UNIVERSITY OF MIAMI SCHOOL OF LAW



RELIGION & LAW SPRING 2011 TAKE-HOME FINAL EXAM

BEST STUDENT ANSWERS (LARGELY UNEDITED)

Question I: Student Answer #1 (Best Overall)

Majority: I. We have established that laws that expressly discriminate against religion are subject to Strict Scrutiny (SS)—only upheld if narrowly tailored to a compelling government interest. Hialeah. And we have established that there is an obligation to comply with “valid and neutral laws of general applicability.” Smith. But we now must address if, after Smith, that obligation to follow the law is subject to a constitutionally compelled exception—or as presented here, what is the proper standard to evaluate a claim that an Alaska statute prohibiting discrimination against marital status in housing violates a landlord’s free exercise (“FEX”) right to exclude those tenant who are unmarried and (according to the sincere religious beliefs of the landlord) living in sin.

We now repeat what we said in Smith: the only FEX exception to the application of a neutral, generally applicable law is in a “hybrid” case that involves both FEX and another recognized constitutional claim. In light of the confusion in the lower courts, we also clarify that the proper standard to evaluate the “hybrid” claim is whether the Plaintiff (“P.”) articulates an independently viable claim, sufficient on its own to overcome summary judgment, for another constitutional right beside the FEX claim—the analysis used by the 1st and DC Circuits. Finally, we agree with the en banc MO that the P. here does not have such a claim under either the Fifth Amendment’s Takings Clause (“FAM-TC”) or the First Amendment’s Free Speech provision (“FAM-FS”). As such, we uphold the AK statute and dismiss P.s’ FEX claim under a proper hybrid Smith analysis.

II. We first address the claim presented in C1 that the “hybrid analysis” section of Smith was mere dicta. But contrary to C1, the hybrid analysis is the heart of the constitutional requirements articulated in Smith. Legislatures, of course, are free to grant exceptions to their own statutes of general applicability up to the limits presented by the Establishment Clause—conscientious objector status and exemptions to Title VII for churches provide two examples of such. However, to hold that application of a neutral law is unconstitutional simply because it proscribes certain conduct is to say that the constitution requires each religious observer to be subject only to his own law—a result that would be manifestly absurd in a pluralistic society such as our own. Smith. The constitution does not allow legislatures to discriminate against religion. But it does not exempt the religious from the law. Thus, we ask whether a neutral law violates FEX and another fundamental right as a test to determine if the application of the law is constitutionally repugnant—a test that does not require that we look at the centrality of a religious belief, the sincerity of the believer, or any other religious test which would be improper for this court to make.(Lee, Stevens, J. dissenting). Rather, to violate the constitution, the neutral law will have to violate it beyond claims of FEX violations that are out of the competence of a court to decide. See Smith; US v. Ballard.

III. Hybrid analysis is also sufficiently protective of religion, contrary to C2. It is important to reiterate, as we did in Smith, that facially neutral laws of generally applicability do not control what religious observers believe, only what conduct society may permit to express that belief. Observers who feel ill treated by legislative bodies are free to petition their senators for exemptions; they may speak and write op-eds about why certain laws are bad, and they may run for office on a platform that would overturn such legislation—similarly, landlords who want to discriminate unlawfully are free to sell their property or get out of the landlord business altogether. But laws that regulate conduct, such as child labor laws (Prince) or tax requirements (Lee) are necessary for a society to live together despite divergent beliefs. Legislatures are equipped to make the decisions about what conduct to restrict in the face of various beliefs, not this Court. Indeed, in Lyng, we upheld the government’s construction of a road that did in fact physically invade upon a worship site because, even before Smith, “government simply could not operate if it were required to satisfy every citizen’s religious desires . . . to reconcile the competing demands on government, many of them rooted in a sincere religious belief, [is a task that], to the extent that it is feasible, is one for the legislature.” (Lyng).

This concern with the role of courts animates our hesitancy to rely upon religious claims alone, which is why we demand that P. show a violation of another right sufficient to overcome summary judgment in our hybrid analysis. We cannot base decisions on mere allegations that, say, peyote-taking is speech. Instead we will require the proof of legislative overreach that is demonstrated by an independently viable claim. Here, P. has raised no such claim. As the MO correctly held (as did the original dissent), there is no basis for a FAM-TC when the prohibition of discrimination existed before P. owned the property; the prohibition does not physically invade P.’s space any more than laws that prohibit discrimination on the basis of race or gender; and it does not render his property without value—by creating a wider pool of renters, the law potentially adds to the value of the property. And our precedent holds that there is not the same protection of FAM-FS rights in commercial speech, such as advertising a property, to create a viable claim.

IV. The dissent argues (as did C2) that by placing such emphasis on the strength of the hybrid claim, we have written the FEX right out of the constitution. The dissent instead argues that we should go back to a previous era and reinstate SS under the Sherbert/Yoder framework as the proper constitutional test for protection of a constitutional right. But this misunderstands the nature of the right. FEX means that a believer has the right to exercise his religion within the framework of existing laws regulating conduct. FEX also means that the state is prohibited from singling out religious conduct for prohibition. Hialeah. But FEX does not mean that every law that regulates conduct should be subject to SS if it incidentally burdens someone’s religious belief—a standard that would subject nearly every exercise of the legislative power subject to SS.

