In the spirit of reopening the areas discussion, there are two concepts I’ve brought up involving 1st amendment issues by limiting with the freedom of religion clauses. The first is a simple restrictive “free exercise” area, the second is an education theme that would incorporate establishment clause. Below are some thoughts on the scope of such ideas as size has become an issue. This is rough as we had an internet snafu last night.


In the area of 1st amendment law related to religion, I agree with Tim and Jim Lyle’s analysis that “freedom of religion” as a whole is too unwieldy for an area. Establishment cases alone would feed into the TC’s concerns about the limits of the number of cases to research and predictable ground. (Tim cites around 70 cases on face as potentially However; I feel that a limitation of cases related to religious exercise may be viable. Obviously, Boerne would be one of the primary cases, and there is support for providing that option to the debate community. Such a topic could access Oregon v. Smith (and Native American rights, drug law, etc.) and the RFRA cases. The 1947 New Jersey Bus Case decision nationalizes both clauses of 1st amendment religious protection (Black’s articulation.)
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One possible concern with a sub-section of the ‘Freedom of Religion’ is that these sub-areas overlap, as previously noted. With religious exercise, Tim’s concern about the lack of clear distinction in subcategories of religious freedom would actually facilitate neg research in the category of establishment clause, which creates a consistent neg strat/ research option.

On the most basic level, establishment is what balances the expansion of free exercise. (Chp 4, p.459), 1st amendment Law, ed. Sullivan and Gunther.
“The two clauses have given rise to separate bodies of case law. But this should not obscure the fact that the two bodies of law are interrelated. They protect overlapping values, but they often exert conflicting pressures. . . claims raise one of the tensions arising from the coexistence of the two religion clauses: If a state must grant an exemption because of the “free exercise” command, is it thereby granting a preference, to religion in violation of the “establishment” provision?”

Although in theory both clauses serve to support an individual freedom through different mechanisms, the tension is fairly consistent: (p.465)
“Some commentators have suggested that the two religion clauses can be harmonized by recognizing that “establishment” and “free exercise” serve a single value – protecting the individual’s freedom of religious belief and practices, with “free exercise” barring the curbing of that freedom through penalties and “establishment” barring inhibitions on individual choice that arise from governmental aid to religion. Yet viewing the clauses as protecting that single goal does not eliminate the potential tensions. If either the anti-penalties or anti-rewards theme is taken as an absolute, the competing theme will be unduly denigrated: if all penalties are barred, undue benefit to religion may result; if all benefits are barred, undue burdens on religion may be the consequence. Identifying a single “freedom” value, then does not eliminate the need for accommodation.”

Additionally, the area of free exercise is simply much smaller (and more recent) and has fairly obvious cases with implications that would supercede previous precedents. (Chp 4, p.459)

”The Court has held free exercise to require some religious exemptions from generally applicable laws, but has narrowed the scope of such compelled exemptions in recent cases. Congress sought to reverse that trend in by providing for statutory religious claims under the Religious Freedom Restoration Act of 1993.”

And, not only would this area have predictable limits, it has a predictable standard of advantage comparison. “Such laws are rare in contemporary society, the court has subjected them to the strictest scrutiny.” Also, as there would be a competing political interest in this scenario, there are potential election and politics links beyond the case debate. (Overruling Oregon v Smith would probably piss of some conservative groups, effect elections, , etc. . .)

Religious exercise would allow for impact debate related to issues of culture and prejudice post 2001 (as in the Freeman v. Florida circuit case), such as Boerne v. Florida. This would incorporate Oregon v. Smith and RFRA/RLUIPA related cases

One interesting issue of topicality, and area expansion, is the definition of “religion” itself. How is it “distinguished from secular moral or philosophical beliefs?” The question can also be extrapolated to the distinction between religious and secular non-governmental association? Where is the brightline? This has come up in draft exemption cases (US v. Seeger, 380US 163 – 1965, Welsh v. US 398 US 333 – 1970, Gillette v. US, 401 US 437 – 1971, etc.), and the term tends to be rather broadly defined by the court. However, in Gillette, Douglas’ dissent argues that many of these could be perceived more as thought/conscience issues, seen separately in the 1st amendment. US v Ballard, 322 US 78 (1944) indicates that the Courts primary motivation in definition is an issue of fraudulent use of the exemptions to establishment created by free exercise. I think it provides contextual literature for directing the limits of the topic while still providing aff flex as potentially overruling one of the previous precedents that creates such a distinction.

