November 7, 2008
I go with Evan to grab some food. We go to the big liquor store near NYU where he gets me two handles because they’re so cheap. I get one that’s cherry Georgi, which turns out to be disgusting.
I find out that Evan’s busy and doesn’t want to go to the bar party and we’re invited too. Derrick, who was Gianfranco’s friend that visited Prague, is having a shindig. I was invited through Facebook. I’m gonna be seeing lots of people that I haven’t seen in a while like Gianfranco.
I get there past 12:00, the thing starts at 11:00. There’s a lot of drifting around for me. I say Hi to a lot of people, but it’s mostly short convos and awkwardly floating around. Gianfranco eventually comes and I take a shot with him. Someone else buys me a shot and I buy two beers through the night. By the end of the night, I’m pretty shitfaced.
In the end, it’s really great seeing people again, but I don’t feel I established links well enough, so I’m not really optimistic that I might be seeing these people again or hanging out with them. It’s quite a hit to be seeing all the people from Prague.
I end up leaving by 2:20 and get KFC on the walk back. Hopefully tomorrow is fun.
November 17, 2008
It was a slow weekend since no one was around. Didn’t really do anything, though a lot of time on Stickam speaking to Nikki, who again I’ve been speaking to more than anyone else I know.
At least I’ve been reading about of a lot Constitutional Law stuff like the cases dealing with Guantanamo, free speech for class, and religion clauses for a paper.
I have an ALCU meeting, which is the second to last. I speak to some random people about the Politics classes and there’s just some food next time, that’s about it. Hopefully I’ll become better involved next semester.
I find out that I get into the NYU Law Shadowing program. I get to speak to a NYU Law (Top 5 law school in the country) student and attend one of his classes. It’s an amazing opportunity.
November 21, 2008
So it turns out that the first year Con. Law class that I get to go too is pretty cool. I spent hours before it reading Roe and Griswold. The professor is a great lecturer. Doesn’t stumble when speaking, prepared, and quick. I don’t know if that’s a good thing, but I like fast speakers.
The class actually turns out to be a lot like my Civil Liberties class. She gives a lecture on the thinking of the Court when deciding the case and allows people to give their opinions. From their opinions and how many people are taking notes/paying attention, it seems that I would really hold my own if I was in that class. Then again, I can’t really dig on them because they got into the school, something that I will not be doing…
Anyway speaking about that, I’ve had a great fire this semester of reading cases along with what my class asks for. Here’s some stuff that I’ve just spent hours and hours reading. And listening through podcasts.
Free Exercise Clause
Establishment Clause
Eminent Domain
Free Speech
Incorporation
Administrative law, Chevron deference, legislative veto
Lochner era, striking down of it
Substantive due process, Roe, Griswold, Carhart
Gitmo cases, Boumedeine, Rasul, Hamdi, Hamdan (watching ALCU movie)
Campain Reform/Spending
4th Amendment, exclusionary rule
Judicial jurisprudence
Evan said earlier that we should be doing stuff tonight. Lets see if that happens.
We end up going to the bar near us. We know the bartender and he makes up a deal of two Miller High Life for $5. I take that while Evan goes four gin and tonics deep. We then take a cab to Still, a popular NYU place. The place is poppin’ and loaded with people.
I get another beer since I’m taking it not too harshly. However, Evan gets two gin and tonics. I try to get him to work the shit and he actually shmoozes it up a bit with a really cute asian girl. However, he doesn’t follow it up and he loses her to another guy. I try to get him to wing with me otherwise, but that doesn’t work out since he ends up superdrunk. We go to Karthik’s place, stand around for a bit, he’s drunk, we leave, we get food, take a cab back, and end of night.
Although the game wasn’t thrown down hard, we were out and Evan finally got drunk. A great night in context.
November 30, 2008
Lots of people want to go to Dino, but there are issues. It’s an over an hour trip for me. It’s a long subway ride from 1st Ave to 131st. There’s also walking. They also don’t have ressies, so what’s that! I don’t really trust the fact that they might not get in or it will be an hour wait or something.
Turns out that they do get in, but they don’t do anything for the night, what a good plan for the night….