Furthermore, holding legislative enactments to an impossible SS standard does not strengthen the right in question so much as it threatens in practice to dilute SS beyond all recognition. Under the Sherbert/Yoder regime, neutral laws that did not implicate any constitutional rights beside FEX were generally upheld, with courts holding that such disparate government interests as “maintaining a fair system for determining who serves in the military” (Gillette), “maintaining a sound tax system” (Lee; Swaggart), and preventing welfare fraud (Bowen) were “compelling” under a SS analysis. This trend toward permitting “administrative” concerns to become “compelling” is heightened when SS is said to be required, as the cases applying RFRA and later RLUIPA demonstrate. Unreasonable standards placed upon courts and legislatures lead to unreasonable results when those standards cannot be applied consistent with history and common sense. The result is a weak SS, using the mandatory language of “compelling” and “narrowly tailored” but no more protective of rights, and creating precedent for preventing government inconvenience to be held as compelling. Instead, courts and legislatures must have both flexibility AND applicable standards, such as those pre-existing constitutional standards we embrace by implementing the strong hybrid test we announce today.

Dissent: I. The majority opinion upholds Smith and its restrictive analysis of FEX claims based on grand notions of “legislative competence” and “the role of the courts.” But Smith has proven to be an unworkable standard in the lower courts. To the extent that the Court clarifies the Smith standard today, it is in a way that essentially removes FEX as a constitutionally protected right—a move that is against the plain language of the constitution as well as the will of the federal Congress and state legislatures, who, by their actions in passing first the federal RFRA and then the state RFRAs have made it manifestly clear that they do not want this Court to protect them from the sincere religious beliefs of their own constituents. Thus, we would instead reenact the only standard that protects the FEX right in a manner befitting a fundamental right deserving of constitutional protection—SS as used under Sherbert/Yoder. We respectfully dissent.

The majority is correct when they note that Smith requires clarification—as of this writing, the circuits are split as to whether a “hybrid” analysis even exists, or whether the paragraph in Smith that appears to announce the test is mere dicta, as is followed in the 6th Circuit and addressed by C2 below. But that is because Smith cannot be understood on its own terms: either FEX is a constitutional right or it is not. There is no space or precedent for a so-called hybrid right that only exists when partnered with other rights. And on this question the constitution is clear: Congress [and by incorporation, the States] shall make no law . . . prohibiting the Free Exercise [of Religion].” (U.S. Const. Amd. I). As Justice Souter wrote in Hialeah, “if a hybrid claim is one in which a litigant would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional provision,” then “there would be no reason for the Court . . . to have mentioned FEX at all.” Yet this is the position that the majority embraces today in its “independently viable claim” interpretation of Smith. The First Amendment’s protection of FEX is essentially written out of the constitution as an independent right.

II. The majority then claims that this “strong” hybrid analysis, requiring another independent claim, is necessary to protect legislatures from having their every law challenged and held up to SS and to provide courts with meaningful standards to apply. The majority claims that it is not the role of the courts to balance the need for public order with individual rights. But it is the role of this court to uphold constitutional rights. See Sherbert; Yoder; Thomas. Furthermore, legislatures have not expressed the need to be protected from an onslaught of FEX claims in the courts—rather, Congress enacted RFRA specifically to overrule the result in Smith and bring back SS. After RFRA was held unconstitutional, the federal Congress then passed RLUIPA, again mandating SS of FEX claims, and 13 states adopted RFRAs of their own to protect FEX. 12 other states, including, significantly, AK, interpret their state constitutions to require SS of FEX claims. (Text at 341). The legislative branch has demonstrated how it wants to balance the need for societal order against the FEX claims of religious believers, and has stated that the religious claims deserve SS as a matter of law.

III. Finally, there is no reason to believe, as the majority apparently does, that subjecting statutes that burden FEX to SS would lead to endless challenges to or invalidations of valid laws that serve important societal needs. The majority points to Prince (a challenge to child labor laws) and Lee (a challenge to the Social Security tax) as marking the kinds of vital laws that, under SS, become subject to FEX challenges. However, in both of those cases, the laws in question were upheld under a SS analysis as justified by a compelling governmental interest. If a law is so important as to justify the burden on the FEX of religion, the state ought to be able to articulate the compelling interest that underlies the law, and ought to be able to narrowly tailor the law to advance that interest—a challenge that at least 25 states, including AK, have shown themselves willing to take on either under their state constitutions or their state RFRAs. Indeed, this same anti-discrimination law was upheld by the AK Supreme Court using the SS mandated for FEX claims under the AK constitution. Swanner. Non-discrimination has been held to be a compelling state interest in our cases as well. Bob Jones University. Even Smith itself did not necessarily require “strong hybrid analysis” in order to uphold Oregon’s anti-peyote law—control of dangerous drugs is potentially a compelling state interest, and it is possible that the Oregon law was narrowly tailored to that interest. However, we did not have the opportunity to evaluate the Oregon statute because we instead articulated a new standard, one that has proved unworkable.