Free exercise, while overlapping in some ways with free speech, and being a possible subset of that area of the first amendment, is still unique from speech in that it is understood to include “not just belief or expression; it often implies conduct or action.” (p.467). In general, “free exercises cases . . . look first at the question whether government may deliberately disadvantage religion or a particular religion, and second at whether religious practitioners are entitled to exemptions from generally applicable laws that conflict with dictates of their faith.” The tension between allowing action for beliefs would probably be the theoretical heart of the issue (but its debate .. . so . . .). The other fundamental issue would be the courts concept of strict scrutiny. I also think this may be an interesting way of accessing some of Tim’s suggestions on the Nat Sec/1st amendment case area, as some cases have involved national security as the concern that took precedence. Goldman v. Weinberger, in which the US Court deferred to the military about yarmulke in the military, and other issues, would be an obvious choice, as would Hamdy.


The limit to this area as worded is the literature, as there are a limited number of cases, and historically the Court has ruled in the favor of expression (Kennedy seemed to like these a lot). Therefore, cases where expression has not been upheld usually imply a violation of establishment, or a superceding value/strict scrutiny. Typically, expression cases are seeking exemptions from a law, not necessarily to strike the law itself. In this regard, it limits the post case applications of new precedent, as it would not be removing laws in most cases that would possibly be reconstructed, but instead would create individual exemptions from laws. In Reynolds v US, 98 US 145 (1878), Chief Justice Waite writes that this is tempered by the view that there must be a limitation on SOME exemptions (human sacrifice, funeral immolation), “to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstance.”


Other potential case:
Braunfeld v. Brown, 366 US 599 (1961) – Court upheld Sunday closing laws not impediment to practice of Orthodox Jews, just makes more expensive (not as profitable).
[Warren plurality w/Black, Clark, Whittaker.]
Frankfurter and Harlan reject free exercise as premise in separate decision.
Brennan’s dissent based on putting “an individual to choice between his business and his religion.” The state’s interest was the “mere convenience of everyone having the same day of rest.” Stewart and Douglas also dissented.


Potential Resolutions:

The USSC should overrule one or more of its previous decisions on 1st Amendment freedom of religion to increase free exercise.


The USSC should overrule one of its previous decisions concerning the 1st amendment in the area of free exercise.


Other wording suggestions . . .
Overrule a previous limit on freedom of exercise
Rule to uphold first amendment case on grounds of freedom of exercise.





ESTABLISHMENT

Establishment clause may have more viability in relation to a school or education themed area, and could access issues related to vouchers and “intelligent design”. Therefore, an area topic focused around education could safely include this with school desegregation and affirmative action, and perhaps freedom of speech (which may overlap sufficiently with establishment issues.)

A brief history of education/establishment related cases from
http://caselaw.lp.findlaw.com/data/constitution/amendment01/03.html#f109,

Encouragement of Religion in Public Schools: Released time

Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 209-10 (1948).
cases involved ''released time'' programs, the establishing of a period during which pupils in public schools were to be allowed, upon parental request, to receive religious instruction. In the first, the religious classes were conducted during regular school hours in the school building by outside teachers furnished by a religious council representing the various faiths, subject to the approval or supervision of the superintendent of schools. Attendance reports were kept and reported to the school authorities in the same way as for other classes, and pupils not attending the religious instruction classes were required to continue their regular studies. ''The operation of the State's compulsory education system thus assists and is integrated with the program of religious instruction carried on by separate religious sects. Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment . . . .''107 The case was also noteworthy because of the Court's express rejection of the contention ''that historically the First Amendment was intended to forbid only government preference of one religion over another, not an impartial governmental assistance of all religions.''108

Zorach v. Clauson, 343 U.S. 306 (1952).
Court upheld it was okay to release students to leave school to go to a program in a religious facility.

