Concepts Flashcards
Establishment Clause
prevents Congress from establishing a state religion or passing laws that favor one religion over another.
Free Exercise Clause
protects citizens’ right to practice their religion as they choose, as long as it doesn’t conflict with a “compelling” governmental interest or “public morals”
Equal Protection Clause
It states that no state can deny equal protection of the law to any person within its jurisdiction.
Freedom of Conscience
Washington, Jefferson, Madison believed “freedom” was the natural condition of humanity, and government should not interfere with one’s conscience. Government intervention in the affairs of “men” was wrong.
Factions
Madison believes that all “factions” should have a public voice.
Positive dogmas
existence of God; hope for
the life to come; happiness of the just;
punishment for the wicked; the sanctity of law
Negative dogma
NTOLERANCE!
Laicite
“rule by non church people” Ideologies are Neutrality, Good Religion vs. Bad Religion, Freedom as Non-Interference, Freedom as Non-Domination, and
Secularism vs. Religious Expression
The Stasi Comission
a commission set up to reflect upon the application of the laïcité principle. Stasi Commission recommends a “ban on clothing and signs manifesting religion or
political affiliation from public schools” They Argued that “Muslim girls are being coerced by families to wear headscarves against their will, which amounts to
religious polarization and sexual discrimination.” The recommendation is not a question of liberty of conscience, but of the maintenance of public order.
Cuius regio, eius religio
whose realm, their religion
The Lemon Test
Applied in Lynch v. Donnelly by Justice Brennan.
1. The primary purpose is secular
2. Does not promote or prohibit religion
3. There is no excessive entanglement between church and state
The Sherbert Test
- Has the government burdened the individual’s Free Exercise of religion?
- If so, can the government provide a “compelling state interest?”
- If, did it apply the “least restrictive means” to achieving that end?
Madeline Murray O’Hare
the most hated woman because she wanted to remove “under God” and said that Christmas is an overly Christian
Ceremonial Deism
Legal term used in the United States to designate governmental religious references and practices deemed to be mere cultural rituals and not inherently religious because of long customary usage. Coined by Justice Brennan used to describe the pledge of allegiance and how we have chapels in hospitals
Old liberalism
set of ideals rooted in Christian theology and congenial to religious institutions. Ideals: Common belief in the pervasive and ineradicable nature of sin. (All are prone to abuse of power). Separation of church and state. Primacy of conscience (That faith, to be valid and acceptable to God, must be uncoerced). Christian thought has a fundamentally egalitarian and democratic spirit
New Liberalism
ideology that is hostile to or suspicious of religion. Ideals: Rousseau’s ideal of civil and religious intolerance. ceased to be about standing for limited government. third one is “neutrality” and “secularism”.
Class
social standing
Two Kingdom’s Theory
Only God can speak to inner conscience.
Government can only regulate outer
actions
Civil Religion
He believed that governments cannot obligate a person to believe its dogmas, but that those who fail to adopt them can be banished from the state on grounds of unsociability. He also believed that citizens who publicly acknowledge civil dogmas may be punished with death if they later behave as if they do not believe them. Rousseau believed that Christianity was counterproductive to civil government and could not be the basis for a legitimate or free society. He believed that “true” Christianity undermines people’s inherent freedom and drive to self-preservation by teaching them to be passive and self-effacing.
Idolatry and Tyranny
Claims that christianity preaches only servitude and dependence making it susceptible to tyranny. True christians are made to be slaves.
“God alone is the Lord of Conscience”
This is what Madison believes and is a part of the two kingdoms theory. Believes that no one can tell others what to do.
Intolerance
Rousseau’s belief of everyone’s religion needs to be tolerated. NO INTOLERANCE or else no one can live in peace.
Morill Act (1862)
banned bigamy in federal territories such as Utah and limited church and non-profit ownership in any territory of the United States to $50,000.
Mormons/LDS
Mormons argued that plural
marriages are biblical, Ten Commandments don’t prohibit them, and they have a “different
interpretation” of the New Testament. They wanted bigamy to be legal and were confident that they will win the case. After they lost, they stopped preaching polygamy and took it out.
Polygamy
Something that the mormons believed in
Letter to the Danbury Baptists
Jefferson replies saying, “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” But this never happens and Burger uses this to state that total separation of church and state is impossible.
Professor Lieber
An anti polygamist saying that “polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot exist long in monogamy” Waite used his ideals in Reynolds v. US
Slippery Slope
believes it will lead to a chain reaction resulting in an undesirable end or ends. This is used in Reynolds with Justice Waites saying, “If polygamy is licensed, what’s next? Human sacrifice?” Also Stasi Commission because of if they allow headscarves, it would’ve invited other forms of oppressions
Stare Decisis
“Let the decision stand” The court should take into consideration the previous courts but is not obligated to do so.
Amicus Curaie
“friend of the court” a person or organization that is not a party to a legal case but can help the court by providing information, expertise, or insight that is relevant to the case. Rex Lee was this in Lynch v. Donnelly stating that religion is a part of our country’s history and Justice Burger agreed with him.
Sodomy
Bowers v. Hardwick where it upheld Georgia’s anti-sodomy law
Seventh Day Adventist
Sherbert v. Verner where a woman who celebrated the Sabbath on Saturday refused to go to work on that day.
Neutral Law of General Applicability
Scalia believes thatt using a balancing test like Sherbert creates a private right to ignore neutral, generally applicable laws. This would open the “constitutional floodgates.” He believes that rational basis should be used and not a balancing test.
Substantive neutrality
Looks at the impact of the action and considers
disparities in a non-neutral world. Sherbert is an example of substantive neutrality. It takes notice of the law’s adverse impact on Seventh Day
Adventists
Formal neutrality
Everyone treated exactly the same. Reynolds is an example of formal neutrality. It is a “generally applicable law” that takes no notice of the law’s disproportionate impact on Mormons.
RFRA (1993)
Religious Freedom Restoration Act- used to go against Scalia’s belief and restore the requirement of “compelling state interest”. It applied to neutral law of general applicability that it should go under strict scrutiny.
US Conference of Catholic Bishops
In 1993, the USCCB (United States Conference of Catholic Bishops) initially thought the RFRA was too simple to address religious liberty. The USCCB also expressed concerns that the bill’s provisions could prevent the Catholic church from following Christian doctrine on issues like sheltering the homeless and feeding the hungry.
Rhetorical Dance
USCCB: religious freedom is a fundamental right
Smith: ok but you have to give some deference to government power to make laws
USCCB: But exceptions for Free Exercise
Smith: You’re right we need a balancing test.
USCCB: The right to religious freedom is basic and absolute.
This results in winners and losers, no balance. RFRA helped christians to exempt themselves from laws to protect reproductive health and LGBTQ+ civil rights.
Common Nucleus of operative fact
a legal term that was established by the US Supreme Court case “United Mine Workers of America v. Gibbs” (1966), which essentially means that a federal court can hear related state law claims alongside a federal claim if both claims arise from the same set of core facts, allowing for a single trial instead of separate proceedings in different courts; this concept is also known as “pendent jurisdiction” or “supplemental jurisdiction” today
