You'd think there would be more older cases about religion, given that religion was more abundant and played a greater role in society back then. But somehow it's really only in the last 50 years that it has become such a hot-button issue.
For a long time, "religion" in the US meant protestant Christianity. Tawney was the first Catholic on SCOTUS, and Brandeis was the first Jew. No other religions have made it onto the court (well, maybe some closet atheists or deists).
1947: Everson (5-4 decision). Cites Jefferson (primary author of 1A): wall of separation between church and state. So the court reiterates that language, but OK's public funds for transportation to parochial schools.
The case is famous for its rhetoric. The 3-prong test (the ideal number of prongs) to see if a law messes with the establishment clause:
TN wins this case. This is a bit like Marbury-- that case is famous for judicial review, but then delicately never exercises it. Here, the court holds that the law is constitutional (so rhetorically, fundamentalism wins), but the fine violates the TN constitution, and must therefore be remanded for a new trial. And by the way, the prosecutor shouldn't pursue this. And Scopes has moved away by then anyhow. So in practical terms, Scopes was not penalized.
But here the court sternly rebukes PA: ID is not science, and you can't sneak this brand of fundamentalism into the curriculum.
A MN scandal rag that publishes all sort of scurrilous things about politicians. The politicians don't like this, and pass a law saying that the journal's content must be reviewed prior to publication.
SCOTUS: this is just plain censorship. It is absolutely unconstitutional. Pre-publication restriction is bad.
Ellsberg steals papers that describe a pentagon study about whether or not the US ought to get into Viet Nam. These papers were not optimistic-- the pentagon accurately foresaw trouble, and predicted gloomy consequences in terms of China's and Russia's reactions. He edited the papers, trying to remove things that he thought might be damaging to the US. And then he sent them to the NYT and WaPo.
Nixon administration: don't publish this-- it'll damage the country, even if it would help us politically (because it shows we weren't the culprits-- it was the Democrats who ignored this story and got us into the war).
The papers edit the documents again, and publish. Quickly we get to SCOTUS. Note that it is inconceivable that a study like this would get published during WWII-- where a national conflict is not controversial, free press might get compromised a little bit. But here, this is the very essence of why we want a free press.
At least one US intelligence asset (in Moscow) was exposed and killed as a result of this publication.
If you're a public figure, even if a statement about you is false and damaging, you still can't sue for libel or slander unless you can show that the statement is malicious (i.e., known to be false, or callously indifference).
CA law says anybody can sue a corporation that makes untrue statements, because that's an unfair business practice.
Along comes Nike, under fire for bad conditions in factories. They hire various folks to defend their position and assert that they don't employ slave labor. So now Kasky sues.
Dismissed without deciding. The individual opinions say that this law is frought with danger-- it really impinges on a corporation's ability to defend its action. In the end, Nike did settle with Kasky, so maybe the court should have taken the case.
So commercial entities have some free speech rights, but not the same as individual. False advertising, e.g., is punishable, and other restrictions as well (contributions to political campaigns).
The prayer here is almost non-religious. Platitudes, basically. And Weisman (joined by the ACLU) brings suit.
Kennedy says very little about the Lemon test. He focuss on the coercive element. It might not be so hard on adults, but prayer in this context with children intrudes on the inviolable freedom of conscience.
Scalia's dissent is a rolicking ride. We have a long history of non-sectarian prayer at public events, and judges shouldn't foist their predilections on the public. And if this goes for high school graduations (even though this is a middle school ceremony at issue), why are we infantilizing these people, who are presumed to be adults? If we're going to talk about coercion, let's at least require real live coercion.
Why go with the majority? Well, the text of 1A suggests that this might be a problem (but you can go either way on that, because "establishment" to the founders might mean something different than what it does here; some states did have established religion, and 1A was about the federal government-- only in 1947 did 14A incorporate 1A against the states).
There's a slippery slope here, also. The prayer, such as it is, is Judeo-Christian (at least monotheist), so if we're truly going to have this kind of prayer, what all religions do we need to bring in? This is potentially divisive: everyone is going to want to see their beliefs better reflected.
What about a de minimis argument? Is this essentially harmless, and we should therefore not get so worked up about it? Well we have the third Lemon prong-- we've got a principal deciding which religions are in the rotation to give the invocation, so there's undesirable entanglement.
And people are free to have their own religious ceremonies off campus whenever they want. The argument that graduation is voluntary doesn't hold much water-- it's significant, and we shouldn't make children choose between their religious convictions and attending.
And this gives the clergy an opportunity to proselytize to the young, when they're most receptive to the message.
On the other hand, this is de minimis-- there's a long tradition of harmless prayer in schools. And we don't want to trivialize the notion of coercion, either. And if we keep religion entirely out of the schools, what we're really doing is establishing secular humanism, which isn't obviously any better than some small harmless prayers. Why should we treat religion as being more dangerous than all the other little ideologies we're indoctrinating children with?
But maybe we want this hard-and-fast rule, because religious lobbies are so powerful and effective, and we don't want to just get buried in thousands of suits over what can be accomodated.
McCreary: A big public display in the courthouse. This was new, and agressive-- a reaction to cases like Weisman. In this context, says SCOTUS, the 10 Commandments don't work: it's outwardly religious, trying to make a statement, and that's unconstitutional.
Van Orten: here the commandments are one item in a large display that has been there for decades. Here, it's just not a big enough deal to justify the effort of removing them.
That's a pretty fine distinction. And even though the second half of the Commandments are pretty commonly acceptable, the first half are sternly religious.
