Unit 6: Civil Rights and Liberties

Freedom of Religion: In the Beginning…

As Level VII Scientologists (a little-known fact), the founding fathers had a strong interest in protecting their faith (and others) from oppression. But, for the first century-and-a-half or so, their efforts to ensure religious freedom had little impact on American life (greatly displeasing Lord Xenu).

When adopted in 1791, the First Amendment prohibited Congress from establishing a national church or passing laws restricting the free exercise of religion. Note that there are actually two distinct clauses: the first is the establishment clause. It specifies that Congress "shall make no law respecting an establishment of religion."

The second is the free exercise clause. It specifies that Congress may not pass laws "prohibiting the free exercise" of religion. These brief clauses had little immediate impact in the new nation; in fact, since the various state governments were not restricted by the First Amendment, they continued to support favored churches and discriminate against religious dissenters, much as they had in the colonial past.

Only one religious question came before the United States Supreme Court in the nineteenth century (seeReynolds v. US below). The Supreme Court, however, opened the door to hundreds of religion cases by the "incorporation" of the religion clauses in 1940. In that year, the Court ruled in Cantwell v. Connecticut that a local ordinance banning solicitation violated the religious rights of the Jehovah's Witnesses that brought the suit. Even though this was a local ordinance falling under a state's jurisdiction, the Court ruled that the First Amendment was "incorporated" by the due process clause of the Fourteenth Amendment, and therefore that the solicitation law should be overturned. In other words, individuals' First Amendment religious rights were protected from state as well as federal encroachment.

So you can thank the Supremes every time some guy in a black tie knocks on your door with a Bible.

Free Exercise Clause

The Court first explored the free exercise clause in 1879 when Mormons living in the Utah Territory argued that the laws prohibiting polygamy violated their First Amendment right to the free exercise of religion. In Reynolds v. US, the Court disagreed, holding that there was a difference between religious belief and religious conduct, and that the police powers of the state—the authority to protect the safety and welfare of the community—trumped religious rights.

In the 130 years since, the Supreme Court's interpretation of the free exercise clause has varied. In the decades following Reynolds, the Court continued to argue that an objectionable practice was entitled to no greater protection when rooted in religious belief than it would be if rooted in any other motive.

But around the middle of the twentieth century, the Court set more rigorous standards for restricting religion-based activities. In a series of cases, the Court ruled that when a form of conduct was rooted in religious belief, it was entitled to a greater degree of protection; the government could not restrict that conduct without "compelling" evidence of the government's need to interfere. For example, in Wisconsin v. Yoder (1972), the Court concluded that the refusal of Amish parents to send their children to school until the age of sixteen, as required by law, was protected by the First Amendment. (Note: this ruling does not entitle you to found your own religion in order to avoid school.)

But more recently, the Court has tended to revert to its older interpretation of the free exercise clause; in recent cases, it has used logic more consistent with Reynolds than Yoder. In 1990 in Employment Division v. Smith, the Court held that although peyote use was sanctioned by certain Native American religions, the state could deny unemployment benefits to two Native Americans fired for their drug use without violating their Constitutional rights. (The lesson, as always: if you're going to participate in an illegal Native American religious ceremony, don't get caught.)

Establishment Clause

But many of the most controversial of the Court's establishment clause decisions have surrounded education. Does state aid to religious schools violate the establishment clause?

The first answer to the question came in 1947, when the Supreme Court held that New Jersey could finance the transportation of Catholic school children on public buses. In Everson v. Board of Education, the Court said transportation, like fire and police protection, served the public welfare. So long as the primary beneficiary of the bus ride was the child, not the school, public aid was permissible.

The Child Benefit Theory that emerged from this ruling became a critical element in resolving subsequent cases of this type. This test was supplemented in 1971, in Lemon v. Kurtzman, a case that asked if state money could be provided to religious schools for books, materials, and teachers' salaries.

In reaching a decision, the Court asked three questions: Was the primary purpose of the aid secular in nature? Did it advance or inhibit religion in any way? Would the aid lead to the "excessive entanglement" of government with religion? In this case, the Court argued that monitoring the teachers' behavior would require constant surveillance, and therefore threaten the necessary separation of church and state.

The resulting "Lemon Test" and the Child Benefit Theory have become the primary legal standards for evaluating state assistance to religious schools. Using these criteria, the Court has decided that money could be provided for secular textbooks but not for school maintenance and repair. (So if your religious school falls down because the government didn't pay for repairs, enjoy those secular textbooks, and double-down on your tithing.)

