Classroom Materials:

This page contains materials prepared to be shared during class. The materials are arranged with the newest materials on the top and the oldest materials on the bottom. The materials will be posted on this page shortly before each class and remain available throughout the semester.

Judicial Writing Manual, 2nd Edition (Federal Judicial Center)

RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT of 2000
(RLUIPA)

42 U.S.C. § 2000cc.  Protection of land use as religious exercise

(a) Substantial burdens.
  
(1) General rule. No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--
      (A) is in furtherance of a compelling governmental interest; and
      (B) is the least restrictive means of furthering that compelling governmental interest.
   (2) Scope of application. This subsection applies in any case in which--
      (A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;
      (B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or
      (C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.

(b) Discrimination and exclusion.
   (1) Equal terms. No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.
   (
2) Nondiscrimination. No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.
   (3) Exclusions and limits. No government shall impose or implement a land use regulation that--
     
(A) totally excludes religious assemblies from a jurisdiction; or
      (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.

§ 2000cc-1.  Protection of religious exercise of institutionalized persons

(a) General rule. No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 2 of the Civil Rights of Institutionalized Persons Act even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person--
   (1) is in furtherance of a compelling governmental interest; and
   (2) is the least restrictive means of furthering that compelling governmental interest.
(b) Scope of application. This section applies in any case in which--
   (1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
   (2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.

§ 2000cc-2.  Judicial relief
(a) Cause of action. A person may assert a violation of this Act as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. . . .
(b) Burden of persuasion. If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2 [42 U.S.C. § 2000cc], the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law. . .that is challenged by the claim substantially burdens the plaintiff's exercise of religion.
(c) . . . .


Clear as mud: navigating in-school employee expression in the wake of Kennedy v. Bremerton School District
by Kirsten B. White, Boston-based co-chair of Fox Rothschild LLP’s education law department published in Westlaw Today (Aug. 12, 2022)- https://foxrothschild.gjassets.com/content/uploads/2022/07/WLT_White.pdf

Colorado Anti-Discrimination Act
Colorado Rev Stat § 24-34-601 (2016):
(1) As used in this part 6, "place of public accommodation" means any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public; any place to eat, drink, sleep, or rest, or any combination thereof; any sporting or recreational area and facility; any public transportation facility; a barber shop, bathhouse, swimming pool, bath, steam or massage parlor, gymnasium, or other establishment conducted to serve the health, appearance, or physical condition of a person; a campsite or trailer camp; a dispensary, clinic, hospital, convalescent home, or other institution for the sick, ailing, aged, or infirm; a mortuary, undertaking parlor, or cemetery; an educational institution; or any public building, park, arena, theater, hall, auditorium, museum, library, exhibit, or public facility of any kind whether indoor or outdoor. "Place of public accommodation" shall not include a church, synagogue, mosque, or other place that is principally used for religious purposes.

(2) (a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual's patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.

(b) A claim brought pursuant to paragraph (a) of this subsection (2) that is based on disability is covered by the provisions of section 24-34-802.

(2.5) It is a discriminatory practice and unlawful for any person to discriminate against any individual or group because such person or group has opposed any practice made a discriminatory practice by this part 6 or because such person or group has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing conducted pursuant to this part 6.

(3) Notwithstanding any other provisions of this section, it is not a discriminatory practice for a person to restrict admission to a place of public accommodation to individuals of one sex if such restriction has a bona fide relationship to the goods, services, facilities, privileges, advantages, or accommodations of such place of public accommodation.   
   

RBG Was My Hero

    RBG was my hero, so smart and so strong
    So fearless in telling the other Justices they were wrong.

    She championed equality for women and men
    She stood up for principles over and over again.

    She fought till the end, battling her diagnosis
    Determined to keep going no matter the prognosis.

    She succumbed in the end, human at last
    But asked us to fight, no returning to the past.

    We’ll honor her memory, we’ll continue her fight
    We just won’t give in, even when it seems the darkest night.

    RBG was my hero, a tiny woman leaving big shoes to fill
    I’ll try to follow in her footsteps until the evil forces are still.


Time Line of Government Aid to Religious Education Cases Starting with Lemon v. Kurtzman


Bladensburg Cross (American Legion v. American Humanist Society)


Presentation at Supreme Court Conference on American Legion Case


Texas Ten Commandments Monument



Religious Symbols on Public Land (pictures of actual displays)



Endorsement Test


Holiday Displays (pick which ones would be constitutional)


Public Forum Doctrine Outline


Suppose a state enacts the following law:

Silent meditation. Each local or regional board of education shall provide an opportunity at the start of each school day for students and teachers to observe no more than one minute in silent meditation, personal thoughts or prayer. During such time, silence shall be maintained and no activities engaged in.

Is it constitutional?

Suppose at the beginning of the school day, students are asked to recite the following:

I promise that I will do my best to lead a good life.  I will work hard in school, I will honor my parents, I will be generous to those less fortunate than I.  I will respect my classmates, even if they are different than I am. I have the ability within myself to live up to these principles and I will try to the best of my ability to keep this promise.

Is this a prayer?  Is it an anti-prayer?  Is it hostile to religion?

Public Forum Doctrine Outline
 

The Lemon test:


A challenged government program is constitutional if it satisfies all three parts of a 3-part test:

(1) it must have a secular legislative purpose (that is not a sham); and
(2) a primary effect that neither advances nor inhibits religion; and
(3) it cannot create an excessive government entanglement with religion (with a religious entity).

(1) In applying the Lemon test, there must be a secular purpose, but the secular purpose does not have to be the only purpose or the primary purpose. It does, however, have to be an actual purpose rather than a sham. A sham purpose would be a fictitous purpose that the government has fabricated to avoid its action being invalidated on Establishment Clause grounds.

(2) The effect prong is the most difficult to apply. The government is unlikely to be viewed as advancing religion if it distributes a neutral benefit (such as free bus transportion or school lunches) broadly to a wide range of beneficiaries that include all schoolchildren (whether they attend public or private schools and whether the private schools are religious or nonreligous schools). Passive displays are unlikely to have the impermissible effect of advancing religion so long as they are not in a public school.

(3) Excessive entanglement involves the government working together with a religious entity and the extent of that interaction. Certain forms of interaction are not constitutionally problematic. For example, excessive entanglement does not exist where there is only limited administrative cooperation (filling out forms, occasional inspections, etc.) between the government and a religion or a religious entity like a parochial school. On the other hand, pervasive monitoring of the actions of a religious entity by the government would be excessive entanglement, particularly when the government must distinguish between the religious and secular activity of the religious entity. In addition, if the government delegates governmental power to a religious entity, the relationship will be viewed as creating excessive entanglement.

First Amendment:
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.


McCollum Parent's Request Card


Everson Quotation:


The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State." Reynolds v. United States, supra at 164.
 
We must consider the New Jersey statute in accordance with the foregoing limitations imposed by the First Amendment. But we must not strike that state statute down if it is within the State's constitutional power even though it approaches the verge of that power.


Chart of Range of Possible Church/State vs. Religious Freedom Interactions

United States Constitution Religion Provisions:

Art II, Section 1:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Article VI, Clause 3:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

First Amendment:
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.