We should follow the AK Supreme Court and C3, and hold that, under a traditional SS analysis, as is appropriate for evaluating a law that substantially burdens a constitutional right, the AK anti-discrimination statute survives this SS. Both the provision of housing and the prevention of discrimination are compelling governmental interests, and this law is narrowly tailored to prevent discrimination. The statute does not deprive P. of his livelihood or mandate what P. may believe—it instead states that those who voluntarily go into the commercial rental market are obligated by the state not to discriminate against persons who wish to rent. And we agree with the majority that the statute does not deprive P. of property to raise a FAM-TC or impede his FAM-FS. The statute survives even under the proper SS analysis, and P.’s claim should be dismissed.

Question I: Student Answer #2 (Second Best Overall)

Majority: Reversed. We hold that neutral policies that forbid or limit religiously-motivated conduct are subject to an intermediate level of scrutiny. This scrutiny requires a balancing test where we weigh the interests at stake. First, we must weigh the burden of the law on the religious believer. Second, we must weigh the burden of an accommodation on the government and on society. To determine whether an accommodation is appropriate, we must determine whether the burden the law places on the individual is greater than the burden on society and the government. This intermediate scrutiny should not be confused with intermediate scrutiny as applied to other rights. Religion is a different kind of right that must be approached with a different test.

When free exercise is at issue, we believe that even neutral policies that forbid or burden religious motivated conduct requires heightened scrutiny. However, we agree with Scalia in Smith that to adopt a compelling interest standard would create too high of a threshold and would cause anarchy. The reason is that there are many religions in this country. Within any religion there may be a variety of beliefs that vary between denominations, sects or even individuals. To ask the government to accommodate every nuance of every individual’s religious beliefs is impossible. However, some form of heightened scrutiny is necessary because most of this country is ignorant about the religious beliefs of others. When Scalia acknowledged that “leaving accommodation to the political process will place at a religious disadvantage those religious practices that are not widely engaged in…”, that is exactly the type of tyranny of the majority that we seek to avoid. Although not all laws are created by openly discriminatory intentions like those in Hialeah, there is always some level of disrespect or discrimination behind a law that affects another’s religious beliefs because the drafters do not know or care about its application to that religion. We need to avoid the prejudice that results from allowing the majority religion to decide what is neutral based on the norms with which they are familiar. We agree with the Court’s statement in Zorach that “We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary.” We believe that to not accommodate the sincerely held religious beliefs of our citizens is to be hostile to religion and we agree with Kent Greenwalt (p.87) that “religious beliefs and practices… [are] more likely to generate conflicts with the state if not accommodated than do nonreligious beliefs and practices.” Scalia and O’Connor talk about the two separate ends of the spectrum, strict scrutiny or minimum scrutiny, where either neutral laws or the free exercise clause are rendered completely meaningless. This level of scrutiny will meet in the middle and thus avoid the perils of strict or minimum scrutiny.

We also hold that there is only one level of scrutiny applied to all cases regarding accommodation under neutral polices. We reject the hybrid rights analysis that is alluded to in Smith. First, we agree with C1 that the hybrid analysis was merely dicta. In talking about the unemployment cases and the “hybrid rights” cases, Scalia was really trying to divide up a more substantial history of finding in favor of accommodations for generally applicable laws and making it appear that the court has not supported such accommodations before. Further, we believe that hybrid rights analysis doesn’t make sense. We agree with Souter’s concurrence in Hialeah, which argued that the hybrid rights analysis is untenable because it either makes the free exercise claim unnecessary or is so expansive that it negates the Smith rule altogether. Further, as O’Connor pointed out in Smith, the bill of rights doesn’t say “free exercise only if it is related to free speech or freedom of association”. So, why would this Court decide that free exercise should be contingent upon showing that there is another right at stake? If an individual believes that another right has been violated, they should assert that violation rather than tying the success of their claim to a combination of free exercise and other rights violations. If neither claim would succeed on its own, the plaintiff should not prevail.

We also agree with C2, that this Court should reconsider Smith because Smith did not provide enough protection for religious claims. In Smith, peyote was a central belief to the religious practitioner so the burden on him was great. The burden to the government to accommodate his religion was small because the accommodation would not have interfered with the purpose of the law, which is to prevent drug abuse and the effects of drug abuse on society. Although O’Connor relies on a Congressional finding that peyote has a high potential for abuse, as the Dissent pointed out, she should have gone further and looked at the group asking for an exemption as the Court did in Yoder. If she did, her concurrence would have indicated other factors that negate government concerns, such as church doctrine forbidding nonreligious use of peyote and evidence that the church had tried to battle alcoholism. Since there is a long history of the use of peyote in Native American religion, indeed longer than the history of this country itself, it is clear that their use of peyote does not destroy society. Giving this exemption to Native Americans alone is akin to our decision in Yoder, which was based in part on acknowledging the long history that the Amish have of being successful, productive citizens with low crime rates despite their lack of secondary education. Since the Native American Church members have proven that they can be responsible citizens despite a use of peyote, then this accommodation is appropriate in this situation. As the Smith dissent points out, an exemption for one group or for one action does not necessarily mean that exemptions must be allowed for all other groups. If a religious group used a drug that had been linked to violence, crime or addiction, it could probably pass intermediate scrutiny to not allow an accommodation for religious use of this drug.

