Combo with First Amendment: Freedom of Speech and Religion

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First Amendment
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“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.” – Freedom of religion, speech, assembly of the press, and right to petition – written by James Madison – Came from the oppression and limitation of the past
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Freedom of Religion
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– Prevents government from establishing an official religion – We can choose to participate or not participate
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First Amendment- First Principles
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1. Affirms freedom of the individual 2. Free expression is foundation of democracy 3. Tells government to “keep it’s hands off” our religion, ideas, and ability to express ourselves 4. Other people have rights, too (equality) 5. When rights collide, the government must balance those rights (why we have a judicial system) 6. Helps us make choices (exposure)
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Freedom of the Press
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– government cannot control what is printed in newspapers and books, broadcast on TV or radio or offered online
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Freedom of Assembly
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– citizens can come together in public and private gatherings
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Right to Petition
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– citizens can ask for changes in the government Ex. collecting signatures on a petition, write, call, e-mail, join bigger groups that lobby the government
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Freedom of Speech
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– government cannot stop us from saying what we think – have right to criticize and share opinions with others * are some exceptions
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Market place of ideas
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– People can exchange their ideas freely – ideas don’t have to be popular or liked (exchange of opinions for the furthering of intelligence) – are boundaries in the market
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FoS Cases
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– people aren’t always arrested for what they say, but their conduct when doing so – interrupts normal civilian life
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Fully protected speech
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– everything not in the unprotected or limited protection category
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Speech with limited protection
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– vulgar speech and commercial speech
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Unprotected speech
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– obscenity, child pornography, incitement to riot, fighting words, threats – not essential to market place of ideas (no benefit)
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Forms of speech
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– art, music, theater, dance, entertainment, spoken, written, symbolic – also choose not to speak (WV State Board of Education V. Barnette)
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Reasonable, prudent person test
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– test used by the Court to try and determine the verdict of a case – A reasonable, prudent person (majority) would think …. of ….
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Imminent lawless action
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– helps define the limits of free speech – speech not protected if intends to incite a violation of the law that is both imminent and likely – likely to incite or produce such action – Brandenburg V. Ohio (1969)
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Fighting words
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– words spoken face-to-face that are likely to cause an imminent breach of the peace between the speaker and listener (verbal slap) – clear and present danger, balancing test, incitement test – don’t convey an idea
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Clear and present danger
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– did clear and present danger of unlawful action exist? – didn’t have to occur immediately after speech – If yes, then speech not protected
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Balancing test
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– downplayed probability of act – balances speaker’s rights and harm speaker’s words could cause
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Incitement test
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– speaker urges crowd to take unlawful action – imminent lawless action – Will audience respond with violence? – action happens within a short period of time – gives greater protection to speaker
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Hate Speech
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– speech motivated by bigotry and racism – like fighting words – protecting victims would only make the government look like they are censoring and promoting a certain viewpoint
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Defamation
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– false expression about a person that damages that person’s reputation – slander and libel
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Slander
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– spoken defamation
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Libel
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– written defamation – New York Times V. Sullivan
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Commercial speech
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– speech used to advertise certain things (prescription drugs, food, clothing, services, etc…) – government can ban commercial speech that is misleading, false, or about illegal products
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Miller Test
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– test used to figure out if something is obscene or not – Miller V. California (1973) 1. “Community standards” – appeals to prurient interests 2. Does it depict sexual conduct in any way? 3. Lacks value (artistic, literal, political) – answer 3 yes = obscene – applies only to adult conduct – under 18 = pornography (federal law and federal prison)
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Chaplinsky V. New Hampshire
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Date: 1942 Facts: Jehova’s witness adressed a police officer using curse words, Chaplinsky arrested for breach of peace LQ: Was Chaplinsky’s speech protected under the 1st Amendment? CD: No, he used fighting words
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Sustained the conviction
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– Supreme Court agrees with the lower court
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Hustler Magazine V. Falwell
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Date: 1988 Facts: parody of advertisement promoting a type of alcoholic beverage; well-known minister was accused of having a drunken relationship with his mother; at bottom of article, magazine said that the advertisement was not real; Falwell sues for libel and emotional damage LQ: Does the 1st Amendment’s protection extend to making of patently offensive statements about public figures, resulting in their suffering emotional distress? CD: The magazine’s speech was protected, and although it may have caused harm, the accusations were stated to be false
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National Socialist Part V. Skokie
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Date: 1970-76 Facts: Members of the Nazi Party of America wanted o march in Skokie Illinois, a predominately Jewish suburb; march in uniform and announce their support for white supremacy and anti-sematic polices; not allowed to march LQ: Did the Illinois supreme court improperly deny the Nazi party’s request for a stay of the district court’s junction? CD: Yes
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R.A.V. V. City of St. Paul
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Date: 1992 Facts: RAV burnt a cross in the yard of a black family; arrested because ordinance which stated acts “likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender” LQ: Was the ordinance overly broad? CD: Yes, it “prohibits otherwise permitted speech based solely on the subjects the speech addresses”
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Virginia V. Black
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Date: 2003 Facts: Two people burnt a cross and were caught under a Virginia statute LQ: Can a state prohibit cross burning carried out with the intent to intimidate? CD: No, because some people will burn crosses for idealogical reasons and is hard to tell why someone burns a cross.
