Religion and the Constitution

Final Examination

Professor Harpaz

December 10, 1997

Question I

(Suggested time: 60 minutes) (40 out of 120 total exam points)

Mark and Diane Anderson live on and own a 151 acre ranch in Kansas. The Kansas Department of Transportation (KDOT) is engaged in a project to improve a portion of U.S. Highway 24, which passes along the edge of the Anderson property. The project design calls for a wider median which will accommodate periodic turn-around areas large enough to ensure the safety of vehicles passing through or turning around in those areas. This design requires the acquisition of some adjacent private property from 20 property owners. Included in the private land to be acquired by the KDOT through its power of eminent domain is a 4-acre parcel of the Anderson property.

The ashes of the Andersons' stillborn baby, Qatlin Soux Anderson, are buried on this site, having been placed there in 1993, seven months after the stillbirth. A large red quartzite boulder serves as a headstone for the grave. The Andersons placed a 3-foot tall wooden cross at the grave sometime after the burial. If the KDOT highway improvement project takes the land containing Qatlin's gravesite, the grave will be moved to another location designated by the Andersons. According to the Andersons, this disturbance and the loss of the existing gravesite will interfere with their religion.

Diane Anderson is one-thirty-second Delaware Indian. She believes in and practices many tenets of American Indian spirituality which includes beliefs in God as creator, the sanctity of all life, life after death, and the sanctity of gravestones. Diane Anderson also believes in and practices many tenets of Quakerism and Christianity. These beliefs include baptism by the Holy Spirit rather than by water, peaceable resistance on matters of disagreement, an absence of ritual in worship, and a direct relationship with God by an individual without the need for clergy.

Marc Anderson believes in and practices many tenets of Christianity which include observance of a sabbath, the Ten Commandments, God as creator and supreme being, and the existence of sacred places. Mark Anderson also believes in and practices many tenets of American Indian spirituality which include reverence for all things created by God and harmony with other life forms on earth.

The area immediately surrounding the red boulder, including the gravesite, is a place which holds special meaning for the Andersons. Diane Anderson has gone to that area to pray since she was 7 years old. The area was also a place of prayer for Marc Anderson prior to his marriage to Diane. The Andersons practice their religious beliefs by visiting the area to be near the spirit of their deceased child and to worship and pray. The Andersons plan to be buried alongside the grave of their child. The Andersons also acknowledge that they also pray, worship and feel a closeness with God at places other than the area around the red boulder.

The Andersons have filed suit against the KDOT seeking to stop the Department from acquiring their land on the ground that such an acquisition would violate their rights under the Free Exercise Clause of the First Amendment. The KDOT, in defense of its action, argues that the acquisition is designed to assure public safety and convenience in the use of the highway. In addition, it argues that the Andersons religious beliefs would not be violated by moving the gravesite. The Department supports this argument by evidence that Christian beliefs and the tenets of American Indian spirituality both permit the moving of gravesites when necessary. Moreover, a basic tenet of Quakerism is that God is within individuals and one particular location is no more or less sacred than another.

You are a law clerk to the judge assigned to the case. The judge asks you to write a memorandum of law detailing the free exercise arguments available to the Andersons in support of their effort to prevent the KDOT from acquiring their land as well as the arguments available to the KDOT in arguing that the Free Exercise Clause does not prevent its acquisition of the Anderson property.

Question II

(Suggested time: 60 minutes) (40 out of 120 total exam points)

The City of Edmond, Oklahoma adopted an official seal in 1965 following a competition sponsored by the City Council and a local newspaper. The official seal is circular and contains four quadrants, of which one depicts a steam engine and oil derrick, one depicts the Old North Tower, one depicts a covered wagon with the number 1889, and one depicts a Latin cross. Each of the depictions has historic significance for the City of Edmond. For example, the Old North Tower is a well-known local landmark where the first higher education classes were conducted in the Oklahoma Territory and covered wagons were used in the Land Run of 1889, the year Edmond was first settled. The cross depicts the important role played by the Catholic Church in the founding of Edmond, Oklahoma.

Since 1965 the seal has been used extensively by the City, and appears on City limits signs, on City flags, on the uniforms of City police officers and firefighters, on official City vehicles, on stickers identifying City property, and in the City Council chambers. Additionally, the seal appears on each utility bill sent out by the City, as well as on official City stationary and the Utility and Sanitation Department's newsletter.

 Several non-Catholic residents of Edmond have objected to the inclusion of the cross on the city seal. Martin Abrams (A) and Sarah Berlin (B) are Jewish residents of Edmond. Karen Cook (C) is a member of the Edmond Unitarian Church and lives and works in Edmond. Abrams, Berlin and Cook have recently filed suit against the City of Edmond challenging the constitutionality of the seal under the Religion Clauses of the First Amendment to the Constitution.

You are a law clerk to the judge hearing the case. The judge asks you to write a memorandum of law detailing the constitutional arguments available to Abrams, Berlin and Cook as well as the constitutional arguments available to the City of Edmond in defending its use of the seal.

Question III

(Suggested time: 60 minutes (40 out of 120 total exam points)

Devil's Tower is a National Monument located on federal land in Wyoming. The Tower is part of the National Park System and is under the control of the National Park Service. Rock climbers consider Devil's Tower to be one of the world's best sites for crack climbing. Its 220 climbing routes draw climbers from around the world.

Devil's Tower is also a sacred site for 23 Native American Tribes for whom the Tower has religious significance, especially at the summer solstice, which occurs during the month of June. During that month, religious ceremonies are held on Devil's Tower. In recent years, these ceremonies have been disrupted by the more than 1000 climbers who scale the Tower during June.

In order to resolve the dispute between the Native American Tribes and the climbers, the Park Service has met with members of both groups to try to reach a compromise on the use of the monument. Last year, in an effort to resolve the dispute, the Park Service created a voluntary ban on climbing the Tower during June so that tribal groups could worship there in privacy and without disruptions. As a result of the voluntary ban, during June, 1997, 241 climbers scaled the tower, an 81 percent drop from the 1,294 who did so the previous June.

Under the terms of the voluntary ban, climbers who seek a permit to climb Devil's Tower during June are informed that the Park Service is sponsoring a voluntary ban on climbing Devil's Tower during June as a way to show respect for the religious beliefs of Northern Plains Indian tribes who have worshipped at the Tower for centuries and who participate in sundancing ceremonies during June. Climbers are also told that the voluntary ban will be replaced with a mandatory ban unless the number of persons who climb Devil's Tower during June drops significantly as a result of the voluntary ban.

Andy Petefish is a professional climbing guide who makes his living leading climbers up Devil's Tower. Warren Hudson is a recreational rock climber who has gone climbing in several National Parks, but has not climbed Devil's Tower. They are suing the National Park Service arguing that the voluntary ban violates the Establishment Clause of the First Amendment.

You are a law clerk to a judge assigned to the case. The judge asks you to write a memorandum of law detailing the constitutional arguments available to Andy Petefish and Warren Hudson in challenging the voluntary climbing ban as well as the constitutional arguments available to the National Park Service in defense of the ban.