Further, the majority decision in Smith illustrates the concerns of this Court today that if accommodations are not subject to heightened scrutiny then societal norms will result in discrimination against minority religions. Smith upheld prohibitions on a drug used by the Native American Church that was only speculated to be able to cause harm. However, a drug that used in Christian ceremonies, alcohol, is legal despite its known harmful effects on society. One could illustrate similar problems with Reynolds, where the Court refused to accommodate Mormon religious beliefs because polygamy was “odious” among Europeans and only practiced by Africans and Asians.

When we apply this balancing test of burden on religious believers versus the burden on government and society, we see that denying an accommodation in this case does not satisfy intermediate scrutiny. The burden on Thomas and Baker is great because the law is forcing them to do something that they believe is facilitating sin. The burden or harm to society and government is weak in comparison. First, this is different from Bob Jones and the compelling government interest in eradicating racial discrimination. Marital status discrimination is not on the same level as race discrimination, which involves an innate characteristic and has a special history in this nation. If Christians had a history of lynching unmarried couples or burning crosses in their yard then the harm to society would be greater. The harm to society would also be greater if we were talking about racial discrimination because of the history of segregated housing which still lingers today despite legal efforts to eradicate it. Second, Thomas doesn’t really have any coercive power over the tenancy applicants. If he and Baker owned most of the properties in a particular city or area of the city, that might be a different matter. But, we are not aware of such a situation. These are private people who do not want to facilitate something that they believe according to their religion is wrong. Although if a job applicant situation, someone might feel pressured to change their beliefs, applying for a residence is a much less oppressive environment and there are many more options. Further, this accommodation is not a slippery slope. It is unlikely to cause a large number of applicants to be rejected based on non-marital status because we are talking about people that are renting to make a profit. Finally, this law is underinclusive if the government has an important interest in eliminating marital discrimination because the government itself jeopardizes that interest in only providing certain benefits to spouses.

We can briefly illustrate how our decision is consistent with prior holdings of this Court. This case is distinguishable from Lee & Gilette because it is undeniable that collecting taxes and conscripting individuals to fight on behalf of their country are central to the function of the government. On the other hand, in Sherbert, where there was only a speculation that fraudulent claims might dilute the unemployment funds or inhibit employer scheduling, the court required an accommodation. These cases illustrate the type of government & societal interests that will pass this intermediate scrutiny.

Dissent- We believe that Smith was correct in holding that strict scrutiny does not apply to generally applicable laws for several reasons. First, allowing accommodations to neutral and generally applicable statutes merely thrusts religion back into public debate and encourages conflict among religious and between religious and nonreligious people. Second, as the Berger majority points out in Thornton, “The First Amendment… gives no one the right to insist that in pursuit of their own interest others must conform their conduct to his own religious necessities.” Third, as Scalia points out in Smith, to do some kind of balancing test that determines the burden of a neutral law on an individual’s religion is not appropriate for the government or judges to determine.

Further, we believe that Scalia’s language about hybrid rights was not an attempt to manipulate the history of case law. Instead, he was trying to ascribe some logic to the variety of different ways this Court has decided cases of religious accommodation. He tried to show some consistency in the Court’s rulings and provide coherent guidance on the constitutionality of denying accommodations to neutral statutes. Although we believe that hybrid rights analysis is a good way to distinguish Smith from cases like Cantwell & Yoder, this is not a case in which hybrid analysis would apply. We believe that for strict scrutiny to be invoked, there must be an independently viable companion right. To interpret Smith otherwise would make it meaningless by allowing every conceivable claim of a hybrid right to trigger strict scrutiny. Here, Thomas and Baker are clearly grasping at straws to assert that requiring them to comply with anti-discrimination laws is a “taking” that violates their fifth amendment property rights or not allowing them to publish discriminatory requirements for leasing violates their right to free speech.

Since we believe that a viable hybrid rights claim does not exist, and since this law is a generally applicable law, not designed to discriminate against Thomas or people like him who hold similar religious beliefs, strict scrutiny does not apply. However, even if we agree with the majority that heightened scrutiny applies, as C3 points out, the statute at issue here would survive even strict scrutiny. As the Alaska Supreme Court held in Swanner, religious accommodations are not appropriate “where there are competing state interests of the highest order.” Also as in Swanner, there two government interests at stake in this case. First, the government has an interest in ensuring that all people have housing. The majority here is correct that there is no indication that allowing an accommodation here will go against this government interest. However, the government also has a compelling interest in protecting its citizens from discrimination based on irrelevant characteristics. We do not believe that the degradation that individuals experience from this kind of discrimination is diminished merely because marital status discrimination is not as pervasive as racial or gender discrimination. We further disagree with the majority that distinguishing married and unmarried couples in matters like worker’s compensation has the same effect as housing discrimination. Discrimination is different from making a legal distinction and there is a particular social ill that comes from discrimination that the State has a compelling interest in preventing.

Finally, just as this Court held in Lee, when people “enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.” This is also consistent with Rehnquist’s dissent in Thomas, that to “grant financial benefits for the sole purpose of accommodating religion” is a violation of the establishment clause. This situation is analogous because the burden on Thomas and Baker is purely economic. They have voluntarily engaged in property rental as a business and we believe that this personal choice does not entitle them to claim an accommodation for their religious beliefs. They could have chosen to engage in another business if they felt that they could not comply with the laws of their State.

