SHOW NOTES FOR EP #18: MINI SERIES PART 3 FIRST AMENDMENT DEEP DIVE

INTRODUCTION

Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try and teach you things in an hour. My name is Ashley, aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney-client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company or other individuals. Ron is a licensed practicing attorney in the state of California.

Itinerary

  • Our Weeks
  • Questions from the audience
  • Topic of the week – 1st Amendment
    • Updates on the Supreme Court rulings
      1. Cheerleader case
    • What does 1st Amendment actually say: 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
    • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
    •  
    • Establishment Clause – Congress shall make no law respecting an establishment of religion
    •              Why was this clause necessary?          
    •              Colonial History of Religion
    • a.         Establishment of religious blocs backed by government
    • Puritans – New England
    • Church of England – South
    • Quakers and Amish – Pennsylvania
    • Catholics – Maryland
    •  
    • Numerous colonies had official church taxes that everyone had to pay, and some had laws compelling attendance at church.  Clergy members were selected by governmental authorities.
    •  
    • England’s king was also head of its church and was a monarchy and a theocracy.
    •  
    •              Constitutional Convention
    •                              The founding fathers had widespread agreement that there be no national church.
    •  
    •              Post – Constitutional History
    •                              All states had abandoned state established churches by 1833.
    •                              In the 1940s the Supreme Court ruled that the Establishment Clause applied not just to Congress but also the individual states due to the 14th amendment.
    •  
    •                                              14th Amend – All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
    •  
    •              The Four Types of Establishment Clause cases:
    •  
    • 1.       Aid to Religious Institutions
    • a. The contention:
    •      (1) that the government must be neutral between religious and non-religious institutions that provide education or other social services; or
    •      (2) that no taxpayer funds should be given to religious institutions if they might be used to communicate religious doctrine.
    • This has swung between the two positions over the years. Currently, the Court has upheld programs that give aid to educational or social programs on a neutral basis.
    •  
    •  
    • 2.       Government Sponsored Prayer
    • a.        In public school settings, the court has been consistent in denying statutes authorizing staff to lead in prayer or bible reading.  In other settings it has allowed legislative prayers – specifically because it was stepped in history, or at town meetings where prayers from all faiths would be accepted.
    •  
    • 3.       Accommodation of Religion
    •  
    • Hundreds of federal, state, and local laws exempt or accommodate religious believers or institutions from otherwise neutral, generally-applicable laws for whom compliance would conflict with religiously motivated conduct. Examples include military draft exemptions, kosher or halal meals for prisoners, medical neglect exemptions for parents who do not believe in medical treatment for their ill children, exemptions from some anti-discrimination laws for religious entities, military headgear requirements, and exemptions for the sacramental use of certain drugs. The Supreme Court has addressed very few of these exemptions
    •  
    •  
    • Two federal laws, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), provide broad-based statutory accommodations for religious practice when it conflicts with federal and certain state and local laws.
    •  
    •  
    • 4.       Government sponsored religious symbols
    •                                              The cases involving governmental displays of religious symbols—such as Ten Commandment displays in public school classrooms, courthouses, or public parks; nativity scenes in courthouses and shopping districts; or crosses on public land—have generated much debate. The most prominent approach in more recent cases is called the “endorsement test”; it asks whether a reasonable observer acquainted with the full context would regard the display as the government endorsing religion and, therefore, sending a message of disenfranchisement to other believers and non-believers.
    •  
    •                              Separation of church and state
    •              The phrase does not appear in the Constitution                        
    •              The Court has declined to take “a rigid, absolutist view” of the separation of church and state.
    •              In Lynch v. Donnelly (1984), the Court allowed display of a nativity scene surrounded by other holiday decorations in the heart of a shopping district, stating that it “engenders a friendly community spirit of goodwill in keeping with the season.”
    •              But in County of Allegheny v. American Civil Liberties Union (1989), a different majority of Justices held that the display of a nativity scene by itself at the top of the grand stairway in a courthouse violated the Establishment Clause because it was “indisputably religious—indeed sectarian.”
    •              In McCreary County v. American Civil Liberties Union (2005), the Court held that a prominent display of the Ten Commandments at the county courthouse, which was preceded by an official’s description of the Ten Commandments as the “embodiment of ethics in Christ,” was a religious display that was unconstitutional. The same day, it upheld a Ten Commandments monument, which was donated by a secular organization dedicated to reducing juvenile delinquency and surrounded by other monuments on the spacious statehouse grounds. Van Orden v. Perry (2005)

CLOSING

Thank you so much for listening to Learning the Law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted on twitch at twitch.tv/phoenixnymphy use the hashtag #learningthelaw on tiktok to follow more there. You can find Ron on twitter at Necrokijo and Ashley on most social media platforms at PhoenixNymphy. If you have any questions please tweet, comment, or email at twolazydogsmedia@gmail.com. This has been a Two Lazy Dogs production.

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