
The meaning of the Constitution has been
interpreted by the courts throughout our
history (judicial review)
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“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof…”
(1) Establishment clause
(2) Free exercise clause
Government (national or state) may not adopt or
endorse an official religion, but individuals have
the right to practice their own beliefs.
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Establishment of religion
Free exercise of religion
Freedom of speech
Freedom of the press
Right to assembly
Right to petition the government for redress of
grievances
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There is a thin line between “establishment”
and “free exercise,” and different
people/groups draw the line in different places
Throughout our history, the courts have been
called on to interpret the Constitution and
resolve these disputes
Government may neither require nor prohibit
religious worship
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“No preference” doctrine vs.
“Wall of Separation” doctrine
Does the Establishment Clause simply require that
government show no preference among religions,
or does it require “separation of church and state”?
“I contemplate with sovereign reverence that act of
the whole American people which declared that
their legislature should ‘make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof,’ thus building a wall of separation
between Church & State.” – Thomas Jefferson, 1802
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
Barnette v. West Virginia (1943): West Virginia state
law required public school students to salute the
flag and say the Pledge of Allegiance.
Jehovah’s Witnesses objected on the grounds that
this violates the Biblical prohibition on
worshipping graven images.
U.S. Supreme Court agreed that their rights to free
exercise of religion and free speech were violated
by this requirement.
The Pledge may be recited in public schools, but
students may not be required to participate (this
was even before the words “under God” were
added).
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Engel v. Vitale (1962): New York State required
public school students to say the following
prayer in class at the beginning of each school
day:
“Almighty God, we acknowledge our dependence on
Thee, and we beg Thy blessing on us, our parents,
our teachers and our country.”
The Supreme Court held that this is a violation
of the Establishment Clause. Public school
students may not be required to participate in a
religious exercise. This case ended organized,
required prayer in public schools.


Lemon v. Kurtzman (1971): Pennsylvania
provided state support for teacher salaries,
textbooks and instructional materials in secular
subjects at Catholic parochial schools.
The Supreme Court found that this violated the
Establishment Clause and established a “threepronged” test for determining whether a
government practice is constitutional under
this Clause:
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A statute must have a primarily secular [nonreligious] purpose
It must neither advance nor inhibit religion
It must not foster “excessive government
entanglement with religion.”
The Court held that Pennsylvania providing
this type of subsidy to parochial schools failed
this test and violated the Establishment Clause.


Wisconsin v. Yoder (1972): Amish children were
excused from school attendance above the
eighth grade, which was contrary to their
family’s religious practices
The Supreme Court held that the families’ right
to free exercise of religion was violated by the
state law requiring mandatory school
attendance
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Lee v. Weisman (1992): The Supreme Court held
that a prayer delivered by a clergyman at a
public school graduation ceremony is a
violation of the Establishment Clause.
Santa Fe [Texas] Independent School District vs.
Doe (2000): The Supreme Court held that a
prayer led by a student before a public high
school football game violated the
Establishment Clause.


Adler v. Duval County [Florida] School Board
(2011): The Supreme Court declined to strike
down a lower court’s decision permitting
student-led prayer at graduation.
Lower courts have disagreed on whether
student-led prayer is constitutional and the
Supreme Court has not chosen to definitively
resolve the issue.