Question II: Student Answer #1 (Best Overall & on Each Subissue; Far & Away the Best on the Seal and on WHP)

The Seal- The San Roberto seal could be challenged on the grounds that it is establishing religion through coercion and endorsement. However, this argument is unlikely to succeed because the court has made exceptions for practices that are “deeply ingrained” in U.S. history. (Marsh) In this instance, the city seal has been around since 1890 and no one has challenged it. This also shows that the seal is unlikely to cause divisiveness. (Van Orden) Further, the court (especially O’Connor) has made exceptions for displays where a reasonable observer who is aware of the history and context would not believe that the government is endorsing religion. (Capital Square) Most observers of the seal at the WHP will most likely be San Roberto residents, who are more likely to know that the monk and church are displayed on the seal out of respect for the heritage of San Roberto, which began as a Spanish Mission. Further, these are only two among many things on the seal and the other symbols have local meaning and are not religious. One could also argue that a monk and a church are not true symbols of Christianity in the way that a cross is, and this also makes Establishment less likely.

Although it seems like a losing argument, one could argue for endorsement by noting that the monk and church building are in prominent positions on the seal and unlike the Virginia Beach seal, there is no explanatory caption stating that these images are landmarks of San Roberto. Further, the large size and placement of the seal at the front of the stage would make it feel more oppressive. Further, one could dispute the importance of the history/tradition of the seal because the majority in Allegheny says that this argument only applies to the constitutionality of nonsectarian religion references and the symbols on the seal are adaptations of the Catholic symbol of St. Robert.

WHP - The WHP could be challenged as a violation of the establishment clause. This argument is unlikely to succeed because: 1) Although the WHP was set up in a large red and green striped tent (Christmas colors), was held during the week before Christmas and two spruce trees line the stage, these displays probably do not constitute endorsement. In Allegheny, the court found that Christmas trees are a symbol of secular celebration of Christmas. The one at issue in Allegheny was even large, decorated and placed in the entrance to city offices; these are undecorated at the side of the stage. Further, the display looks less like endorsement because unlike Van Orden, McCreary & Allegheny, it is not on government land, and the trees are inside a tent specifically erected for the WHP, so not everyone is exposed to it. 2) The pageant was a Christmas celebration for years but there is no evidence it caused divisiveness (the city leaders voluntarily discontinued it). This is like Breyer’s concurrence in Van Orden, which said that if the display had not been challenged in 40 yrs, it probably is not divisive and not likely to have been viewed by many people as a the government favoring religion and thus, less likely to violated establishment clause. 3) Both Kennedy’s dissent in Allegheny & Breyer’s concurrence in Van Orden argued that if the government does not recognize the central role of religion in society & drives religious symbols from the public, government alienates religious people, and indicates hostility toward religion. Therefore the pageant is appropriate, particularly as the multiplicity of displays makes it feel like they are not celebrating Christianity but rather the holiday season. 4) The WHP is not establishment under the Lemon test because the CC’s primary purpose was not religious, they wanted to bring more shoppers downtown. The setup of the WHP is closely related to that intent. It was set up in an empty lot downtown. Although it was set up during the week before Christmas, Christmas shoppers were the type of crowds that business owners were trying to draw in. 5) Even if the CC intended to reinstate the Christmas pageant, the WHP is a voluntary event. It is analogous to Brennan’s dissent in Engel where he argues that religion is not established by letting those who want to pray do so. 6) There has been a trend to uphold holiday displays that contain multiple religions because they are less likely to feel like endorsement (Allegheny). In fact, this is better than Allegheny because there are purely secular skits too, and therefore the WHP does not have an overall religious message. 7) As Stevens dissent in Van Orden points out, singular events like speeches and proclamations are different from displays, which never cease to exhibit their message. The skits are more like speeches, they are one-time events, not a symbol hung somewhere that could be taken out of context. Further, the content of speeches or skits can be attributed to the speaker not the government.

To argue that the WHP was unconstitutional endorsement of religion: 1) One could argue that the trees, the city seal, and the tent, without the presence of the symbols of other religions, gives the overall message is endorsement of Christianity and Christmas. However, this argument is pretty weak given the types of symbols at issue. Further, just as the crèche in Allegheny, these symbols are displayed in the front in a way that no one could think that they do not have the support and approval of the government. 2) Pursuant to O’Connor’s concurrence in Capital Square, one could argue that this is a public forum and the presence of Christian symbols but no other religious symbols indicate that the CC is allowing a private religious group to dominate a public forum in a way that “a formal policy of equal access is transformed into a demonstration of approval.” 3) For almost fifty years, the pageant was a Christmas pageant. One could argue that this is like McCreary, and that the primary purpose is to have a Christmas pageant and they are camouflaging that desire with secular and other religious skits. However, this argument is weak because there are 35 years between the last Christmas pageant and the WHP. Further, the city leaders self-regulated. They ended the pageant when they thought it was no longer appropriate, unlike McCreary where they only changed the display after suit was filed. 4) The mayor and the CC intended to reinstate the Christmas pageant and only didn’t do so because of the advice of their lawyer. (But, if the court agreed with Scalia’s dissent in McCreary, this is not relevant because the public is unlikely to be aware of their desires, so it doesn’t affect the appearance of the WHP to a reasonable observer.) 5) Unlike religious symbols, which the court has argued can sometimes have secular meaning, many of these skits, with content like the birth of Jesus, are probably religious. Since many of the skits have religious content, one could argue like the dissent from Allegheny (Brennan) that the CC’s sponsorship of the WHP is akin to government religious displays, that government cannot appropriate holidays in the name of pluralism, and that this is impermissible support of religion over nonreligion.

