DOCSLIB.ORG

Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act Scholarly Commons @ UNLV Boyd Law Scholarly Works Faculty Scholarship 1995 Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act Jay S. Bybee University of Nevada, Las Vegas -- William S. Boyd School of Law Follow this and additional works at: https://scholars.law.unlv.edu/facpub Part of the Constitutional Law Commons Recommended Citation Bybee, Jay S., "Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act" (1995). Scholarly Works. 351. https://scholars.law.unlv.edu/facpub/351 This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository administered by the Wiener-Rogers Law Library at the William S. Boyd School of Law. For more information, please contact [email protected]. VANDERBILT LAW REVIEW VOLUME 48 NOVEMBER 1995 NUMBER 6 Taking Liberties With the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act Jay S. Bybee* I. INTRODUCTION ................................................................... 1542 II. THE FIRST AMENDMENT AND THE BILL OF RIGHTS: TEXT AND THE FOUNDING ............................................................ 1546 A The Structure of ConstitutionalPowers: Of Powers, Immunities, and Disabilities................... 1546 B. The Structure of the Bill of Rights......................... 1552 1. The Second through Eighth Amendments: A Bill of Privileges and Immunities .......................................... 1552 2. The First Amendment: A Congressional Disability .................................................... 1555 a. "Congress"as Congress, and not the states.......................................... 1557 b. "Congress"as Congress, and not the federaljudiciary ........................ 1560 3. Reconciling Text and Theory ...................... 1563 * Associate Professor of Law, Louisiana State University; B.A., 1977; J.D., 1980, Brigham Young University. I am grateful to the following who read earlier drafts of this Article and offered their encouragement and comments: Joseph T. Bockrath, Daniel 0. Conkle, John Devlin, Frederick Mark Gedicks, Randall D. Guynn, Marci A. Hamilton, Kurt T. Lash, John 0. McGinnis, Val D. Ricks, Gregory C. Sisk, and Steven D. Smith. I received fime research and editorial assistance from J. Todd Benson. Any remaining errors are my own. 1539 HeinOnline -- 48 Vand. L. Rev. 1539 1995 1540 VANDERBILT LAW REVIEW [Vol. 48:1539 C. The FirstAmendment in the Interregnum: Government Disabilityor PersonalPrivilege? . .... 1567 1. The First Amendment in Congress: The Sedition Act Debates .................................. 1567 2. The First Amendment in the Supreme Court ........................................................... 1571 III. THE FIRST AND FOURTEENTH AMENDMENTS: TEXT AND THE RECONSTRUCTION ....................................................... 1577 A. The FirstAmendment and the Thirty-Ninth Congress ................................................................. 1578 1. The First Amendment and the Debate Over John Bingham's Proposed Amendment, February 1866 ...................... 1579 2. The First Amendment and the Debates Over the Proposed Fourteenth Amendment, May-June 1866 ..................... 1584 B. The Firstand FourteenthAmendments in the Wake of Ratification............................................... 1589 1. The First and Fourteenth Amendments in Congress: The Enforcement Debates .... 1589 a. The FirstAmendment as a congressionallyenforceable personal privilege................................................. 1590 b. The FirstAmendment as a court- enforced disability................................. 1592 c. Epilogue: The strange case of the Blaine Amendment ............................... 1596 2. The First and Fourteenth Amendments in the Supreme Court ................................. 1598 IV. THE FIRST AND FOURTEENTH AMENDMENTS: FORGOTTEN TEXT AND MODERN THEORIES ........................................... 1605 A. The Textual Basis for Incorporation...................... 1605 1. The Privileges or Immunities Clause ........ 1605 a. The Privileges or Immunities Clause as a mandate for substantive rights ..... 1606 b. The Privileges or Immunities Clause as a mandate for equal privileges or immunities........................................ 1610 2. The Due Process Clause ............................. 1612 a. The Due Process Clause and "absorption"of the FirstAmendment... 1613 HeinOnline -- 48 Vand. L. Rev. 1540 1995 1995] TAKING LIBERTIES 1541 b. The Due Process Clause and "incorporation"of the First Amendment ........................................... 1614 3. Reconstructing the First Amendment; The Consequences of Text and Theory ...... 1615 B. Section 5 and the Enforcement of the Fourteenth Am endm ent ............................................................ 1616 1. Judicial Enforcement of Section 1 ............. 