At 2:30ish, I go to this place I found on Sunny and Annie’s from Yelp. This is the review I wrote.
I just walked back from Sunny and Annie’s. It’s by far the best I’ve had in the East Village. I walk in and ask for the Monalisa. The guy throws in a breaded chicken cutlet in the microwave. The Korean guy that runs the place shouts at the people in the bathroom that they shouldn’t be using it and how he spent $700 in fixing it.
The guy flattened my roll and I’m confused why he’s doing it. It’s toasted. Then loads of roasted peppers are thrown on. Then at least 4-5 leaves of fresh basil. Then multiple slices of fresh mozzarella. If you guys care of about food, yes, FRESH mozzarella is put on. Then a load of balsamic. Then on with the cutlet. It costs $5.50.
I walk away eating it and I might’ve ejaculated in my pants. The sandwich is so big that it makes sense that the roll was flattened. After eating it, I realized in my bag that there’s a pickle in aluminum foil. A nice finishing to the best sandwich I’ve had. Go there, it’s so good.
December 1, 2008
The day is slow. I do a Psych study that is really boring and annoying. I just stare a boring screen and get shocked. It doesn’t hurt, but it’s annoying to sit there still for 30 minutes. So annoying.
Anyway, Stickam update.
I’ve been speaking to Corinne actually a lot. She calls me during her work breaks and we speak on AIM a lot during the weekend. She’s been recently going live, so I spend a lot of time there. She’s apparently coming to NYC in January.
It’s strange that so many people have disappeared off of Stickam. Then again, I guess people have lives.
December 5, 2008
It’s Boris’ birthday and I start drinking at night. We only go out at 12:00. Before that, I go to the Russain liquor store to pick up a bottle of JD because Evan thinks we should get a gift for him.
It’s at an apartment very close to us. It’s a pretty busy party, but Boris leave immediately and we go outside to stand around with Karthik, who’s pretty drunk. We stand around like idiots for a while and I tell Evan, we gotta move and do something. We have to either go back into the party or follow people who are leaving for a bar. Instead, we stand around for a while and try following the people.
We end up losing them and it turns to be a cock fest of a few drunk doods. Karthik’s drunk and wanders off. The other doods end up losing themselves or whatever. A waste of a party.
December 12, 2008
I’m invited on Facebook to this bar thing because Jenn, one of the girls I knew from Prague is moving back to LA. This again is like the thing I was invited too with Derek and Gianfranco. It’s going to be Prague people that I haven’t seen or talked to, but what am I going to do? Stay in and be a weirdo instead of going out and try to feel shit out?
Evan and I go to Five Guys for a bit. While I only needed 1 handle, I forgot to tell him. He got me two and there’s only 1 week of school left. Also, the night before, Brian was at Evan’s. He apparently also watches Pick Up and we have a paralleled conversation over it. It’s interesting because he’s used it to success and he’s also watch the episodes like me. We speak a lot about it and exchange ideas about it.
I pregame really hard and also find out that Evan isn’t coming with me. Socially anxiety is a killer and pregaming really hard does a good work on that. When I get there, I grab a beer. I see a lot of the peoples and they’re pretty darn nice to me. Charlotte is pretty and for some reason playing with my hair and stuff. Liz and I speak about Gossip Girl for a while. I hang with Allyse and her brother, Brendan for most of the night with his two cops friends. They joke that they have to get me more Irish and get a double shot of Jameson. I was already really shitfaced when I got there. The beer pushes me, the double shot really shoves me. I need a break and go outside for a “cig.” Instead, I’m super drunk and go over to the pizza and grab a drunk slice.
I get back and all inhibitions are dropped by then. They’ve ordered by another double shot and I take it. I’m so shitfaced that even the bartender notices by giving me a glass of water. That’s fuckin so embarrassing. We then go outside for a bit and the bouncer tells Brendan that I can’t go back in. I was planning to leave anyway because I was so drunk. I end up shamefully leaving and having to take someone’s number so I text when I get home safely.
