ESSENTIAL QUESTIONS: WHAT ARE CIVIL LIBERTIES? HOW HAVE OUR CIVIL LIBERTIES BEEN PROTECTED BY THE CONSTITUTION? WHEN IS IT APPROPRIATE TO LIMIT CIVIL LIBERTIES? Civil Liberties and the Incorporation Doctrine

Civil Liberties Civil Liberties – specific individual rights that are constitutionally protected against interference by the government Focus on actions of an individual Protected in the Bill of Rights Creates a “wall” between the people and the government

Civil Liberties in the Bill of Rights First Amendment – Religion, Assembly, Press, Petition, Speech Second Amendment – Right to bear arms Fourth, Fifth, Sixth, Eighth Amendments – Rights of the accused Ninth Amendment – protections of privacy and personal freedoms (not specifically listed in the previous amendments)

The Questions… Is it ever okay to limit an individual’s civil liberties? How do we determine what is a “constitutional” limit to someone's civil liberties?

Incorporation Doctrine: Reading Questions 1. When the Bill of Rights was written, which level of government did it intend to limit? 2. Why was the Bill of Rights added to the Constitution? 3. What precedent was established by Barron v. Baltimore? 4. What happened to guarantee more civil liberty protections from the actions of state governments? 5. What does the “privileges and immunities clause” mean? (in your own words) 6. What has to happen for a civil liberty to be applied to actions of state governments? 7. What was the court’s decision in Gitlow v. NY? 8. What does it mean if a right is “incorporated”? 9. Look at the list of incorporated rights. Which right was most recently incorporated? 10. Which right that is guaranteed in the Bill of Rights could be legally taken away by the NC government?

ESSENTIAL QUESTION: HOW HAVE COURTS DEFINED INDIVIDUAL RIGHTS OVER TIME? HOW HAS THE ESTABLISHMENT CLAUSE LIMITED THE ACTIONS OF THE GOVERNMENT? HOW IS THE RIGHT TO FREEDOM OF RELIGION LIMITED? Freedom of Religion

The First Amendment “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.”

Religious Freedom Religious freedom is protected by two clauses in the First Amendment: the establishment clause and the free exercise clause.  “Congress shall make no law respecting an establishment of religion” :The establishment clause says that the government cannot establish an official religion, nor can they pass policies that favor one religion over another.  This has been interpreted by the courts to mean that the government cannot force or ban people from attending a religious service, that the government cannot create a church or pass laws that benefit one religious group over others.  “…or prohibiting the free exercise thereof”: The free exercise clause protects an individual’s right to practice their religion in a way that they choose.

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 The First Amendment was meant to protect religious activity from interference from the government – courts have extended that interpretation to mean that no government body can appear to support a religious group.

Courts’ Interpretation Many people often question things that seem to violate either of these clauses. For example, our money says “In God We Trust”, the Pledge of Allegiance references “God”, and most state legislatures as well as Congress start their sessions with a prayer. The courts though, have not found that any of these actions violate the First Amendment. When cases reach the Supreme Court involving the Establishment Clause the court uses what is called the endorsement test.  Basically, they have to decide if the community believes that the government is endorsing one religion over another, the law can be overturned.  Some laws that benefit one religion or members of a religious group are sometimes allowed, but only if the law has a secular, or non- religious, purpose.

Limits to Free Exercise Concerning the Free Exercise Clause, religious beliefs are protected; however, not all religious actions are protected.  The difficult part has come in when a law has unintended effects and limits a person to practice their religion. For example, there are some Native American religions that require the use of certain types of drugs. In this case, the Supreme Court ruled that the law was Constitutional, even though it limited the groups’ freedom of religion.

HOW HAVE THE COURTS DEFINED OUR CIVIL LIBERTIES CONCERNING RELIGION OVER TIME? Supreme Court Decisions

Constitutional Question Can state funds pay for teachers or textbooks at religious schools? Lemon v. Kurtzman – 1971 The Supreme Court said that tax money cannot be used to finance religious organizations, including schools. The case established the Lemon Test, which is now used to determine if a government action violates the establishment clause. The test has 3 parts. If an action “fails” any of the three parts, the action is unconstitutional.

The Lemon Test Does the government action in question: 1. Have a religious purpose? (If yes – fails; if no – passes) 2. Mainly serve to either advance or inhibit religion? (If yes – fails; if no – passes) 3. Call for a lot of government “entanglement” with religion? (If yes – fails; if no – passes)  If a law fails the test – the law is unconstitutional. If it passes the test – then the practice can continue.

Constitutional Question Can tax $ be used to support schools run by religious groups? Zelman v. Simmons – Harris Decision The case in question was based on state law that allowed parents to remove their students from public school, and send them to private school using vouchers ($ from the state). The court said that since the parents could choose to send their kids to any private school, which included non-religious schools, that it was neutral regarding religion, so the voucher program was constitutional.

Constitutional Question Can public schools sponsor a prayer during the school day? Engel v. Vitale – Decision: The court said organized prayer in school is a violation of the Establishment Clause Justice Black said that the 1 st Amendment was intended to guarantee that the power of government would never be used “to control, support, or influence the kinds of prayers the American people say.”

Constitutional Question Can a member of the clergy lead a prayer at a graduation ceremony? Lee v. Weisman – decision Prayer at graduation violates the Establishment Clause Students can say prayers alone or in groups while at school, but public schools must neither promote nor discourage religion

Constitutional Question Can a person refuse to be drafted into the military, during wartime, if their religious beliefs do not support war? United States v. Seegar – Decision Individuals can refuse to be drafted if their religious (or personal moral) beliefs forbid war. These people are known as conscientious objectors.

Constitutional Question Can someone refuse a mandatory vaccination for their children due to religious beliefs? Prince v. Massachusetts decision The Supreme Court said someone cannot refuse to be vaccinated due to religious beliefs because they will be a danger to public safety and health.

Constitutional Question Do students have to salute the flag and recite the pledge of allegiance if it goes against their religious beliefs? West Virginia Board of Education v. Barnett – 1943 Students do not have to salute the flag or say the pledge if it violates their beliefs. Schools can still do these activities, but a student cannot be punished for refusing to participate.

Constitutional Question Can public school staff read religious texts (to their students)? School District of Abington Township v. Schempp – 1963 Nope – violates Establishment Clause

Constitutional Question Can schools post the 10 Commandments? Stone v. Graham, 1980 Nope, violates the Establishment Clause.

Constitutional Question Can students drop out of school at an earlier age if their religious beliefs require them to do so? Wisconsin v. Yoder, 1972 Yep, in this situation the students were needed at home to work (they were Amish) and their school studies would not benefit them any longer.