Reviewing the skits: The AAA could make a successful claim that CC’s review of the skits and denial of their skit constituted discrimination and entanglement because: 1) The CC should not be reviewing religious skits to determine if they are “appropriate”. Although we don’t know that they were reviewing the skits to evaluate the religious content, their actions suggest that they were not looking for offensive or age appropriate content because they did not review the secular skits or the musical acts. In addition to possible entanglement, making religious skits jump through hoops that others did not have to go through makes this look a little like Rosenberger, like disfavoring religion in a general program. 2) The WHP is probably a public forum, and the government must allow equal access to private speakers in a public forum. (Capital Square) Further, the content of the AAA’s skit, being about non-believers in the Christmas season, seems appropriate. Part of the prohibition on government endorsement of religion is that the government cannot convey that religion or a particular belief are favored. (Allegheny) Accepting all scripts except the atheist one and not providing an explanation seems to favor belief in God over no belief in God. We know from Torasco that a state cannot aid religions that believe in God over those that are not founded on a belief in God.

However, it could be argued that the CC’s review of the skits is not entanglement because a play is not an essentially religious act (unlike prayer) so there is less concern about entanglement because it is not going to lead to the degradation of a religious practice if government modifies it or refuses to allow it in the WHP. Further, this is distinguishable from Rosenberger because none of the other religious plays got kicked out and they didn’t say no religious plays at all. Someone could also make the argument that the discrimination against the AAA did not matter because, as Scalia argued in his McCreary dissent, early actions of our government make it clear that the establishment clause did not mean government neutrality between religion and nonreligion.

Father Jeremy (“FJ”). BATHS could be sued on the basis that FJ’s actions are delegation of government function and coercion. The coercion claim will likely succeed because: 1) BATHS is a public high school and therefore Feinberg shouldn’t be subjected to singing religious songs. 2) FJ told her to sing the songs or not participate, but there appears to be no reason to make this an all or nothing choice. There is no apparent harm in allowing her to sing only the nonreligious songs. 3) Although it is not legal coercion, it is probably psychological coercion. This is a school activity and schools are a special place where the establishment clause is subject to particular vigilance, because students are impressionable, their attendance is mandatory, teachers are role models and they are subject to peer pressure. (Edwards) 4) Feinberg would be singing on a stage in a public forum, so it is even more coercive than Lee where the students had the option of sitting or being silently reverent. It also isn’t like the legislative meeting in Marsh where people might be coming in and out during various points for various reasons. This is a stage where people will see the performers the whole time. 5) Another way this is distinct from Marsh is that this is not a practice that has been going on since the 18th century. This is not the tradition and ceremonial deism that the founders did not find threatening. These songs are not interwoven with the patriotic meaning that many traditions like legislative prayer and the pledge of allegiance have. 6) For Jackson, (dissent in Zorach) it was coercion merely to require people to attend public school and then to release them on the condition that they devote their time to religious purposes. This goes far beyond that.

In addition to coercion, there are at least two other facts that support an establishment clause violation. First, one could argue this is endorsement like Allegheny because there the government gave a Catholic organization the ability to display the crèche on government property. Similarly, here the public school has given a Catholic choir direction the ability to run the BATHS choir. Although the original director was in an accident, BATHS had 2-3 months to replace the director or at least to supervise FJ, but they did not. Second, although FJ gave Feinberg the option of not participating in the songs, the court has clearly stated allowing students to be exempt from religious observances does not eliminate an establishment clause violation. (Engel)

However, one could argue this is not coercion because: 1) It is distinguishable from Lee, where the court emphasized that Lee was in a position of control over the graduation, and therefore could exert pressure over the students. FJ was not a school employee, he was a volunteer and had no power over Feiberg’s actions. 2) This case is also different from Lee, because the emphasis there was on the importance of graduation. This is just a pageant, it is not a graduation or another once in a lifetime event. Especially since BATHS is a public school for the arts, there will be other similar things she can participate in. 3) Coercion is a two prong test- the person must be coerced and the thing that they are coerced to do must be religious. This does not satisfy the second prong because singing is not necessarily a religious act, like praying. 4) Singing Catholic songs is not within the framer’s original meaning of establishment, which was actual legal coercion, like mandatory observance. 5) It could be argued that FJ’s purpose might not be to promote religion but rather to introduce songs that he already knows and can help them with to prepare for the pageant.

Although FJ’s actions are likely coercion, they are probably not an establishment violation on the basis of delegation. First it could be successfully argued that this is not the type of government function that cannot be delegated. Further, this is distinguishable from Larkin because this is not delegation to religious institution, it is delegation to a person. Kiryas Joel says that individuals who happen to be religious are not prohibited from holding public office, but the government may not delegate to that individual just because of that person’s religion. BATHS didn’t give FJ the position because of religion, the director was injured in an accident in October and he volunteered to take his place without pay.