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Herdahl v. Pontotoc County [Mississippi] Board of
Education (1996): Bible reading over a public
school’s PA system was held to violate the
Establishment Clause.
Even though participating in the exercise
(reading the prayer over the PA) was
voluntary, listening to it was not (students
were required to be at school).
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A prayer led by an official (teacher, principal,
adult clergy member) constitutes a government
endorsement of the religious message and is
therefore a violation of the Establishment
Clause.
A prayer at a required activity is a violation of
the Establishment Clause.
A voluntary, student-led prayer at a voluntary
activity is permissible under the Free Exercise
Clause.
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Federal law stating that schools receiving
federal funds (which is virtually all public
schools) must allow religious groups to meet
on the same basis as other clubs, if the school
allows clubs at all; this has been upheld, not a
violation of the Establishment Clause
Voluntary participation, on school grounds,
before or after the school day (when attendance
is not required)
“See You at the Pole” is voluntary and before
school
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The Bible may be taught as history, literature,
or comparative religion
Public school students may be excused for part
of the school day to receive religious
instruction off-campus.
Students may engage in individual religious
practices (such as prayer, handing out Bibles or
pamphlets at school) as long as it’s not
disruptive.
“As long as there are final exams, there will be
prayer in schools.” Anonymous
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May public schools teach a Biblical theory of
creation in addition to a scientific theory of
evolution?
Teaching “intelligent design” in science classes in
Dover, PA, was struck down by the courts in 2005
State laws prohibiting the teaching of evolution
have repeatedly been struck down
Several states have passed laws allowing for the
teaching of a Biblically-based theory of creationism
as a theory of human origin, but the Supreme
Court has ruled that this can’t be required

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A New Jersey law providing school bus
transportation to parochial schools on an equal
basis with public school was upheld (the
primary purpose was transportation, not
religious instruction)
Ohio had an experimental school voucher
program, using public funds to pay part of
tuition at private schools; students who wished
to use the vouchers at religious schools could
do so. This is not a violation of the
Establishment Clause.
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Whether the Ten Commandments may be posted
in public buildings (schools, courthouses, etc.)
depends on the historical context: is it there
primarily as a religious document or as part of a
larger historical display?
Lynch v. Donnelly (1984): A creche on city property
as part of a broader “winter holiday” display did
not violate the Establishment Clause as a
government endorsement of religion. Display of
religious symbols on public property depends on
context.
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
Roy Moore, Chief Justice of Alabama, was
removed from office in 2003 for violating a
court order to remove the Ten Commandments
from the state Supreme Court building. He
refused to do so as a matter of religious
principle.
Did he violate the Establishment Clause in his
capacity as a public official, or were his
individual rights under the Free Exercise clause
violated?
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
He was acting with the authority of
government and therefore the Establishment
Clause outweighed his individual rights as a
private citizen under the Free Exercise Clause
He was subsequently re-elected Chief Justice,
and now maintains that state judges may not
issue marriage licenses to same-sex couples
even though federal courts have legalized
same-sex marriage in Alabama

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President Kennedy said he’d resign from office
if he ever felt a conflict between his oath of
office (to uphold the Constitution) and his
religious beliefs
In response to concerns from Protestant
ministers about the election of a Catholic
President
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“In God We Trust” was adopted as the national
motto in 1956, added to US money and posted in
public places
This has been held not to violate the Establishment
Clause
The US House and US Senate open their daily
meetings with prayer and have Christian clergy on
the public payroll as chaplains
Also not a violation of the Establishment Clause
The Pledge of Allegiance did not originally include
the words “Under God”

Your practice of religion may not violate the public
health and safety
Snake handling in religious services has been outlawed.
This is not a violation of the Free Exercise Clause.
 Animal sacrifice in a religious ceremony is protected by
the Free Exercise Clause.
 Narrow exception to drug laws for use by Native
Americans in religious ceremonies.
 Employment Division v. Smith (1990): An Oregon substance
abuse counselor was fired for using peyote as part of a
Native American religious ritual. He had agreed not to
use illegal drugs as a condition of employment. The firing
did not violate his free exercise rights.


Locke v. Davey (2004): Joshua Davey had a statefunded college scholarship. He was prohibited
by state law from using the scholarship to
pursue a degree in theology, on the grounds
that this violated the Establishment Clause
(state support of a specific religion). The
Supreme Court upheld the law: his free
exercise rights were not violated by the
restriction on his scholarship – it was
permissible for the state to restrict what he
studied with public funding.