Sunday 14 December 2008
Friday 12 December 2008
My Essay Bitchez
Darwin Goh
Professor Khan
Civil Liberties
25 November, 2008
The Duality of the Two Religion Clauses
In the history of the Supreme Court, it has constantly been faced with questions involving religion. The Free Exercise Clause and Establishment Clause of the First Amendment are guidelines set by the Constitution in dealing with religion, but the two often conflict with each other. The Court has been through the task balancing these rights and protections provided by the duality of these two clauses. There have been countless cases where the Court has dealt with these clauses, which has created an extensive history of jurisprudence. As the tension and duality of the clauses continues, the Court will continue to look for a proper balance to resolve this issue.
The two clauses in question are derived from the beginning of the First Amendment, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Establishment Clause comes from "no law respecting an establishment of religion" and the Free Exercise Clause comes from "prohibiting the free exercise thereof."
The Establishment Clause was incorporated onto the states through the Due Process Clause of the Fourteenth Amendment in Everson v. Board of Education, (1947). Not only is this case groundbreaking for incorporation, but also the language and “wall of separation” used by Justice Hugo Black, who wrote the majority opinion. His broad interpretation of the Establishment Clause created a strict boundary where the state had to almost completely avoid all interaction with religion or church. The Free Exercise Clause was incorporated in Cantwell v. Connecticut (1940). This set precedent onto the states that people’s free exercise of religion was not to be intruded upon.
The dilemma that the Court is faced with is balancing between these two clauses. While the state must avoid supporting or establishing religion, it also must assure that those who are practicing their religion are able to do so without government intervention. Many cases are faced with this duality. An example of a case that demonstrates this is Braunfeld v. Brown, (1961), where the Court found that Pennsylvania’s Sunday closing law had “purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance.” The Court finds that Braunfeld and other Orthodox Jews face only an “indirect burden” because the law doesn’t purposely impede upon their religious exercise. The state has reasonable and secular goals with the banning of business on Sundays. Precedent for restriction of business by the state, very similar to the Pennsylvania’s law, can be found in McGowan v. Maryland, (1961). In addition, the Court invokes the point that Braunfeld’s desire to do business on Sunday is “conduct.”
The Court has separated the expression of religion into “conduct” and “belief.” Belief is simply the right to hold one’s ideas and feelings on religion. However, once that leaks into physical action, then it is to be considered conduct. Because the state may have interest in controlling outward expression, the Court has found that conduct has less protection than belief. This dichotomy is created in Reynolds v. United States, (1878). In its decision, the Court quotes Thomas Jefferson, “the legislative powers of the government reach actions only, and not opinions.” When Reynolds committed the crime of polygamy, his religious duty of doing so was not protected by the Free Exercise Clause because it was action and conduct, instead of an internal idea of belief. It is because of this difference between conduct and conscience that Braunfeld’s religious rights were not protected as simply believing in his religion, but his desire to be able to sell goods on Sundays. He was not faced with a direct burden by the state and therefore strict scrutiny would not be applied.
This issue of state accommodation of people’s religious conduct was better defined in Sherbert v. Verner, (1963) with the creation of the Sherbert Test. In this test, direct burden onto an individual must be shown. As for the state, it must show it has a “compelling state interest” and achieve that interest in a way that least interferes with a person’s beliefs. The state’s interest was to create a consistent way of giving benefits for those unemployed. Unlike Braunfeld, the Court found that she was directly burdened for not receiving benefits and her religious duty of not working on Saturdays was a belief. The state had unfairly decided that a “Sabbatarian must conform with the scruples of the majority in order to obtain unemployment benefits.” Because of direct burden and belief, the Court found that the state must be shape its interest to occupy Sherbert’s beliefs and allow her benefits.
Later, Employment Div. v. Smith, (1990) set back Sherbert’s permission of exemptions. Justice Scalia specified, “We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation.” Because the state had an interest in prohibiting the use of drugs and the law was “valid and neutral law of general applicability,” there was no reason to give Smith an exception for peyote use. There is a slippery slope if such laws are curbed with exceptions. Statutes could be contradicted with a massive demand for exemptions for minimum wage laws, child neglect laws, animal cruelty laws, etc.
In response to this, Congress passed the Religious Freedom Restoration Act, which brought back the Sherbert Test and the use of strict scrutiny when investigating a state’s compelling interest. The act was overturned in City of Boerne v. Flores, (1997). This set the Court’s standard back to that of Smith, which found the Sherbert overstepping the protections provided in the Free Exercise Clause.