1616 2. Remedial Congressional Enforcement of Section 1 ..................................................... 1619 3. Independent Congressional Enforcement of Section 1 ................................................. 1620 V. SECTION 5 AND THE FIRST AMENDMENT: THE CONSTITUTIONALITY OF THE RELIGIOUS FREEDOM RESTORATIONACT .............................................................. 1624 A. Section 5 and the Reconstructionof the First Am endment ............................................................ 1624 B. Reconciling Section 5, the FirstAmendment, and R FRA ...................................................................... 1628 VI. CONCLUSION ...................................................................... 1632 No act of Congress can authorize or make a law respecting an establishment of religion, or prohibiting the free exercise thereof.... Would it be appropriate legislation to enforce [the Fourteenth Amendment] that Congress should pass an act prohibiting a State from doing so or directing it to do so? Congress is simply restrained from doing this itself. [A]n attempt on the part of Congress to exercise powers not granted, and much more, powers prohibited, is a usurpation that cannot be justified by any legislation under the fourteenth amendment .... I [The States] shall not substantially burden a person's exercise of religion .... 2 1. Cong. Globe, 42d Cong., 1st Sess. 572 (1871) (statement of Sen. Stockton). 2. Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, § 3(a), 107 Stat. 1488 (1993), codified at 42 U.S.C. § 2000bb (Supp. V 1993). HeinOnline -- 48 Vand. L. Rev. 1541 1995 1542 VANDERBILT LAW REVIEW [Vol. 48:1539 I. INTRODUCTION In July 1788 the North Carolina legislature was considering ratification of the Constitution, a constitution that did not contain a Bill of Rights. As the delegates reached the Religious Test Clause,3 Henry Abbot remarked: Some are afraid... that, should the Constitution be received, they would be deprived of the privilege of worshiping God according to their consciences, which would be taking from them a benefit they enjoy under the present con- stitution. They wish to know if their religious and civil liberties be secured under this system, or whether the general government may not make laws in- fringing their religious liberties.... Many wish to know what religion shall be established. 4 James Iredell, Federalist, former North Carolina Attorney General, and future Supreme Court justice, responded that he was "astonished" that anyone should conceive that Congress had "authority to interfere in the establishment of any religion whatso- ever."' He went on, "If any future Congress should pass an act con- cerning the religion of the country, it would be an act which they are not authorized to pass .... Every one would ask, 'Who authorized the government to pass such an act?' It is not warranted by the Constitution, and is barefaced usurpation."6 Iredell then referred to the Guaranty Clause 7 and asked, rhetorically, "why a guaranty of religious freedom was not included." Iredell answered his own ques- tion: "Had Congress undertaken to guaranty religious freedom, or any particular species of it, they would then have had a pretence to interfere in a subject they have nothing to do with. Each state, so far as the [Guaranty Clause] does not interfere, must be left to the opera- tion of its own principles."8 In 1993 Congress enacted the Religious Freedom Restoration Act ('RFRA") 9 which provided that government, including the United States and the states, "shall not substantially burden a person's exer- 3. U.S. Const., Art. VI, cl. 3 ("N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States"). 4. Jonathan Elliot, ed., 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 191-92 (Burt Franklin, 2d ed. 1888) ("Elliot's Debates"). 5. Id. at 194. 6. Id. 7. U.S. Const., Art. IV, § 4 ("The United States shall guarantee to every State in this Union a Republican Form of Government"). 8. 4 Elliot's Debates at 195 (cited in note 4). 9. Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1448 (1993), codified at 42 U.S.C. § 2000bb (Supp. V 1993). HeinOnline -- 48 Vand. L. Rev. 1542 1995 19951 TAKING LIBERTIES 1543 cise of religion even if the burden results from a rule of general appli- cability" except where the government can demonstrate that the burden furthers "a compelling governmental interest" and is "the least restrictive means of furthering that... interest."1 In his Rose Garden ceremony upon
Load more

Recommended publications
  • Petitioner, V