The Court found the differences between this program and the program struck down in McCollum to be constitutionally significant. Unlike McCollum, where ''the classrooms were used for religious instruction and force of the public school was used to promote that instruction,'' religious instruction was conducted off school premises and ''the public schools do no more than accommodate their schedules.''110 We are a religious people whose institutions presuppose a Supreme Being,'' Justice Douglas wrote for the Court. ''When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs.

Some guidance may be provided by Grand Rapids School District v. Ball, 473 U.S. 373 (1985), and Aguilar v. Felton, 473 U.S. 402 (1985), striking down programs using public school teachers for instruction of parochial school students in parochial school facilities, but these were 5-4 decisions and the Court's membership has since changed.

1985: In Wallace v. Jaffree,118 the Court held invalid an Alabama statute authorizing a 1-minute period of silence in all public schools ''for meditation or prayer.'' Because the only evidence in the record indicated that the words ''or prayer'' had been added to the existing statute by amendment for the sole purpose of returning voluntary prayer to the public schools, the Court found that the first prong of the Lemon test had been violated, i.e. that the statute was invalid as being entirely motivated by a purpose of advancing religion. The Court characterized the legislative intent to return prayer to the public schools as ''quite different from merely protecting every student's right to engage in voluntary prayer during an appropriate moment of silence during the schoolday,''119 and both Justices Powell and O'Connor in concurring opinions suggested that other state statutes authorizing moments of silence might pass constitutional muster.120
Justice O'Connor's concurring opinion is notable for its effort to synthesize and refine the Court's Establishment and Free Exercise tests (see also the Justice's concurring opinion in Lynch v. Donnelly), and Justice Rehnquist's dissent for its effort to redirect Establishment Clause analysis by abandoning the tripartite test, discarding any requirement that government be neutral between religion and ''irreligion,'' and confining the scope to a prohibition on establishing a national church or otherwise favoring one religious group over another.

1992:The school prayer decisions served as precedent for the Court's holding in Lee v. Weisman121 that a school-sponsored invocation at a high school commencement violated the Establishment Clause. The Court rebuffed a request to reexamine the Lemon test, finding ''[t]he government involvement with religious activity in this case [to be] pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school.'' State officials not only determined that an invocation and benediction should be given, but also selected the religious participant and provided him with guidelines for the content of nonsectarian prayers. The Court, in an opinion by Justice Kennedy, viewed this state participation as coercive in the elementary and secondary school setting.122 The state ''in effect required participation in a religious exercise,'' since the option of not attending ''one of life's most significant occasions'' was no real choice. ''At a minimum,'' the Court concluded, the Establishment Clause ''guarantees that government may not coerce anyone to support or participate in religion or its exercise.''
1987: based on the term “creation”
Similarly invalidated as having the improper purpose of advancing religion was a Louisiana statute mandating balanced treatment of ''creation-science'' and ''evolution-science'' in the public schools. ''The preeminent purpose of the Louisiana legislature,'' the Court found in Edwards v. Aguillard, ''was clearly to advance the religious viewpoint that a supernatural being created humankind.''125 The Court viewed as a ''sham'' the stated purpose of protecting academic freedom, and concluded instead that the legislature's purpose was to narrow the science curriculum in order to discredit evolution ''by counterbalancing its teaching at every turn with the teaching of creation science.''126





ESTABLISHMENT AREAS LIMITED OUT FROM EDUCATION THEME

Access of Religious Groups to Public Property - not banned to religious groUps if secular also have access.
Governmental Encouragement of Religion in Public Schools: Curriculum Restriction.—

Governmental Encouragement of Religion in Public Schools: Prayers and Bible Reading

Financial Assistance to Church-Related Institutions
Upon that determination and upon the guarantees built into any program to assure that public aid is used exclusively for secular, neutral, and nonideological purposes rests the validity of public assistance.
The greater the necessity of policing the entity's use of public funds to ensure secular effect, the greater the danger of impermissible entanglement of government with religious matters. Any scheme that requires detailed and continuing oversight of the schools and that requires the entity to report to and justify itself to public authority has the potential for impermissible entanglement. 58 However, where the nature of the assistance is such that furthering of the religious mission is unlikely and the public oversight is concomitantly less intrusive, a review may be sustained. 59
Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 659 -61 (1980)