As for the Establishment Clause, Justice Hugo Black’s words in Everson v. Board of Education, (1947) have drawn a strict separation religion and the state. An example of this would be with schools and their use of prayer. The Court enforced Everson’s precedent, with Justice Black again writing the majority decision, and decided that the mere promotion of religion by a denominationally neutral and voluntary prayer is unconstitutional (Engel v. Vitale, 1962). To properly express a solid wall of separation, the Court created the Lemon Test (Lemon v. Kurtzman, 1971).
This precedent of removing religion from the schools has continued into more recent example’s of the Court jurisprudence towards the Establishment Clause, including banning student led prayer in Santa Fe Independent School Dist. v. Doe, (2000) and disallowing the teaching of creationism in Edwards v. Aguillard, (1987).
Between these two clauses, the Court has been put at the tedious task of allowing a free exercise of religion, while not allowing states to establish or recognize a specific religion, or any religions at all. The two clauses have been interpreted as conflicting interests that must be balanced. For the Establishment Clause, the Court’s jurisprudence has held relatively separationist since the wall of separation created in Everson. This consistency cannot be found with the Court’s history in dealing with the Free Exercise clause. The Court has allowed for some accommodation of religion with the Sherbert Test and compelling state interest, but it becomes overturned by Smith. This reveals a huge shift in the Court’s view on sympathizing for the interests of those who are burdened by the state.
The impacts of the Court’s decisions are widespread and affect many. Despite the Court’s attempt to enforce and protect the rights stated within the clauses, many remain dissatisfied. Those who desire religious exercise free from state intrusion are no longer allowed such exemptions (Employment Div. v. Smith, 1990). Schools that desire to reflect religious values of society onto students thorough prayer have constantly been rejected (Engel v. Vitale, 1962).
As the Court continues to assess the duality of the clauses, I feel there is a reasonable way to head towards an accepted view on interpreting and applying the clauses. First of all, the Court must reinterpret the Establishment Clause. I would agree with Justice Stewart’s words, “a refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism” (dissenting) (School Dist. of Abington Tp. v. Schempp, 1963). The “wall of separation” created in Justice Black in Everson has consistently conflicted with the interest of the state and education, which naturally involves religion because of society’s attachment to it. To completely separate the two creates a state of secularity, instead of avoiding establishment. In addition, dividing the two apart seems implausible. Justice Burger explains that the country’s history and current state includes religion such as, “In God We Trust” on US currency, the use of “under God” in the pledge, Congress’ recognition of religious holidays, etc. (Lynch v. Donnelly, 1984). Despite over fifty years precedent from Everson, it’s apparent that the state cannot completely remove itself from recognizing religion and to an extent, interacting with it. The government does involve itself with religion to an extent, yet it still has tried to represent a “wall” between the two.
In reinterpreting the Establishment Clause, reversing the incorporation of Everson would be a drastic move that would overturn decades of decisions and jurisprudence, although it was suggested by Justice Stewart in Schempp and Justice Thomas (concurrence) (Cutter v. Wilkinson, 2005). These two Justices interpret the Establishment Clause in an originalist sense, or as a provision of federalism that would inhibit federal establishment of religion over the states. However, with a long history of incorporation ever since Gitlow v. New York, (1925), it is hard to imagine the complete overturning of the precedence created in Everson. Instead, the Court must loosen its reins on religion and reject the flawed Lemon Test. It has had problems ever since its creation. It forced a Catch 22 by not allowing state funding possibly going towards religion in private schools, but also not allowing the state to check upon the schools if they were staying secular (Justice White concurring/dissent) (Lemon v. Kurtzman, 1971). Ever since its creation, the test has made it hard for the state to find a reasonable balance of interacting with religion. Also, the first prong of the Lemon Test, government action must have a secular purpose, improperly deals with law. As Justice Scalia finds, laws must be dealt with by their effect and not their intentions (concurrence) (Church of Lukumi Babalu Aye v. City of Hialeah, 1993). Despite its precedent, the Lemon Test must be modified without the first prong. Also, the second prong must be loosened to not completely reject religion from the state.