    No. 19-___ IN THE Supreme Court of the United States _________ MARK JANUS, Petitioner, v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, ET AL., Respondents. _________ On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit _________ PETITION FOR WRIT OF CERTIORARI _________ JEFFREY M. SCHWAB WILLIAM L. MESSENGER LIBERTY JUSTICE CENTER Counsel of Record 190 South LaSalle Street AARON B. SOLEM Suite 1500 c/o NATIONAL RIGHT TO Chicago, IL 60603 WORK LEGAL DEFENSE (312) 263-7668 FOUNDATION, INC. 8001 Braddock Road Suite 600 Springfield, VA 22160 (703) 321-8510 [email protected] Counsel for Petitioner QUESTION PRESENTED Is there a “good faith defense” to 42 U.S.C. § 1983 that shields a defendant from damages liability for de- priving citizens of their constitutional rights if the de- fendant acted under color of a law before it was held unconstitutional? (i) ii PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT Petitioner, a Plaintiff-Appellant in the court below, is Mark Janus. Respondents, Defendants-Appellees in the court be- low, are American Federation of State, County, and Municipal Employees, Council 31; Simone McNeil, in her official capacity as the Acting Director of the Illi- nois Department of Central Management Services; and Illinois Attorney General Kwame Raoul. Other parties to the original proceedings below who are not Petitioners or Respondents include plaintiffs Illinois Governor Bruce Rauner, Brian Trygg, and Ma- rie Quigley, and defendant General Teamsters/Profes- sional & Technical Employees Local Union No. 916. Because no Petitioner is a corporation, a corporate disclosure statement is not required under Supreme Court Rule 29.6.
    [Show full text]
  • A Dissertation Submitted in Partial Satisfaction of the Requirements for the Degree Doctor of Philosophy
    UNIVERSITY OF CALIFORNIA, SAN DIEGO PUBLIC CATHOLICISM AND RELIGIOUS PLURALISM IN AMERICA: THE ADAPTATION OF A RELIGIOUS CULTURE TO THE CIRCUMSTANCE OF DIVERSITY, AND ITS IMPLICATIONS A dissertation submitted in partial satisfaction of the requirements for the degree Doctor of Philosophy in Sociology by Michael J. Agliardo, SJ Committee in charge: Professor Richard Madsen, Chair Professor John H. Evans Professor David Pellow Professor Joel Robbins Professor Gershon Shafir 2008 Copyright Michael J. Agliardo, SJ, 2008 All rights reserved. The Dissertation of Michael Joseph Agliardo is approved, and it is acceptable in quality and form for publication on microfilm and electronically: Chair University of California, San Diego 2008 iii TABLE OF CONTENTS Signature Page ......................................................................................................................... iii Table of Contents......................................................................................................................iv List Abbreviations and Acronyms ............................................................................................vi List of Graphs ......................................................................................................................... vii Acknowledgments ................................................................................................................. viii Vita.............................................................................................................................................x
    [Show full text]
  • Written Statement of Hannah C. Smith Senior Counsel, Becket
    Written Statement of Hannah C. Smith Senior Counsel, Becket Subcommittee on the Constitution and Civil Justice of the Committee on the Judiciary U.S. House of Representatives Hearing on “The State of Religious Liberty in America” February 16, 2017 * * * * * Chairman King, Ranking Member Cohen, and Distinguished Members of the Subcommittee: Good afternoon and thank you for the invitation and opportunity to offer testimony at today’s hearing on “The State of Religious Liberty in America.” My name is Hannah Smith, and I am Senior Counsel at Becket, a non- profit, public-interest law firm dedicated to protecting religious liberty for people of all faiths. At Becket, we have defended Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians. We have litigated several cases before the United States Supreme Court, all of which have resulted in favorable decisions, including the Little Sisters of the Poor in Zubik v. Burwell,1 Holt v. Hobbs,2 Burwell v. Hobby Lobby,3 and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.4 Today, I’d like to illuminate the state of religious liberty in America through the prism of recent cases to focus on two principles. The first principle is that government must provide equivalent legal protections to religious groups when it provides those same protections to secular groups. The second principle is that 1 Zubik v. Burwell, 136 S. Ct. 1557 (2016) (religious ministries’ RFRA challenge to the Affordable Care Act’s HHS mandate). 2 Holt v. Hobbs, 135 S. Ct. 853 (2015) (a Muslim prisoner’s RLUIPA challenge to a ban on religious beards).