Question II: Student Answer #1 (2d Best Overal; Pretty Good on WHP; Strong on Choice of Skits & BATHS)

EST WHP : is it really secular?? Application of Lemon test to WHP:

1. Gov action secular purpose: WHP Impermissible purpose to endorse religion: Proof of endorsement in WHP: red and green big tent, Mayor’s idea to bring back WHP because she liked it during xmas as a child, spruce trees on each side of stage as mini xmas trees, CC selecting several xmas plays, CC rejects AAA, BATHS perform xmas songs, BATHS Alison Feinberg (AF) is coerced to sing xmas songs when she is Jewish and does not want to sing them, City seal has monk holding church. WHP Permissible if secular purpose: Proof WHP is secular: WHP title recommended by city attorney, WHP started because merchants wanted to increase business, secular festive colors used (red and green) for tent, City seal inside tent similar to secular liberty sign in Allegheny, spruce trees by stage in pots (maybe terracotta, not xmas pots), carefully reviewed skits to avoid religiously offensive aspects (maybe AAA play was offensive), plays arguably reflected city culture, BATHS singing could have added xmas songs because others were not holiday oriented. CC might lose on secular purpose prong because of the FEX issue with AF being coerced and the repeated xmas favoritism.

2. Action’s primary purpose neither advances nor inhibits religion: Judging the factors listed above, a court will likely agree that the WHP seems to have more xmas-oriented themes, décor, messages, plays, songs, etc. The people excluded in the course of the facts are the AAA (not religious) and AF (Orthodox Jewish). WHP might contribute to the sentiments that the US is a Christian nation. There is a conflict here between people being excluded and the GOV doing something it wants to do. On the other hand, it is also plausible that the broadest “primary effect” of the WHP is to attract business and the CC is just doing something to bring benefits/traffic to San Roberto. Because the third prong of the Lemon test, entanglement, has collapsed into the second prong and because it does not appear as though the CC or San Roberto are directly involved in making decisions for religious organizations, the third prong is not necessary here. Maybe a court would say the WHP violates the Lemon Test due to the coercive nature of AF’s situation and the outright exclusion of the AAA.

EST Claim: Large Red and Green Striped tent [MAF: Tent not really this big an issue] Unlike the holiday display of the xmas tree, the moenorah, and the liberty sign in County of Allegheny v. ACLU, the red and green tent stands alone at the edge of the downtown area without other religious colors, symbols, or signs. Allegheny’s analysis asks whether the tent has the effect of endorsing xmas over other holidays or if it reflects the festive and secular air of the WHP. The tent, potentially in a tall cone shape, may appear as a large xmas tree at the edge of the city. Depending on lighting inside the tent, lighting surrounding the tent, its proximity to other buildings downtown, and the frequency and volume at which xmas songs can be heard, the tent may create the illusion of a large xmas tree growing out of the downtown area. This accommodates a raised stage and bleachers, therefore it is obviously quite a massive structure. It is possible this tent looks like a massive lit-up xmas tree, similar to that of NYC’s Rockefeller Center. The colors red and green are xmas colors and are arguably not secular. Society traditionally associates red and green as the colors used to indicate xmas.

If the tent is not in a cone shape, yet still is massive in size and glows red and green all through the day and nighttime hours, it is still possible to argue it appears as though the CC or the city of San Roberto is in violation of the EST Clause (EST CL).

Defense against EST Claim: Large Red and Green Striped tent: The CC and San Roberto would have to argue that the location of the WHP tent is at the edge of downtown, not the dead center, to negate the xmas endorsement claim. The CC and San Roberto would also have to argue that the shape of the WHP tent is not that of an xmas tree, but of a circus tent, constructed to be large enough to accommodate the bleachers for people of the city to enjoy the WHP. Furthermore, red and green are secular holiday colors, which merely add to the air of festivities for the WHP. Because it is the location of the WHP, the structure needs to be sturdy enough, yet festive enough, to make residents and visitors feel welcome. Because the prompt provides no other indication that there are other holidays represented with signage or anything else near the tent, San Roberto and CC might lose on this claim, because in Allegheny the context of the surrounding holiday décor and the liberty sign made the display secular. But, because the city seal is inside the tent on a big banner, CC and San Roberto could attempt to argue this is similar to Allegheny.

AAA brings EST violation CC picking skits, plays, rejecting AAA: AAA will argue: The CC viewed religious content more carefully to make sure it was appropriate for the WHP; however, this could be interpreted to mean the CC was carefully selecting more skits and plays with xmas content rather than attempting to be secular. The results of the selection: several plays about the birth of Jesus and xmas miracles, 2 Chanuka plays, 1 Kwanzaa play, 1 Native American play, and 1 Buddhist play might appear as a predominantly xmas-oriented selection. It would be important to know who is on the CC, their religious affiliations, and if there are recorded minutes of the meeting, or notes jotted down resulting from deliberations during this selection process. It would be valuable to know the explanation for rejecting the AAA’s play. This material would be similar to that of legislative history used when cities or states create new laws in order to see whether they are endorsing one particular religion over another and if the decision process occurred with a secular purpose. We know the Mayor is Episcopalian and it would be helpful to know if the Mayor helped to select these skits or if pleasing the Mayor was on the mind of the CC when they did this selection process. In Welsh v. US, conscientious objectors were entitled to object to the war on those grounds without declaring a belief in a supreme being. Here, the AAA is not a religious organization and may be entitled to similar protection under the EST CL. Discrimination based on the absence of religiosity is unconstitutional. The policy behind this notion is equal treatment.