Another thing the Court way to settle the tension would be to remove taxpayer standing over Establishment Clause created in Flast v. Cohen, (1968). Recently, the Court has held the Commerce Clause of the Constitution is not a legitimate reason for a taxpayer to argue for burden by legislation before the Court (DaimlerChrysler Corp. v. Cuno, 2006). Despite Justice Scalia’s urge to rely on stare decisis, he realizes that Flast is not consistent with how the Court views standing because it makes an exception for the Establishment Clause by giving taxpayers standing and it should be overturned (Hein v. Freedom From Religion Foundation, 2007). Doing so would be a huge step in assuring that state action in dealing with religion is not consistently scrutinized, altered, or overruled by the Supreme Court. Despite these issues, the Supreme Court has come to what I feel is a logical and reasonable way to interpret the Free Exercise Clause in Smith. Creating exemptions for certain individuals only undermines legitimate and neutral laws.
The Supreme Court must not look at the Establishment Clause and Free Exercise Clause as separate entities that cause a conflicting duality. They are to be utilized by the Court as a harmonious collective that prevents state establishment of religion burdening individuals and allowing people to freely exercise their religion from biased laws. It should apply judicial restraint unless people are coerced upon should the Court act appropriately. A decision like Santa Fe Independent School Dist. v. Doe, (2000) is an example of how the Court has overreached its power by not allowing students to voluntarily exercise their right of religion. To construe their conduct in school as an establishment is unfortunate. The Court must reinterpret its relationship with states and how far it has gone to not prevent establishment, but unduly extract religion from the public sphere.
The Supreme Court has gone through quite a history in dealing with religion and observing how it has balanced between the Establishment Clause and Free Exercise Clause is extremely interesting. Its decisions have brought sweeping changes in how the government can associate with religion and people’s expression of it. Some of the Court’s jurisprudence has shifted ever since incorporation of the two Clauses in Everson and Cantwell, but hopefully the Court realizes a way to allow people to exercise their right in religion, but also allows states to act on its interests.
Works Cited
Braunfeld v. Brown, 366 U.S. 599 (1961). < http://supreme.justia.com/us/366/599/case.html>
Cantwell v. Connecticut, 310 U.S. 296 (1940).
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
< http://supreme.just ia.com/us/508/520/case.html>
City of Boerne v. Flores, 521 U.S. 507 (1997).
Cutter v. Wilkinson, 544 U.S. 709 (2005).
< http://supreme.justia.com/us/544/03-9877/case .html>
DaimlerChrysler Corp. v. Cuno, (2006). < http://supreme.justia.com/us/547/04-1704/>
Edwards v. Aguillard, 482 U.S. 578 (1987). < http://supreme.justia.com/us/482/578/case.html>
Employment Div. v. Smith., 494 U.S. 872 (1990).
< http://supreme.justia.com/us/494/872/case .html>
Everson v. Board of Education of the Township of Ewing, 330 U.S. 1 (1947).
< http://supreme .justia.com/us/330/1/>
Engel v. Vitale, 370 U.S. 421 (1962). < http://supreme.justia.com/us/370/421/case.html>
Flast v. Cohen, 392 U.S. 83 (1968). < http://supreme.justia.com/us/392/83/case.html>
Hein v. Freedom From Religion Foundation, (2007).
< http://supreme.justia.com/us/551/06-157/>
Lemon v. Kurtzman, 403 U.S. 602 (1971). < http://supreme.justia.com/us/403/602/case.html>
Lynch v. Donnelly, 465 U.S. 668 (1984). < http://supreme.justia.com/us/465/668/case.html>
McGowan v. Maryland, 366 U.S. 420 (1961). < http://supreme.justia.com/us/366/420/case.html>
Reynolds v. United States, 98 U.S. 145 (1878). < http://supreme.justia.com/us/98/145/case.html>
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000).
< http://supreme.justia.com/us/530/290/case.html>
School Dist. of Abington Tp. v. Schempp, 374 U.S. 203 (1963).
Sherbert v. Verner, 374 U.S. 398 (1963).
