997
The Supreme Court has limited
recitation of prayers in public
schools primarily on the basis of.
a. the establishment clause.
b. the free exercise clause.
c. freedom of speech.
d. the right to privacy.
The Supreme Court maintains that the
establishment clause prevents all of
the following evils EXCEPT.
a. sponsorship
b. financial support
c. active involvement of the
government in religious activity
d. accommodating to religious
needs
The relationship between the state
and religion is addressed in
a. the clear and present danger clause.
b. the establishment clause.
c. the free exercise clause.
d. both b and c.
The “free exercise” clause precludes
all of the following EXCEPT.
a. a requirement of a religious oath as a
condition of public service.
b. denying persons certain rights because of
their beliefs or lack of them.
c. discrimination based on religious belief
systems rather than adherence to a formal
creed.
d. a requirement of a religious oath for public
school teachers.
The free exercise clause has been
interpreted by American courts to
mean that
a. no conduct motivated by religion is subject
to state authority.
b. people must keep their opinions about
religion to themselves.
c. Amish may take their children out of public
schools after the eighth grade.
d. although religious beliefs cannot be
regulated, religious conduct may be.