    [Show full text]
  • The First Amendment in Its Forgotten Years
    The First Amendment in Its Forgotten Years David M. Rabbant TABLE OF CONTENTS I. Free Speech Before the Courts 522 A. Supreme Court Cases 524 I. Avoiding First Amendment Issues 525 Resisting Incorporation into the Fourteenth Amendment 525 Excluding Publications from the Mails 526 Neglecting First Amendment Issues 529 Limiting the Meaning of Speech 531 2. Addressing First Amendment Issues 533 Justice Holmes and the Bad Tendency of Speech 533 Review of Statutes Penalizing Speech 536 The First Amendment as the Embodiment of English Common Law 539 3. Hints of Protection 540 4. Summary 542 B. Decisions Based on State Law 543 1. The Bad Tendency Doctrine 543 Speech by Radicals 543 Obscenity and Public Morals 548 2. Libel 550 3. Political Speech 551 4. Labor Injunctions 553 5. Speech in Public Places 555 C. The Judicial Tradition 557 t Counsel, American Association of University Professors. 514 Prewar Free Speech II. Legal Scholarship 559 A. The Social Interest in Free Speech 563 B. The Distinction Between Public and Private Speech 564 1. Schofield's Formulation of the Distinction 564 2. Other Scholarly Support for the Distinction 566 C. The Expanding Conception of Free Speech 568 D. The Rejection of Blackstone 570 E. The Limits of Protected Speech 572 1. The Direct Incitement Test 572 2. Pound's Balancing Test 575 3. Schroeder's Test of Actual Injury 576 4. The Benefits of LibertarianStandards 578 F. The Heritage of Prewar Scholarship 579 III. The Role of the Prewar Tradition in the Early Develop- ment of Modern First Amendment Doctrine 579 A.
    [Show full text]
  • James G. Blaine and Justice Clarence Thomas‟ „Bigotry Thesis
    Forum on Public Policy Public Financing of Religious Schools: James G. Blaine and Justice Clarence Thomas‟ „Bigotry Thesis‟ Kern Alexander, Professor, Educational Organization and Leadership, University of Illinois at Urbana-Champaign Abstract United States Supreme Court Justice Clarence Thomas writing for a plurality of the Court in Mitchell v. Helms in 2000 advanced the idea that state constitutional prohibitions against public funding of religious schools were manifestations of anti-Catholic bigotry in the late 19th century. Thomas‟ reading of history and law led him to believe that James G. Blaine a political leader in the United States of that era who advanced a proposed amendment to the U.S. Constitution that would have prohibited states from funding Catholic schools was himself imbued with anti-Catholic bigotry and that his proposed amendment was a well-spring of religious intolerance that today prevents public funding of Catholic schools. This article attempts to look further into the issue to determine whether Thomas‟ understanding is accurate and whether it comports with the reality of conditions of the era and whether Blaine in fact had such motivations as ascribed to him by Justice Thomas. The article concludes that Thomas‟ view is overly simplistic and is based on an insular perception of Protestant versus Catholic intolerance in the United States and leaves out of consideration the fact that the real and larger issue of the era in the western world was the struggle between secularism and sectarianism, modernity and tradition, science and superstition, and individual liberty and clerical control. Importantly, the article concludes that Thomas‟s narrow thesis ignores international dimensions of conflicts of the era that pitted the impulse of nationalism and republican government against control of ecclesiastics regardless of whether they were Catholic or Protestant.