Professor Khan
Civil Liberties
25 November, 2008
The Duality of the Two Religion Clauses
In the history of the Supreme Court, it has constantly been faced with questions involving religion. The Free Exercise Clause and Establishment Clause of the First Amendment are guidelines set by the Constitution in dealing with religion, but the two often conflict with each other. The Court has been through the task balancing these rights and protections provided by the duality of these two clauses. There have been countless cases where the Court has dealt with these clauses, which has created an extensive history of jurisprudence. As the tension and duality of the clauses continues, the Court will continue to look for a proper balance to resolve this issue.
The two clauses in question are derived from the beginning of the First Amendment, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Establishment Clause comes from "no law respecting an establishment of religion" and the Free Exercise Clause comes from "prohibiting the free exercise thereof."
The Establishment Clause was incorporated onto the states through the Due Process Clause of the Fourteenth Amendment in Everson v. Board of Education, (1947). Not only is this case groundbreaking for incorporation, but also the language and “wall of separation” used by Justice Hugo Black, who wrote the majority opinion. His broad interpretation of the Establishment Clause created a strict boundary where the state had to almost completely avoid all interaction with religion or church. The Free Exercise Clause was incorporated in Cantwell v. Connecticut (1940). This set precedent onto the states that people’s free exercise of religion was not to be intruded upon.
The dilemma that the Court is faced with is balancing between these two clauses. While the state must avoid supporting or establishing religion, it also must assure that those who are practicing their religion are able to do so without government intervention. Many cases are faced with this duality. An example of a case that demonstrates this is Braunfeld v. Brown, (1961), where the Court found that Pennsylvania’s Sunday closing law had “purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance.” The Court finds that Braunfeld and other Orthodox Jews face only an “indirect burden” because the law doesn’t purposely impede upon their religious exercise. The state has reasonable and secular goals with the banning of business on Sundays. Precedent for restriction of business by the state, very similar to the Pennsylvania’s law, can be found in McGowan v. Maryland, (1961). In addition, the Court invokes the point that Braunfeld’s desire to do business on Sunday is “conduct.”
The Court has separated the expression of religion into “conduct” and “belief.” Belief is simply the right to hold one’s ideas and feelings on religion. However, once that leaks into physical action, then it is to be considered conduct. Because the state may have interest in controlling outward expression, the Court has found that conduct has less protection than belief. This dichotomy is created in Reynolds v. United States, (1878). In its decision, the Court quotes Thomas Jefferson, “the legislative powers of the government reach actions only, and not opinions.” When Reynolds committed the crime of polygamy, his religious duty of doing so was not protected by the Free Exercise Clause because it was action and conduct, instead of an internal idea of belief. It is because of this difference between conduct and conscience that Braunfeld’s religious rights were not protected as simply believing in his religion, but his desire to be able to sell goods on Sundays. He was not faced with a direct burden by the state and therefore strict scrutiny would not be applied.
This issue of state accommodation of people’s religious conduct was better defined in Sherbert v. Verner, (1963) with the creation of the Sherbert Test. In this test, direct burden onto an individual must be shown. As for the state, it must show it has a “compelling state interest” and achieve that interest in a way that least interferes with a person’s beliefs. The state’s interest was to create a consistent way of giving benefits for those unemployed. Unlike Braunfeld, the Court found that she was directly burdened for not receiving benefits and her religious duty of not working on Saturdays was a belief. The state had unfairly decided that a “Sabbatarian must conform with the scruples of the majority in order to obtain unemployment benefits.” Because of direct burden and belief, the Court found that the state must be shape its interest to occupy Sherbert’s beliefs and allow her benefits.
Later, Employment Div. v. Smith, (1990) set back Sherbert’s permission of exemptions. Justice Scalia specified, “We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation.” Because the state had an interest in prohibiting the use of drugs and the law was “valid and neutral law of general applicability,” there was no reason to give Smith an exception for peyote use. There is a slippery slope if such laws are curbed with exceptions. Statutes could be contradicted with a massive demand for exemptions for minimum wage laws, child neglect laws, animal cruelty laws, etc.