Family-owned companies may be exempted
from the Affordable Care Act’s requirements
that employers provide their workers with
health insurance policies that include coverage
for certain types of contraception, if this
violates the employer’s religious beliefs.


Restrictions on freedom of speech must be
“narrowly tailored to serve a compelling
governmental interest”
“Clear and present danger”: Schenck v. U.S.
(1919). During World War I, Schenck urged
young men not to submit to the military draft;
the Supreme Court ruled that this was not
protected speech, as it posed a clear and
present danger to society.
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Obscenity
Pornography
Slander
Libel
Causing injury to someone or his property
Corruption of public morals
Incitement to criminal activity
Threats to public safety/national security
Sedition (advocating violent overthrow of the
government)
Roth v. U.S. (1957): Obscenity is not protected by
the First Amendment. The test is whether “the
average person, applying contemporary
community standards, finds that the work taken
as a whole appeals primarily to a prurient
interest.”
Memoirs v. Massachusetts (1966): Material must be
utterly without redeeming social value in order to
be found obscene (medical documentary vs.
pornographic movie)
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Miller v. California (1973): Overturns “utterly
redeeming social value” test in favor of “whether
the work, taken as a whole, lacks serious literary,
artistic, political or scientific value.” (This is easier
to prosecute)
Ashcroft v. Free Speech Coalition (2002): Digital child
pornography that is not a picture of a real child is
permissible (there is no actual victim).
Broadcast media have stricter standards than print
or cable (CBS-owned stations were initially fined
for Janet Jackson’s “wardrobe malfunction” during
the 2004 Super Bowl)
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Political speech has a particularly high degree
of protection
Flag burning is permissible because it makes a
political statement (Texas v. Johnson, 1989)
Cross burning is not permissible because it
serves no purpose but racial intimidation
(R.A.V. v. City of St. Paul, 1992)

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Public high school students have less
protection of free speech than others (the
principal may censor the school newspaper)
Schools may have a dress code prohibiting
certain types of expression
“Hate speech” and “fighting words” may be
prohibited
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Slander: harmful statement in a transitory form
(especially spoken)
Libel: Harmful statement in a fixed form
(writing, broadcast)
New York Times Company v. Sullivan (1964):
Established the legal standard for libel of a
public official; it must be committed with
actual malice and reckless disregard for the
truth (a mistake is not libelous)
Hustler Magazine v. Falwell (1988): A parody
advertisement did not libel a public figure.
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“A well regulated Militia, being necessary to
the survival of a free State, the right of the
people to keep and bear Arms, shall not be
infringed.”
Congress can ban interstate trafficking in
weapons
Background checks are constitutional
Waiting periods for the purchase of a gun are
constitutional
Certain types of weapons may be banned or
restricted from sale to the public
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What about the “militia” clause?
Is gun ownership a “collective” right or an
individual right?
Do you have to belong to the militia to own a
gun?
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U.S. v. Miller (1934): Supreme Court ruled that the
2nd Am. applies only in the context of militia
membership, it’s constitutional to ban ownership
of a gun which is unrelated to militia service, and
there is no individual right to own a gun.
District of Columbia v. Heller (2008): Supreme Court
found DC’s almost-complete ban on handguns
unconstitutional, and that the 2nd Am. grants
individuals the right to own a gun.
McDonald v. City of Chicago (2010) extended this
right, striking down state and local prohibitions on
gun ownership.

The government may not quarter troops in
your home without your consent. This has
never been a controversial issue.

