Final Examination

Professor Harpaz

Religion and the Constitution

December 15, 1995

Question I

(Suggested time: 60 minutes) (1/3 of total exam points)

            Robert and Susan Munson are the parents of a 15 year old son who attends a public high school. Several months ago, Mr. and Mrs. Munson attended a Parent/Teacher Association meeting that took place in the high school auditorium. While at the meeting, they noticed the art work on the walls of the auditorium. There were four paintings hung on the walls. The largest of the four was ten feet by twelve feet and portrayed a man nailed to a wooden cross. The man is bleeding from the left side of his chest. On his head is a crown of thorns. Other figures in the painting include a man tossing a net into the water, a woman mourning and a man carrying two engraved stone tablets. The tablets have the Roman numerals I through X inscribed on them. A plaque attached to the painting lists the name of the painting as "The Crucifixion of Jesus Christ" and the artist as "Craig Martin, Class of 1965." The other 3 paintings are considerably smaller and have nonreligious subjects. They include a portrait of George Washington, an oil painting of a group of students participating in a high school assembly and a painting of a horse race done in the style of the impressionists.

            After returning home, the Munsons, who are not Christians, asked their son about the painting of the Crucifixion. He told them that at least once a week he attends a mandatory assembly in the high auditorium where he has no choice but to see the painting.

            After their discussion with their son, the Munsons contacted the high school principal and asked him to remove the painting from the auditorium. The principal informed them that the painting was part of a program initiated by a former art teacher at the high school in the 1960's. The purpose of the program was to provide seniors planning careers in art with the opportunity to create original works of art without any supervision or restrictions and to have their art work hung in a place of prominence in the high school. The four paintings currently in the auditorium were all painted by students at the school during the 1960's when the program existed. The program was abandoned when the art teacher who initiated the program left his job at the high school.

            After explaining the origins of the painting of the Crucifixion, the principal refused to remove it from the auditorium. The Munsons appealed the principal's decision to the School Board and the School Board refused to overturn the principal's decision.

            The Munsons have now filed suit against the high school principal and the School Board on behalf of themselves and their son claiming that the display of the painting, "The Crucifixion of Jesus Christ," in the high school auditorium violates the First Amendment's Establishment Clause. The Munsons seek to permanently enjoin the defendants from displaying the painting in the high school auditorium.

            You are a law clerk to the judge assigned to the case. The judge asks you to write a memorandum of law describing the Establishment Clause arguments that are available to the Munsons in arguing that the painting must be removed from the auditorium as well as the arguments that are available to the principal and the School Board in arguing that the presence of the painting does not violate the Establishment Clause.

Question II

(Suggested time: 60 minutes) (1/3 of total exam points)

            The Governor Thomas E. Dewey Thruway is part of the New York State Highway System. The New York State Thruway Authority operates the highway which passes through the Catskill Mountains as it crosses the state. The Catskills are a popular vacation area for many Orthodox Jewish families from New York City. Many such families own or rent summer cottages in the area. Some families use their cottages for long weekends. In other families, the wife and children live in the cottage for the entire summer while the husband continues to work in New York City during the week. In order to spend long weekends with his family, the husband commutes to the cottage after leaving work on Thursday evenings, arriving after sundown.

            Several years ago an official of the Thruway Authority sent a memo to the State Highway Police about a very dangerous situation that had developed at a highway toll plaza close to the Catskills. On many evenings, particularly on Thursdays during the summer, Orthodox Jewish men, after passing through the toll plaza shortly before sundown, would pull their cars over to the shoulder of the road to join other Orthodox Jewish men in prayer. The men faced east and recited "Mincha," a prayer that must be recited each day between midday and sunset by devout Jews. As they prayed, some of their children played at the rim of the thruway and the traffic slowed. "It was a situation meant for disaster," said James Atkins, a spokesman for the State Police.

            In response to the problem, state officials set out to find a safe place for the worshippers away from the flow of traffic. They found available space at a highway rest area near the Catskills that otherwise contained a gas station, food service and a Tourist Information Booth. The state put up a sign next to an unoccupied piece of state-owned land at the rest area that said "Mincha Area." Last summer, on a typical Thursday evening about 200 Orthodox Jewish men used the area for prayer.

            Recently, Ralph Burger filed a lawsuit against the State of New York challenging the constitutionality of the "Mincha Area" as violative of the Establishment Clause of the United States Constitution. Mr. Burger is a non-Jewish resident of New York City who occasionally spends weekends visiting friends in the Catskills. One weekend last summer he stopped at the highway rest area to buy gasoline and as he drove out of the rest area he saw a group of Orthodox men reciting Mincha at the "Mincha Area." He was distressed at what he saw and since that time he has not stopped at that same rest area, choosing to buy gasoline at a different rest area.

            You are a law clerk to the judge assigned to the case. The judge has asked you to write a memorandum of law describing the Establishment Clause arguments that can be made by Ralph Burger in challenging the constitutionality of the state-created "Mincha Area" as well as the Establishment Clause arguments that can be made by the State of New York in defense of its creation of the "Mincha Area."

Question III

(Suggested time: 60 minutes) (1/3 of total exam points)

            Anne Galter sought a Nebraska driver's license, but refused to have her photograph taken and affixed to the license as required by Nebraska law. For this reason, the Nebraska Department of Motor Vehicles refused Ms. Galter's application for a driver's license.


            Galter's refusal to have her photograph taken is based on a literal interpretation of the Second Commandment which states: "Thou shalt not make unto thee any graven image or likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth." Galter believes the Second Commandment forbids her from possessing any image having a likeness of anything in creation. She possesses no photographs of her wedding or family and does not own a television. When she purchases foodstuffs displaying pictures on their labels, she either removes the label or obliterates the picture with a black marking pen.

            Galter considers herself a Christian and attends a Pentecostal church. According to Galter, Pentecostals do not share her belief that the Second Commandment forbids the making of photographs or images. Rather, her belief stems principally from her own study of the Bible.

            Because Ms. Galter needs to drive a car in order to commute to her job, she asked the Nebraska Department of Motor Vehicles to exempt her from the requirement that her driver's license contain her photograph. The Department turned down her request, citing the state's interest in providing police officials with an accurate and instantaneous means of identifying a motorist. At least 47 states require photographs of the licensee to appear on driver's licenses for this same reason. The Nebraska Department of Motor Vehicles conceded that under Nebraska law photographs are not required on learner's permits, temporary licenses for Nebraska residents who are outside Nebraska when their licenses expire, and farm machinery licenses for motorized farm machinery that will be driven on private farmland, but not on state and local roads. The Department argued that permitting these exemptions for temporary and nonroad licenses does not undermine the state's interest in the identification of motorists. The state also argued that it has no procedure for considering individual applications for exemptions from the photograph requirement and that creating such a procedure will impose an unreasonable burden on the state.

            After her request for an exemption from the photograph requirement was turned down, Ms. Galter filed suit against the Department contending that her religious convictions prevented her from being photographed and that the refusal by the Department of Motor Vehicles to exempt her from the photograph requirement violated her First Amendment right to the free exercise of religion and her rights under the Religious Freedom Restoration Act.

            You are a law clerk to the judge assigned to the case. The judge asks you to write a memorandum of law describing the constitutional and statutory arguments that Ms. Galter can make in arguing that the Department of Motor Vehicles violated her rights under the Free Exercise Clause and the Religious Freedom Restoration Act as well as the arguments the Department of Motor Vehicles will make in defense of its refusal to issue Ms. Galter a driver's license.