In response to this, Congress passed the Religious Freedom Restoration Act, which brought back the Sherbert Test and the use of strict scrutiny when investigating a state’s compelling interest. The act was overturned in City of Boerne v. Flores, (1997). This set the Court’s standard back to that of Smith, which found the Sherbert overstepping the protections provided in the Free Exercise Clause.
As for the Establishment Clause, Justice Hugo Black’s words in Everson v. Board of Education, (1947) have drawn a strict separation religion and the state. An example of this would be with schools and their use of prayer. The Court enforced Everson’s precedent, with Justice Black again writing the majority decision, and decided that the mere promotion of religion by a denominationally neutral and voluntary prayer is unconstitutional (Engel v. Vitale, 1962). To properly express a solid wall of separation, the Court created the Lemon Test (Lemon v. Kurtzman, 1971).
This precedent of removing religion from the schools has continued into more recent example’s of the Court jurisprudence towards the Establishment Clause, including banning student led prayer in Santa Fe Independent School Dist. v. Doe, (2000) and disallowing the teaching of creationism in Edwards v. Aguillard, (1987).
Between these two clauses, the Court has been put at the tedious task of allowing a free exercise of religion, while not allowing states to establish or recognize a specific religion, or any religions at all. The two clauses have been interpreted as conflicting interests that must be balanced. For the Establishment Clause, the Court’s jurisprudence has held relatively separationist since the wall of separation created in Everson. This consistency cannot be found with the Court’s history in dealing with the Free Exercise clause. The Court has allowed for some accommodation of religion with the Sherbert Test and compelling state interest, but it becomes overturned by Smith. This reveals a huge shift in the Court’s view on sympathizing for the interests of those who are burdened by the state.
The impacts of the Court’s decisions are widespread and affect many. Despite the Court’s attempt to enforce and protect the rights stated within the clauses, many remain dissatisfied. Those who desire religious exercise free from state intrusion are no longer allowed such exemptions (Employment Div. v. Smith, 1990). Schools that desire to reflect religious values of society onto students thorough prayer have constantly been rejected (Engel v. Vitale, 1962).
As the Court continues to assess the duality of the clauses, I feel there is a reasonable way to head towards an accepted view on interpreting and applying the clauses. First of all, the Court must reinterpret the Establishment Clause. I would agree with Justice Stewart’s words, “a refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism” (dissenting) (School Dist. of Abington Tp. v. Schempp, 1963). The “wall of separation” created in Justice Black in Everson has consistently conflicted with the interest of the state and education, which naturally involves religion because of society’s attachment to it. To completely separate the two creates a state of secularity, instead of avoiding establishment. In addition, dividing the two apart seems implausible. Justice Burger explains that the country’s history and current state includes religion such as, “In God We Trust” on US currency, the use of “under God” in the pledge, Congress’ recognition of religious holidays, etc. (Lynch v. Donnelly, 1984). Despite over fifty years precedent from Everson, it’s apparent that the state cannot completely remove itself from recognizing religion and to an extent, interacting with it. The government does involve itself with religion to an extent, yet it still has tried to represent a “wall” between the two.
In reinterpreting the Establishment Clause, reversing the incorporation of Everson would be a drastic move that would overturn decades of decisions and jurisprudence, although it was suggested by Justice Stewart in Schempp and Justice Thomas (concurrence) (Cutter v. Wilkinson, 2005). These two Justices interpret the Establishment Clause in an originalist sense, or as a provision of federalism that would inhibit federal establishment of religion over the states. However, with a long history of incorporation ever since Gitlow v. New York, (1925), it is hard to imagine the complete overturning of the precedence created in Everson. Instead, the Court must loosen its reins on religion and reject the flawed Lemon Test. It has had problems ever since its creation. It forced a Catch 22 by not allowing state funding possibly going towards religion in private schools, but also not allowing the state to check upon the schools if they were staying secular (Justice White concurring/dissent) (Lemon v. Kurtzman, 1971). Ever since its creation, the test has made it hard for the state to find a reasonable balance of interacting with religion. Also, the first prong of the Lemon Test, government action must have a secular purpose, improperly deals with law. As Justice Scalia finds, laws must be dealt with by their effect and not their intentions (concurrence) (Church of Lukumi Babalu Aye v. City of Hialeah, 1993). Despite its precedent, the Lemon Test must be modified without the first prong. Also, the second prong must be loosened to not completely reject religion from the state.