Fourth Amendment
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Unreasonable search and seizure
Search warrants
Mapp v. Ohio (1961): Exclusionary rule – evidence not
obtained consistent with a warrant can’t be used against
you
Fifth Amendment
Indictment required for prosecution
Protection against self-incrimination
Miranda v. Arizona (1966): You must be informed of your
rights at the time of arrest, or you can’t be prosecuted on
the basis of self-incriminating testimony
 Protection against double jeopardy
 Due process rights guaranteed
 Compensation for taking of private property for public
use (eminent domain)
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Sixth Amendment
Speedy and public jury trial
 No anonymous testimony
 Right to counsel
 Gideon v. Wainwright (1963): Right to an attorney even if
you can’t afford it

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Seventh Amendment
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Right to jury trial in civil cases (where the punishment is
a fine rather than imprisonment)
Eighth Amendment
No excessive bail or fines
 No cruel or unusual punishment

 Capital punishment only for murder committed by a
mentally competent adult
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Gathering of evidence
Arrest
Prosecution and trial
Conviction and sentencing
Failure to comply with your due process rights
may result in your case being thrown out on a
“technicality.”
This makes it considerably harder to prosecute
crime, and much easier for guilty people to get
away with criminal activity.
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Guilty person is convicted: Justice is served.
Innocent person is set free: Justice is served.
Guilty person gets away: Justice is not served.
Innocent person wrongly imprisoned: Justice is
not served.
The process is set up this way because, if we’re
going to make a mistake, allowing a guilty
person to walk is a less serious mistake than
imprisoning an innocent person.
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Implied or unenumerated rights
The Bill of Rights is not an exhaustive list
Just because the Constitution does not specify
that you have the right to do something, does
not mean you don’t have the right to do it

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Griswold v. Connecticut (1965): Supreme Court
struck down a state law banning the sale of
contraceptives, on the grounds that a married
couple has a “right to privacy” with which the
state may not interfere.
First Amendment: Freedom of assembly
Third and Fourth Amendments: Government may
not enter your home without your consent or a
warrant
Fifth Amendment: Protection against selfincrimination
Ninth Amendment: Enumerated rights are not an
exhaustive list
These add up to an implied “right to privacy”


Roe v. Wade (1973): The right to privacy extends
to a woman’s right to have an abortion early in
pregnancy. Subsequent cases have imposed
conditions on this right.
The right to privacy has also been held to strike
down restrictions on certain types of
consensual adult sexual activity.

Restricts the powers of the federal government
to those enumerated in the Constitution;
everything else is reserved for state
governments and the people.

XIII Amendment (1865)
Abolished slavery
 Abolished involuntary servitude except as
punishment for a crime
 Not involuntary servitude:

 The military draft
 Work requirements for welfare recipients
 Community service requirements in schools

XIV Amendment (1868)

Rights of citizenship
 All persons born or naturalized in US and subject to its

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
jurisdiction are citizens (overturned Dred Scott decision
that slaves had no citizenship rights)
Natural-born citizens can be president, naturalized
can’t
A naturalized citizen may have his citizenship revoked
(ex-Nazis who lied to get into the country after WWII)
Anyone born in the US is a citizen unless their parents
are foreign diplomats
Babies born in US to illegal immigrants are US citizens
(current controversy)

Rights of citizenship
Babies born here to foreign citizens are usually dual
citizens of US and parents’ country
 Babies of US citizens born abroad are usually dual
citizens of US and country of birth (even if Obama HAD
been born in Kenya, he would be a dual US/Kenyan
citizen because his mother was a US citizen; dual citizens
have all the rights of citizenship in both countries)
 Children of US military and diplomatic personnel born
abroad are US citizens
 If unmarried father is a US citizen and mother isn’t,
paternity must be proven to establish citizenship

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
Due Process and Equal Protection of the Laws
The Due Process Clause of the 14th Amendment
extends some protections of the Bill of Rights to
actions by the states (this is known as
incorporation of the Bill of Rights)
Equal protection: The laws apply equally to
everyone
Brown v. Board of Education (1954): Legally
required segregated schools violate the Equal
Protection Clause

Prohibited discrimination in voting on the basis
of race, but many states found ways around
this, such as the literacy test (which we’ll
discuss later in the semester)

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1957: Largely ineffective attempt to protect
black voting rights in the south
1964: Outlawed discrimination on the basis of
race, sex, religion, national origin in public
accommodations and in employment except
where it’s a bona fide occupational
qualification
1968: Fair Housing Act, prohibited racial
discrimination in the sale or rental of housing