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Matthew Shepard case
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Facts: Shepard was openly gay and went to a bar; Henderson and McKinney lie to Shepard about their sexuality; kidnap Shepard and torture him, later Shepard’s barely alive body is found and he dies in a hospital – Wyoming had previously voted against hate crime legislation because it would give special rights to homosexuals
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Snyder V. Phelps
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Date: 2011 Facts: Members of the Westboro Baptist Church picket at a fallen soldier’s funeral; father sues for emotional damage LQ: Is the WBC’s picketing protected? CD: Yes
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Brandenbug V. Ohio
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Date: 1969 Facts: Member of KKK; rude during speech (deport everyone who isn’t American); Ohio ruled he couldn’t do that LQ: Was Brandenburg’s right to free speech violated? CD: Yes
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Schenck V. United States
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Date: 1918 Facts: Boys shouldn’t sign up to be drafted; communist and don’t sign up for the selected services; peacefully petition the government; espionage act LQ: Can he say that because of the free speech clause? CD: Not allowed to say that during wartime; paranoia between communists, socialists, and anarchists
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Debs V. United States
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Date: 1918 Facts: Leader of socialists party protests involvement in WWI; praises people who didn’t sign up and don’t fight in the war LQ: Espionage act and speech violated? CD: No
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Abrams V. United States
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Date: 1919 Facts: Defendants printed two papers and threw from the window, denounced US efforts to impede Russia and sending troops LQ: Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech clause of the First Amendment? CD: No
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Gitlow V. New York
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Date: 1922 Facts: Gitlow hands out pamphlets calling for communism LQ: Is the NY law (punishes advocacy to overthrow the government by force) an unconstitutional violation of the free speech of the first amendment? CD: Yes
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Whitney V. California
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Date: 1925 Facts: Whitney member of Communist Labor party in CA, prosecuted under California syndicalism act (change how government is run) during speech LQ: Did it violate the 1st or 14th amendments? CD: No, free speech isn’t an absolute right
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Dennis V. United States
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Date: 1948 Facts: Knowingly conspire and teach overthrow of US government LQ: Did the Smith act’s restrictions on speech violate the first amendment? CD: Did not inherently violate it
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Public person
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– a person who enjoys the media’s attention and has put his or herself in the spotlight, then you gave less privacy rights than people living their lives quietly
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Public concern
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– speech that relates to political or social concern to the community – is there a valid reason for the public to be interested?
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New York Times V. Sullivan
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Date: 1963 Facts: Ad published in the NYT said that MLK’s arrest was actually an attempt to destroy MLK’s campaign. Montgomery city commissioner (Sullivan) filed libel action against the newspaper and four black ministers (endorsers). Alabama courts give Sullivan $500,000 for case, b/c Sullivan did not have to prove he had been harmed LQ: Did Alabama’s libel law infringe on the First Amendment’s freedom of speech and freedom of press? CD: First amendment protects publication of all statements, true or false, when they are made without malice
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Gertz V. Rovert Welch, Inc.
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Date: 1970-79 Facts: Gertz attorney hired by family trying to have a civil suit, officer had shot and killed son (convicted of murder), Gertz accused of being communist LQ: : Does the First amendment allow a newspaper or broadcaster to assert defamatory falsehoods about an individual who is neither a public official nor a public person? CD: Different since not a public person, Gertz wins
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Dunn and Bradstreet V. Greenmoss
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Date: 1980-89 Facts: Credit repot agency, released statement saying Greenmoss filed for bankruptcy (wrong), changed it but it didn’t go to everyone LQ: If a trial judge does not instruct the jury to only award punitive damages caused by intentional slander or reckless conduct, can a jury still award punitive damages to a plaintiff defamed by private speech? CD: Yes
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Symbolic speech
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– conduct that expresses an idea Ex. sit-ins, flag waving, demonstrations, wearing certain items, pledge – Did the speaker intend to convey a certain message? – Manner, time, what is beind done
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Tinker V. Des Moines
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– Mary Beth Tinker, brother, and friend silently protest US participation the the Vietnam war (wear black armbands) – School had policy that students couldn’t wear clothing implying political ideas (suspended) – family brings suit against the school – Tinker wins, student’s still have rights even on school property
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Texas V. Johnson
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Facts: Johnson burnt flag in front of city hall as protest to Reagan administration policies LQ: Is flag burning protected symbolic speech? CD: Yes, this was
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Cohen V. California
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Facts: Cohen wears shirt against the Vietnam war, had explicit words on it LQ: Did California’s statute, prohibiting the display of offensive messages, violate freedom of expression as protected by the First amendment? CD: Cohen can wear the shirt, because it doesn’t incite violence
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Establishment clause
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“Congress shall make no law respecting an establishment of religion, or prohibit the free exercise thereof…”
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Religion and public schools
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– football players pray before their game and eat food provided by a church (LaFayette, GA) – Can public schools offer student led prayers at events such as football games and graduation?