Another thing the Court way to settle the tension would be to remove taxpayer standing over Establishment Clause created in Flast v. Cohen, (1968). Recently, the Court has held the Commerce Clause of the Constitution is not a legitimate reason for a taxpayer to argue for burden by legislation before the Court (DaimlerChrysler Corp. v. Cuno, 2006). Despite Justice Scalia’s urge to rely on stare decisis, he realizes that Flast is not consistent with how the Court views standing because it makes an exception for the Establishment Clause by giving taxpayers standing and it should be overturned (Hein v. Freedom From Religion Foundation, 2007). Doing so would be a huge step in assuring that state action in dealing with religion is not consistently scrutinized, altered, or overruled by the Supreme Court. Despite these issues, the Supreme Court has come to what I feel is a logical and reasonable way to interpret the Free Exercise Clause in Smith. Creating exemptions for certain individuals only undermines legitimate and neutral laws.
The Supreme Court must not look at the Establishment Clause and Free Exercise Clause as separate entities that cause a conflicting duality. They are to be utilized by the Court as a harmonious collective that prevents state establishment of religion burdening individuals and allowing people to freely exercise their religion from biased laws. It should apply judicial restraint unless people are coerced upon should the Court act appropriately. A decision like Santa Fe Independent School Dist. v. Doe, (2000) is an example of how the Court has overreached its power by not allowing students to voluntarily exercise their right of religion. To construe their conduct in school as an establishment is unfortunate. The Court must reinterpret its relationship with states and how far it has gone to not prevent establishment, but unduly extract religion from the public sphere.
The Supreme Court has gone through quite a history in dealing with religion and observing how it has balanced between the Establishment Clause and Free Exercise Clause is extremely interesting. Its decisions have brought sweeping changes in how the government can associate with religion and people’s expression of it. Some of the Court’s jurisprudence has shifted ever since incorporation of the two Clauses in Everson and Cantwell, but hopefully the Court realizes a way to allow people to exercise their right in religion, but also allows states to act on its interests.
Works Cited
Braunfeld v. Brown, 366 U.S. 599 (1961). < http://supreme.justia.com/us/366/599/case.html>
Cantwell v. Connecticut, 310 U.S. 296 (1940).
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
< http://supreme.just ia.com/us/508/520/case.html>
City of Boerne v. Flores, 521 U.S. 507 (1997).
Cutter v. Wilkinson, 544 U.S. 709 (2005).
< http://supreme.justia.com/us/544/03-9877/case .html>
DaimlerChrysler Corp. v. Cuno, (2006). < http://supreme.justia.com/us/547/04-1704/>
Edwards v. Aguillard, 482 U.S. 578 (1987). < http://supreme.justia.com/us/482/578/case.html>
Employment Div. v. Smith., 494 U.S. 872 (1990).
< http://supreme.justia.com/us/494/872/case .html>
Everson v. Board of Education of the Township of Ewing, 330 U.S. 1 (1947).
< http://supreme .justia.com/us/330/1/>
Engel v. Vitale, 370 U.S. 421 (1962). < http://supreme.justia.com/us/370/421/case.html>
Flast v. Cohen, 392 U.S. 83 (1968). < http://supreme.justia.com/us/392/83/case.html>
Hein v. Freedom From Religion Foundation, (2007).
< http://supreme.justia.com/us/551/06-157/>
Lemon v. Kurtzman, 403 U.S. 602 (1971). < http://supreme.justia.com/us/403/602/case.html>
Lynch v. Donnelly, 465 U.S. 668 (1984). < http://supreme.justia.com/us/465/668/case.html>
McGowan v. Maryland, 366 U.S. 420 (1961). < http://supreme.justia.com/us/366/420/case.html>
Reynolds v. United States, 98 U.S. 145 (1878). < http://supreme.justia.com/us/98/145/case.html>
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000).
< http://supreme.justia.com/us/530/290/case.html>
School Dist. of Abington Tp. v. Schempp, 374 U.S. 203 (1963).
Sherbert v. Verner, 374 U.S. 398 (1963).
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