    [Show full text]
  • 150 Years of Research : a Bibliography of the Indiana University School of Law Faculty, 1842-1992
    Maurer School of Law: Indiana University Digital Repository @ Maurer Law 150 Years of Research: A Bibliography of Indiana University School of Law Faculty, Law Library Publications 1842-1992 1992 150 years of research : a bibliography of the Indiana University School of Law Faculty, 1842-1992 Linda K. Fariss Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/bibliography Part of the Legal Biography Commons, Legal Education Commons, Legal History Commons, Legal Profession Commons, and the Legal Writing and Research Commons Recommended Citation Fariss, Linda K., "150 years of research : a bibliography of the Indiana University School of Law Faculty, 1842-1992" (1992). 150 Years of Research: A Bibliography of Indiana University School of Law Faculty, 1842-1992. 1. https://www.repository.law.indiana.edu/bibliography/1 This Brochure is brought to you for free and open access by the Law Library Publications at Digital Repository @ Maurer Law. It has been accepted for inclusion in 150 Years of Research: A Bibliography of Indiana University School of Law Faculty, 1842-1992 by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. 150 Years of Research: A Bibliography of the Indiana University School of Law Faculty, 1842-1992 Indiana University School of Law Bloomington, Indiana 150 Years of Research: A Bibliography of the Indiana University School of Law Faculty, 1842-1992 compiled by: Keith A. Buckley Mitchell E. Counts Ralph F. Gaebler Michael M. Maben Marianne Mason F. Richard Vaughan Nona K. Watt edited by: Linda K.
    [Show full text]
  • Trinity Lutheran and the Future of Educational Choice: Implications for State Blaine Amendments Richard D
    Mitchell Hamline Law Review Volume 44 | Issue 2 Article 4 2018 Trinity Lutheran and the Future of Educational Choice: Implications for State Blaine Amendments Richard D. Komer Follow this and additional works at: https://open.mitchellhamline.edu/mhlr Part of the Education Law Commons, First Amendment Commons, and the Religion Law Commons Recommended Citation Komer, Richard D. (2018) "Trinity Lutheran and the Future of Educational Choice: Implications for State Blaine Amendments," Mitchell Hamline Law Review: Vol. 44 : Iss. 2 , Article 4. Available at: https://open.mitchellhamline.edu/mhlr/vol44/iss2/4 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in Mitchell Hamline Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Komer: Trinity Lutheran and the Future of Educational Choice: Implicatio TRINITY LUTHERAN AND THE FUTURE OF EDUCATIONAL CHOICE: IMPLICATIONS FOR STATE BLAINE AMENDMENTS Richard D. Komer† I. INTRODUCTION ...................................................................... 551 II.STATE BLAINE AMENDMENTS ................................................. 554 A. The Protestant Public Schools and Proto-Blaines ................ 555 B. The Federal Blaine Amendment ...................................... 569 C. Interpretation of State Blaine Amendments: The Good, the Bad, and the Unknown .......................................................