Finally, the Court has allowed states to provide standardized testing to religious school students in school but access to speech, hearing, and psychological assessment by public employees only off-campus.

Recent Trends

In other words, the Court has tended toward a two-part approach to cases involving religion and schools: anincreased resistance to religious encroachment on the curriculum and practices within public schools, coupled with an increased tolerance for state assistance to religious schools. For example, the Court's opposition to prayer in school, first staked out in 1962 in Engle v. Vitale and reinforced in 1963 in Abington School District v. Schempp, has grown more emphatic. Similarly, the Court has taken a hard line in defense of Darwinian science and against the teaching of creationism in the public schools.

But on vouchers (publicly-funded tuition subsidies for students attending private-religious schools), as with other forms of public aid to religious schools, the Court has recently taken a more tolerant approach. This tolerance was first signaled in 1983, in Mueller v. Allen. And most recently, in 2002, in Zelman v. Simmons-Harris, the Court held that since Cleveland's voucher program was intended to advance educational opportunity, not religion, and since ultimately individual parents exercised the choice of where to spend their vouchers, the city's program did not violate the establishment clause.

Study Break

You may be familiar with the reflections of noted legal scholar Jay-Z on Fourth Amendment protections as applied to a routine traffic stop:

So I pull over to the side of the road 
And I heard, "Son, do you know why I'm stoppin' you for?"

Cause I'm young and I'm black and my hat's real low?

"Well you was doin' fifty five in a fifty four.

I ain't steppin' out of ****, all my papers legit.

"Do you mind if I look round the car a little bit?"
Well my glove compartment's locked, so's the trunk and the back
And I know my rights, so you gon' need a warrant for that.

Now, Jay-Z's legal analysis here has been shown to be somewhat wanting. But the fact remains that it pays to know your rights—and if Jay-Z had studied for the AP, he would've known that a) the cop did not need a warrant to search his car, only "probable cause" and b) refusing the cop's order to step out of the car could have led to his arrest. Pay attention to this section, or you could end up with 99 problems of your own.

Like so much else in the Constitution, we can blame (or credit) the British for these amendments. Back in the colonial days, the redcoats were especially obnoxious about quartering troops in private homes (basically forcing you to take on a roommate or ten, for free) and using "writs of assistance" (non-specific search warrants) to search American homes and ships. The Constitution's framers responded to these abuses with the Third and Fourth Amendments, which insist that people have a right to feel secure in their persons and property.

Because the government isn't exactly forcing you to house and feed Marines these days, the Third Amendment isn't much cited anymore. But the Fourth Amendment remains a big deal.

It protects people from "unreasonable search and seizures." Most commonly a search is "made reasonable" by obtaining a search warrant. The courts are entrusted with protecting our rights and issuing warrants only when convinced that there is probable cause that a crime is being committed and a search is necessary (or when informed by Batman that you're a bad guy).

But in several cases defined by the Supreme Court, the cops can still search you or your home without a warrant. Some of the reasons include the following:

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  Plain view. Any evidence lying within "plain view" of a police officer may be seized. For example, a bag of marijuana seen in the passenger seat of a car legally pulled over for speeding may be seized and used as evidence in court.
   
  
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  Consent. Anything may be searched if the owner grants consent.
   
  
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  An emergency. Several circumstances fit in this category. For example, the police may enter and search a building if they believe that an individual inside is in danger, or if they are in "hot pursuit" of a suspect.
   
  
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  The area immediately surrounding a person being arrested. The search is limited to the area under the immediate control of the suspect.
   
  
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  Probable cause involving a movable vehicle. Originally established in 1925 in Carroll v. United States, this exception was broadened in recent years to include anything within the car, including the glove compartment and passengers' possessions. (This is the precedent that Jay-Z misunderstood. He's clearly fallen behind on his judicial opinion reading.)
  

The Exclusionary Rule, established in 1914 in Weeks v. United States, requires that evidence obtained without a warrant or not covered by exceptions like those above is inadmissible in court. This protection was incorporated in 1961 (Mapp v. Ohio), increasing the scope of the Fourth Amendment's coverage.

In 1984, however, the Court narrowed the scope in ruling that evidence obtained through "good faith" searches was admissible in court. If a police officer conducts a search that proves to be technically illegal, but was believed "in good faith" at the time to be legal, the evidence is admissible. In the case prompting this ruling, a police officer used a warrant that was technically flawed. In 1984, the Court also held that evidence illegally obtained could be used in court if its discovery was inevitable.

Protection of People, Not Just Places

If the cops can't usually search your home without a warrant, can they listen in on our phone calls? Why not—they're not actually searching you, are they?