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Reynolds V. United States
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Date: 1878 Facts: challenges anti-bigamy statute after Reynolds married second wife LQ: Does the federal anti-bigamy statute violate the 1st Amendment’s free exercise clause because plural marriage is part of religious practice? CD: No, because bigamy is a crime regardless of religious practices (no different than a religion wanting to practice human sacrificing)
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United States V. Ballard
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Date: 1944 Facts: Defrauded public by practicing a false, “supernatural” religion LQ: Is the respondent being unconstitutionally persecuted for his religious beliefs? CD: Yes, it’s not the role of the jury to determine a religion’s veracity. Just because a religious doctrine can’t be proven doesn’t mean it’s not protected religion
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Sherbert V. Verner
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Date: 1963 Facts: Member of 7th day Adventist Church fired after she refused to work on Saturday (Sabbath day); SCESC denied her benefits (didn’t accept religious justification) LQ: Did the denial of unemployment compensation violate the 1st and 14th Amendments? CD: Yes, puts burden on Sherbert’s ability to freely exercise her faith
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Yoder V. Wisconsin
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Date: 1972 Facts: Amish (old & conservative) prosecuted under Wisconsin law requiring all children to attend public schools until 16; parents refused because high school attendance was contrary to their religious beliefs LQ: Did Wisconsin’s requirement violate the 1st Amendment by criminalizing the conduct of parents for religious reasons? CD: Yes, religious is more important than school attendance
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Frank V. Alaska
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Date: 1979 Facts: Frank shot and illegally brought a moose for a pot loch dinner after a death (religious practice); charged under Alaskan rule LQ: Was Frank wrongfully charged because his actions were a sacred religious action? CD: Yes, moose is like the Christian’s wine and bread (Free exercise of religion)
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Goldman V. Weinberger
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Date: 1986 Facts: Orthodox Jew (ordained Rabbi) not allowed to wear yarmulke while on duty in Air Force uniform LQ: Did the AF regulation violate the free exercise clause? CD: No, because uniformity is more important than religion in the military – later a law was passed which allowed religious accessories to be worn in a neat and conservative manner
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Lyng V. Northwest Cemetery Prof. Association
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Date: 1988 Facts: US Forest service wanted to harvest lumber and make roads on land used by Native Americans for religious rituals long ago LQ: Did the 1st Amendment’s Free Exercise Clause prohibit the government from harvesting or developing the Chimney Rock Area? CD: No, government can’t tend to everyone’s needs
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Employment Div. of Oregon V. Smith
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Date: 1990 Facts: Smith and Black worked at private drug rehabilitation clinic; clinic fired them b/c they used a hallucinating drug (peyote) for religious purposes; Oregon employment division denied them compensation b/c fired for work related misconduct LQ: Can a state deny unemployment benefits to a worker fired using prohibited drugs for religious purposes? CD: Yes, because the act was illegal. Exempting Smith would cause even more problems with exemptions from obligatory community actions – job requirements are important (drug therapists using drugs)
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Church of Lukumi Babalu Aye V. Hialeah
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Date: 1993 Facts: Animal sacrifice (eaten) used; Florida ordinance prohibits the possession of animals for sacrifice/slaughter (exemptions for state licensed actions) LQ: Did the city of hialeah’s ordinance violate the 1st Amendment’s free exercise clause? CD: Yes, ordinance was not neutral or generally applicable (aimed to suppress church)
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Compelling government interest
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– no use for government to be involved in the business (private), not harming community – does the case concern the government or need the government’s assistance?
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City of Boerne V. Flores
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Date: 1997 Facts: Archbishop sues zoning authorities under 1993 RFRA b/c he can’t expand his church onto historically preserved district LQ: Did Congress exceed its 14th Amendment enforcement powers by enacting the RFRA, which, in part, subjected local ordinances to federal regulation? CD: Yes, no evidence suggesting that Boerne’s historic preservation ordinance favoured one religion over another
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Locke V. Davey
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Date: 2004 Facts: Washington State Promise Scholarship gives scholarship $, but not for a degree in Theology, Joshua Davey forfeited promise scholarship $ so he could obtain a pastoral major at a private Christian college LQ: If a state provides college scholarships for secular instructions, does the 1st Amendment’s free exercise clause require a state to fund religious instruction? CD: No, it is not based on 1 religion, but a certain subject of study – entangles state and religion (Establishment clause)
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Epperson V. Arkansas
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Date: 1968 Facts: Arkansas statute prohibited teaching evolution CD: State can’t prohibit teaching certain topics based on religious doctrines
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Kitzmiller et al. V. Dover
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Date: December 20, 2005 Facts: Dover school area requires teachers to read a disclaimer before starting evolution and intelligent design. Intelligent design will be taught, and the form says, “The reference book Of Pandas and People is available for students to see if they would like to explore this view in an effort to gain an understanding of what ID actually involves.” CD: Judge Jones says the policy violates the Establishment Clause, because ID is related to creationism. Therefore, it is not a science. (139-page ruling)

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