    [Show full text]
  • School Choice and State Constitutions
    School Choice and State Constitutions A joint publication of The Institute for Justice and The American Legislative Exchange Council by Richard D. Komer and Clark Neily reference guide School Choice and State Constitutions A Guide to Designing School Choice Programs The Institute for Justice and The American Legislative Exchange Council April 2007 by Richard D. Komer and Clark Neily table of contents Foreword 1 Introduction 2 How to Use This Report 7 State Summaries Alabama 10 Alaska 11 Arizona 12 Arkansas 14 California 15 Colorado 17 Connecticut 19 Delaware 21 Florida 22 Georgia 24 Hawaii 26 Idaho 27 Illinois 29 Indiana 31 Iowa 33 Kansas 34 Kentucky 35 Louisiana 38 table of contents Maine 39 Maryland 41 Massachusetts 42 Michigan 44 Minnesota 46 Mississippi 48 Missouri 49 Montana 52 Nebraska 53 Nevada 55 New Hampshire 56 New Jersey 57 New Mexico 58 New York 60 North Carolina 62 North Dakota 64 Ohio 65 Oklahoma 67 Oregon 69 Pennsylvania 70 Rhode Island 72 South Carolina 73 South Dakota 75 Tennessee 77 Texas 78 Utah 79 Vermont 81 Virginia 82 Washington 84 West Virginia 87 Wisconsin 88 Wyoming 91 Model Legislation 93 Glossary 95 Additional Resources 97 About the Authors 99 Acknowledgments 100 About IJ 101 About ALEC 102 foreword Whenever school choice legislation is considered, the stakes are enormous. Children, parents, teachers and taxpayers all stand to benefit dramatically from well-designed programs. That’s why it is so important for all school choice legislation to be very carefully crafted, starting with an eye toward its constitutionality under relevant state constitutional provisions.
    [Show full text]
  • The Blaine Amendments & Anti-Catholicism
    U.S. COMMISSION ON CIVIL RIGHTS School Choice The Blaine Amendments & Anti-Catholicism U.S. COMMISSION ON CIVIL RIGHTS Washington, DC 20425 Visit us on the Web: www.usccr.gov On June 1, 2007, the U.S. Commission on Civil Rights (the “Commission”) conducted a briefing in Washington, D.C. on the status and effect of Blaine Amendments, which are provisions in state constitutions that restrict the use of public funds to support private religious schools. The Commission heard testimony from Anthony R. Picarello, Jr., Vice President and General Counsel of the Becket Fund; K. Hollyn Hollman, General Counsel of the Baptist Joint Committee for Religious Liberty; Ellen Johnson, President of American Atheists; and Richard D. Komer, Senior Litigation Attorney at the Institute for Justice. Following are biographies of the four panelists, prepared statements by the four panelists, a written statement submitted by the Anti-Defamation League, and the transcript of the proceeding. Table of Contents Panelists’ Biographies ......................................................................................................... 2 Panelists’ Statements .......................................................................................................... 5 Anthony R. Picarello, Jr. ................................................................................................. 5 K. Hollyn Hollman ........................................................................................................ 13 Ellen Johnson ...............................................................................................................