AAA FEX Violation: Furthermore, the AAA would likely have a FEX violation claim here against CC and San Roberto for turning down their ability to participate in the WHP, while the other religious plays were allowed to be performed. In Hialeah, a city ordinance the directly excluded Santeria Church members from performing animal sacrifices violated FEX. Here, because the CC directly chose to exclude AAA’s participation in WHP, it might fall under a FEX violation. In McDaniel v. Paty a statute that purposefully excluded ministers from serving as legislatures was also in violation of FEX. Because here, AAA was purposefully excluded from performing a skit in WHP, it is likely a court will side with AAA. Here it would also be helpful to know the reason for AAA’s rejection as well as records of the minutes from deliberations in order to examine, what would be similar to legislative history, in order to discover CC’s intent in rejecting AAA.

EST/FEX Defense for selection of plays, rejection of AAA not as strong: The CC can argue they viewed religious content more carefully in order to avoid EST issues in terms of allowing offensive skits and plays. It would be useful to know whether the AAA’s skit was humorous in an offensive and sarcastic way because this would help CC’s defense. Maybe the humorous play by the AAA was offensive or had negative implications regarding religion. Furthermore, the CC can suggest that the selection they chose more accurately reflected the city population. However, this might be difficult to defend looking at Welsh. In Welsh conscientious objectors who do not acknowledge a supreme being still deserve EST protection. Here, the AAA, despite its lack of religious affiliation, will likely prevail because the court cannot prefer the religious over the irreligious in terms of both FEX and EST claims.

AF EST Coercion Violation: BATHS performance of excplicitly religious Catholic songs, which AF objected to singing, but was told to either perform the whole program or not participate at all by Father Jeremy (FJ), is likely an EST coercion violation. Similar to cases such as Engle v. Vitale, in which compelling children to pray in school was held unconstitutional, a child having to sing religious songs, who asks not to, would likely have a viable EST claim. Furthermore, in Lee v. Weisman, the Court struck down a rabbi speaking during a middle school graduation. In Lee, the Court mentioned that for the school to claim that children should not attend their graduation at all if they object to the rabbi speaking is similar to the facts here, where AF was told to not participate in the concert at all. In Lee, the Court described Coercion for children as: public pressure, peer pressure, standing as a group, and maintaining respectful silence. Similarly here, for AF to have to perform religiously Christian songs while standing on stage in front of her family, peers, townspeople, and strangers, this would likely qualify as coercion under the Court’s analysis in Lee. The state may not place children in this position.

AF FEX Claim/Defense: AF could also raise a FEX claim because of her inability to participate in WHP unless she sang religious songs she did not believe in. This puts AF in a position where she would need to choose between an adherence to her faith and the ability to participate in the WHP. It would be difficult for CC or San Roberto to claim a compelling interest for AF not to be accommodated. Reasons for not accommodating AF could include: the efficiency of the program or fairness to other students who have to perform the songs, but these do not seem compelling enough and probably would not appear compelling enough to a court, especially under Yoder, to prevent AF from having an exception to singing the Christian songs. However, because the facts here more closely resemble the coercion cases under EST, a court would be more likely to take AF’s EST violation more seriously.

AF EST Coercion Defense: CC, BATHS, or San Robert could try to put the blame on FJ for AF’s coercion EST violation. The best defenses to a coercion claim like this would be to argue the situation is like Marsh v. Chambers, however the Court distinguishes this case from the cases involving children and coercion because the state has a greater interest in protecting children. Although adults can freely excuse themselves during legislative prayer, children are more vulnerable. Furthermore, this coercion claim could be defended on the grounds that the explicitly religious songs were reflective of San Roberto’s heritage and the argument could be based on the songs being the fabric of San Roberto’s society. Like the dissent argues in Engel, children praying in school provides children to share in the Nation’s spiritual heritage. This argument can also be made here because San Roberto was founded on religious principles. Additionally, because FJ is assisting the BATHS choir for free, it will help eliminate a hidden monetary agenda issue and will assist in defending the EST coercion claim.

AF FEX Defense: CC, BATHS, San Roberto, or FJ could argue that because AF does not need to perform in the pageant as an element of her religion, that it is not necessary to create a FEX accommodation for her. This argument is used several times, for instance, the court eliminated the FEX claim in v. The state of Georgia because bringing guns to church was not a necessary aspect of the Plaintiff’s religion. Here, AF might be in a similar situation because it is not required by her religion to perform in WHP. This is likely the best argument in defense of AF’s FEX claim. Arguments from US v. Lee apply in this FEX defense as well. An Amish farmer who did not believe in taxes still had to pay into the GOV system. Similarly, here CC could assert that running a smooth musical program in WHP may justify a limitation on religious liberty. This argument is weaker, but CC could still raise it. AF will likely win on these claims because courts are more likely to protect children’s interests.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download