That's the line of reasoning the Court initially applied when police began wiretapping suspects—the cops could go nuts, because they weren't actually infringing on the "protected private space" of the suspect. (We bet the last time you heard about "protected private space" was during an awkward classroom talk in kindergarten.)

However, in 1967, the Court ruled in Katz v. United States that wiretaps do constitute a form of search subject to Fourth Amendment regulation, and the police must obtain a warrant before tapping a phone, even if the phone was in a public booth.

Critical to the Court's decision in this case was its conclusion that the Fourth Amendment protects people, not just places; the amendment's intent was not only to protect our homes and property from government's unreasonable encroachment, but also people and the privacy that they have come to expect in certain places and situations. More precisely, the Court held that when and where there is a reasonable expectation of privacy, that privacy must be respected, unless the authorities have a search warrant or the case falls into one of the exceptions allowing a warrantless search.

As complicated as this may be, we can at least thank the Supreme Court for making The Wire possible. For that, all is forgiven.

What the heck is a "penumbra," and what does it have to do with birth control? No, it's not the brand name of an exotic new drug. It's the reason the Supremes decided you have a right to privacy at all.

The Court has held that certain zones of privacy hover around the more precisely suggested guarantees within the Bill of Rights (like friendly Constitutional ghosts, or something). Justice William Douglas made the argument most fully in 1965 in Griswold v. Connecticut, a case involving the state's ban on contraceptives. In determining that the ban violated a "right to marital privacy," Douglas argued that in addition to the expressed guarantees regarding privacy in the Constitution, there were many others contained within the "penumbras," or shadows, lying along the edges of the Bill of Rights. In other words, in addition to the sort of privacy rights expressly protected under First, Third, Fourth, Fifth Amendments, these amendments also established "zones of privacy" that the government was equally bound to protect.

This understanding of privacy rights has been given broader application by the Court's conclusion that these rights should be incorporated under the Fourteenth Amendment—again, that means that states, not only the feds, need to respect this more comprehensive understanding of privacy.

In 1967, the Court applied the same reasoning in striking down a Virginia law forbidding interracial marriage: inLoving v. Virginia, the Court held that the choice of a spouse was also a decision protected by the sort of zone of privacy described by Douglass. And in 1972, the Court stretched the Griswold logic still further in holding that single persons possessed the same privacy right earlier extended to married couples under Griswold.

Abortion

Hooray—another totally non-controversial topic! You want to skip this one so a fight doesn't break out?

No? Okayyy…here goes nothing.

In 1973, the Court held that the zone of privacy around marriage and family decisions included the right to seek an abortion (Roe v Wade). Yet, the Court also recognized that the government had both a responsibility to ensure that abortions were safely conducted and, as the fetus approached the ability to survive outside the womb, a responsibility for its protection.

Therefore, the Court ruled that, during the first three months, a woman could obtain an abortion without any government interference. During the second three months, as the risks posed by an abortion to the mother increased, governments could intervene in order to protect the mother's health. And during the last three months, as the fetus reached viability, governments could regulate and even prohibit abortions. (Want a catchy rhyme to help remember that? How about: Three plus three, let that fetus be. Sorry, that's the best we've got.)

In 1992, the Court revised its abortion stance in Planned Parenthood v. Casey. In this case, the Court upheld a constitutionally protected right to abortion, but it eliminated altogether the trimester framework guiding state laws. Instead, the Court held that the government possessed an interest in the fetus prior to the third trimester and, therefore, states had broader authority to intervene earlier than the last three months of the pregnancy. A woman still had a privacy right to an abortion, but states could introduce requirements of various sorts (i.e. parental notification requirements) so long as they did not pose an "undue burden" or present "substantial obstacles" to this right.

Defending the Court's decision to uphold the right to abortion, Justice Anthony Kennedy wrote, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Conservative Justice Antonin Scalia has ridiculed this as the "sweet-mystery-of-life passage," proving that even the most eminent legal scholars can be as catty as the mean girls in high school.

Finally, in 2007, the Court upheld Congress's 2003 partial-birth abortion ban in Gonzales v. Carhart andGonzales v. Planned Parenthood. The Court held that the law did not impose an undue burden since more common methods of abortion were unaffected by the ban. But Justice Ruth Bader Ginsburg argued that the decisions signaled a new hostility to abortion rights within the Court.

After the Court ruled in Miranda v. Arizona, police departments began issuing "Miranda Cards" to their officers containing the warning that they were to read every person they arrested. Ernesto Miranda, the accused criminal at the center of the case, sold autographed copies of the card for $1.50.