    [Show full text]
  • An Analysis of First Amendment Jurisprudence on the Supreme Court Case of Locke V
    UNLV Theses, Dissertations, Professional Papers, and Capstones Spring 2010 An Analysis of First Amendment jurisprudence on the Supreme Court case of Locke v. Davey Alexander John Herzog University of Nevada Las Vegas Follow this and additional works at: https://digitalscholarship.unlv.edu/thesesdissertations Part of the Civil Rights and Discrimination Commons, Educational Administration and Supervision Commons, and the Education Policy Commons Repository Citation Herzog, Alexander John, "An Analysis of First Amendment jurisprudence on the Supreme Court case of Locke v. Davey" (2010). UNLV Theses, Dissertations, Professional Papers, and Capstones. 23. http://dx.doi.org/10.34917/1348611 This Dissertation is protected by copyright and/or related rights. It has been brought to you by Digital Scholarship@UNLV with permission from the rights-holder(s). You are free to use this Dissertation in any way that is permitted by the copyright and related rights legislation that applies to your use. For other uses you need to obtain permission from the rights-holder(s) directly, unless additional rights are indicated by a Creative Commons license in the record and/or on the work itself. This Dissertation has been accepted for inclusion in UNLV Theses, Dissertations, Professional Papers, and Capstones by an authorized administrator of Digital Scholarship@UNLV. For more information, please contact [email protected]. AN ANALYSIS OF FIRST AMENDMENT JURISPRUDENCE ON THE SUPREME COURT CASE OF LOCKE V. DAVEY by Alexander John Herzog Associate of Arts Adirondack Community College 1989 Bachelor of Arts State University of New York, College at Potsdam 1991 Master of Science Indiana State University 1995 A dissertation in partial fulfillment of the requirements for the Doctor of Education in Education Leadership Department of Educational Leadership College of Education Graduate College University of Nevada, Las Vegas March 2010 ABSTRACT An Analysis of First Amendment Jurisprudence On the Supreme Court Case of Locke v.
    [Show full text]
  • The Demise of the Blaine Amendment and a Triumph for Religious Freedom and School Choice: Espinoza V
    THE DEMISE OF THE BLAINE AMENDMENT AND A TRIUMPH FOR RELIGIOUS FREEDOM AND SCHOOL CHOICE: ESPINOZA V. MONTANA DEPARTMENT OF REVENUE Charles J. Russo, M.Div., J.D., Ed.D.* William E. Thro, M.A., J.D.** I. INTRODUCTION ....................................................................................... 132 II. A BRIEF OVERVIEW OF THE SUPREME COURT’S JURISPRUDENCE ON STATE AID TO FAITH-BASED SCHOOLS AND THEIR STUDENTS PRIOR TO ESPINOZA .................................................. 133 A. Generally ................................................................................... 133 B. The Emergence of the Child Benefit Test .................................. 134 C. The Nadir of The Child Benefit Test ......................................... 135 D. Rejuvenation of the Child Benefit Test ..................................... 136 III. TUITION TAX CREDITS ........................................................................ 141 A. Generally ................................................................................... 141 B. Judicial History of Tuition Tax Credits .................................... 142 1. Religion-Based Claims ........................................................ 143 2. Non-Religion-Based Claims ............................................... 145 IV. ESPINOZA V. MONTANA DEPARTMENT OF REVENUE .......................... 147 A. Background ............................................................................... 147 1. Montana Tax Credit Program .............................................. 147 2.
    [Show full text]
  • Reynolds V. United States: the Ih Storical Construction of Constitutional Reality Donald L
    University of Minnesota Law School Scholarship Repository Constitutional Commentary 2004 Reynolds V. United States: The iH storical Construction of Constitutional Reality Donald L. Drakeman Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Drakeman, Donald L., "Reynolds V. United States: The iH storical Construction of Constitutional Reality" (2004). Constitutional Commentary. 276. https://scholarship.law.umn.edu/concomm/276 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. REYNOLDS v. UNITED STATES: THE HISTORICAL CONSTRUCTION OF CONSTITUTIONAL REALITY Donald L. Drakeman* In the Supreme Court's first case interpreting the Constitu­ tion's free exercise clause, Chief Justice Morrison Waite en­ dowed the next two centuries of religion clause jurisprudence with a generous legacy of constitutional history. In that 1879 case, Reynolds v. United States, the Chief Justice called upon the founding fathers to decide whether polygamous Mormons in the Territory of Utah were immunized by their faith from prosecu­ tion under a federal statute outlawing bigamy. 1 The Court's rul­ ing offered Mr. Reynolds, a minor Mormon official, no hope of sanctuary within the First Amendment. More important than this specific decision, however, was the historical approach to in­ terpreting the religion clauses adopted by the Chief Justice, which has had the effect of essentially writing Thomas Jefferson and James Madison directly into the First Amendment.
    [Show full text]