Again, it's kind of an awkward issue. SCOTUS starts every session with "may God save this honorable court." And Congress has a prayer before every session as well (and the chaplain is paid for out of public funds). The president takes an oath under God. The currency says "in God we trust." The court can tell middle schoolers how to have their graduation, but when it interferes with legislatures or executives, that's hard. And the more petty the distinction, the more awkward it is.
Private choice test: 5 elements.
There are all kinds of government support for religious institutions: contributions are tax deductible, the organizations are tax-exempt, there's aid for charities and hospitals, etc.
Thomas: What we're trying to achieve here is liberty-- education is important to that. If we sacrifice education in the name of liberty, that's a tragic irony.
Stevens: this is establishment.
Souter: the choice test is a facade. Also were creating the problem sectarian strife. By promoting religious sectarian identity, people will think of themselves as Catholics or Lutherans, and not Americans first.
The money comes with strings attached. And if we want to be non-sectarian, what all religious schools are we going to fund? It's dangerous (constitutionally) making sectarian distinctions, after all.
And religious self-selection will breed racial segregation in at least some areas.
And the last thing we want to do at this point is weaken public schools by taking the best students and the best parents and the public subsidies that came along with them out of the public schools. You're just left with the people who couldn't be bothered to do better.
The problem here isn't really the public schools: it's a breakdown of families, fundamentally. And economic problems, and drugs, etc. That would undermine any system, so don't blame the schools.
And finally, egalite-- not everyone is going to wind up the same, but they ought all to be able start off even.
And now, the pro-voucher side. You can read the constitution not to forbid any assistence whatsoever, but rather just not to prefer any religion: maybe that's what the establishment clause means-- no state religion. And there's no danger of that here.
The founders were suspicious of religion, but that was a relatively devout society, and these religious issues are only just cropping up now.
There's a free exercise issue here, also: all those parents of children who themselves are religious (~85%, apparently) are all paying taxes for public schools. And when they've finished paying those property taxes, they don't have extra money around to pay for their childrens' religious education, so this is impeding their religion. (See, e.g., Southworth: his money is being used to deny him his ideology).
Religions are not about to take over the country: they're no match for public government, and that's the institution that's been growing out of control.
Also, if we're worried about government hegemony, we want private schools to be able to compete, and that means funding some of them. And it we're worried about fanning the flames of religious sectarianism, the fact that the schools are required to take everyone will dampen zealotry.
The majority of the population doesn't think religion is so bad, and don't see "tainting" children with the brush of religion is necessarily a bad thing. It teaches morality, humility, discipline, and lots of values that parents want for their children.
If we go nuts striking down religious influences in education, we'll wind up with very few religious people. And what will replace religion? It's not merely an accident that people are religious: it's just too prevalent in world history to be a random thing. Will we be left with just existential angst? Or will they join some other charismatic cause?
We'd miss religious schools if they went away altogether. Education is failing in Cleveland, after all. And religious schools are getting more expensive to operate, as older faculty retire.
Maybe we shouldn't fund all students equally; maybe it would make more sense to fund the best and brightest more. (Red Army strategy: put your reserves behind successful offense, not failing defense).
Hey, look! 33% of public school teachers (this is in MKE) send their children to private schools. And children of recent presidents go to elite private schools (Sidwell Friends). So we can condemn these schools all we want, but we seem to like them when it comes right down to it.
The argument that all the motivated smarties will leave is sort of a Berlin Wall strategy: keep the cream of the crop in, lest we be left with the dregs.
And this isn't going to bankrupt the public schools: they lose a student, but they don't lose all the money that came from that property tax allocation, so you have fewer students, but more money per student. That reveals something about the system: the money isn't getting spent on the students, but rather on central administration and other stuff that's not actually educational, and that's part of the problem.
Plus, how could it get worse in Cleveland than it is now?
Plus, liberty: in a free society it's up to individuals to decide where to go to school, not the state. And it's up to parents to decide what their children do.
The first major issue was the attack on polygamy: congress outlawed it, Mormons protested, and the court upheld the law. (Abrams (?); Holmes dissents).
So basically, it's clear that the government can't directly punish or regulate the holding of religious beliefs. Most of the cases involve religiously motivated conduct or practices, and the extent to which they can be affected by legislation.
If it's a statute of general application, and it impedes a religious practice, it's probably OK anyway. But there are exceptions, such as Yoder. A statute of general application may be unconstitutional as applied to some religious group, if the interference is sufficient.
Burger (C.J.) reverses the WI Supreme Court. Attendance is a compelling state interest, but the Amish have a free exercise claim that we'll uphold. There's a sort of strict scrutiny analysis: compelling state interest, but not narrowly tailored.
The majority emphasises that this is fact-specific, and shouldn't make major ripples through society.
Douglas (dissenting): what about the children? Here we're focusing on the parents' interests, but the children deserve a chance to opt out, or make an intelligent decision to remain. They won't have an easy time leaving later, if they're not educated. And also, why should we let people out of school only on the basis of religion? People might have lots of reasons not to make their kids go to public schools.
This is the high water mark of Free Exercise, and the court has backed away from this (see Smith and peyote prohibition).
Text: constitution and statutes.
Policy: both pro and con.
Precedent supporting that policy.
Default order (text, history, precedent, policy)
Get to the core of the issue. Demonstrate that you should win. Focus on one or two main arguments, and then mention the several others that you didn't have time to develop. Don't neglect the arguments on the other side. (no need even to cite entire case names: go ahead and just cite a single party name if needed). Don't be afraid to mention Con Law I arguments, but don't wallow in them.