Prohibited in almost all circumstances
Desegregation vs. integration:
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Desegregation is the practice of no longer maintaining separate
schools for white and black students and assigning them on the
basis of race
Integration is actually having white and black students attend
the same schools
Busing has been used as a means of integration
Swann v. Charlotte-Mecklenburg Board of Education (1971) upheld
busing and race-conscious pupil assignment for school
integration; the racial composition of the student body at every
school in the district had to be within a certain percentage of
the composition of the district as a whole
More recently, magnet schools, return to neighborhood schools
or assignment on the basis of socioeconomic status

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
Affirmative action is permitted in narrowly
drawn circumstances – a race-specific or
gender-specific remedy to correct historical
discrimination on the basis of race or gender
Bakke vs. Regents of University of California
(1978): Affirmative action is constitutional,
quotas are not
UC Davis required 16% of its medical school
class to be black; some black applicants who
were admitted to this group had lower grades
and test scores than whites who were rejected

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
Gratz v. Bollinger (2003) and Grutter v. Bollinger
(2003: Cases from the University of Michigan
Unconstitutional: Point scale for admission to
undergraduate program, where minority students
got extra points
Constitutional: Narrowly tailored consideration of
race in law school admissions to achieve “critical
mass” of minority students
Recognized educational benefit of diverse student
body
“Strict scrutiny”: A compelling governmental
interest and a narrowly-tailored remedy, least
restrictive means for achieving a goal

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UT automatically admits all students who are in the
top 10% of their high school class – this has increased
minority enrollment without race-conscious
admissions
This makes up over 85% of their student body
In admitting the remaining students, race has been
considered for purposes of achieving diversity
Ms. Fisher did not qualify under the top 10% rule and
was denied admission. She claimed racial
discrimination. Both the District Court and Circuit
Court in Texas upheld the university’s policy.
The Supreme Court heard the case but sent it back to
the lower court for reconsideration. The Circuit Court
has upheld the university’s affirmative action policy
and the Supreme Court has not reheard the case.

Sex discrimination

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
Prohibited in most cases but allowed in more areas than
racial discrimination
Equal Rights Amendment would have completely
prohibited it, but was not ratified
Title IX of Civil Rights Act prohibits sex discrimination
and requires equal funding in college athletic programs
Single-sex public universities are only permissible if an
equivalent program exists within the state for members of
the other gender (cases involving Winthrop, VMI, The
Citadel)
Single-sex private schools are permissible
Women do not have to register for the draft and are
excluded from military combat and some other missions

Disability rights
Rehabilitation Act of 1973 requires accessibility for
disabled persons (elevators, ramps, Braille signs, etc.)
 Individuals with Disabilities Act (1975, most recently
reauthorized 2004): Children with disabilities have equal
access to education, with necessary accommodations
(note takers, interpreters)
 Americans with Disabilities Act (1990): Public services
must be accessible; prohibits job discrimination on the
basis of disabilities if they can do the job with reasonable
accommodations

 Employer can’t be required to undergo “undue hardship”
 Bona fide occupational qualification (strength, ability to
climb stairs)

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

There is no national protection against discrimination
in employment, housing, and other categories, on the
basis of sexual orientation, but laws in some states
prohibit it
Lawrence v. Texas (2003) struck down sodomy laws as
violations of privacy, but discrimination in
employment, marriage, child custody, etc., is still
permitted in many states
The Massachusetts Supreme Court legalized same-sex
marriage in 2004; this was the first jurisdiction in the
U.S. to do so.
In Obergefell v. Hodges (2015), the U.S. Supreme Court
ruled that laws prohibiting same-sex couples from
marrying violate the Equal Protection Clause of the
Fourteenth Amendment. There is now a
constitutionally protected right to marriage for samesex couples, so it’s legal throughout the U.S.