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.