Assignment #2
Government 2305
Spring 2017
Civil Liberties
The First Amendment and the Establishment Clause
Scalia: Supreme Court Making Major Change to Constitution's Religious Liberty
Protections
Ken Klukowski
Breitbart
June 16, 2014
http://www.breitbart.com/Big-Government/2014/06/16/Scalia-Supreme-Court-MakingMajor-Change-to-Constitution-s-Religious-Liberty-Protections
Background: For many years, Elmbrook School district has held its graduation ceremonies in a
church. The U.S Court of Appeals for the Seventh Circuit affirmed a lower-court ruling that this
location for school graduation is an unconstitutional endorsement of religion. But several judges
on the Chicago based Seventh Court of Appeals dissented in the case Elmbrook School District v
Doe, arguing why the First Amendment allows these ceremonies ( the ruling still holds because
the dissenting opinions dd not outnumber the affirming decisions). The Supreme Case denied
review of this important First Amendment Case but spoke to the concerns of the dissenting
opinions of the Seventh Circuit Court of Appeals in another case, Town of Greece v. Galloway.
1. What did Town of Greece v. Galloway uphold and the extent of that decision?
2. When would these principles apply?
3. Since 1989, what has the Supreme Court held regarding the violation of the
Establishment Clause?
4. What was the breakdown of the vote and its effect?
5. Kennedy, who was part of the dissenting opinion ( didn't agree with the “endorsement
test in that 5-4 in 1989) is now writing the majority opinion of the 5-4 2014 decision. In
this 2014 decision,what did Kennedy say regarding when the the Establishment Clause is
violated and the requirement of the First Amendment ?
6. When the Court denied the review in Elmbrook School, Justices Scalia and Thomas
dissented from the Court and confronted and curtailed the errant line of precedent in
Elmbrook School District v. Doe in Town of Greece. What were those three areas that
Town of Greece addressed?
7. Town of Greece could be an historic change in the making and affect what upcoming
Supreme Court case?
8. Given that the prayers are offered in the beginning, separate from the legislative session
and can be offered by any religious denomination, how would you have voted in Town of
Greece v. Galloway? (2 paragraphs-5 points)
I will try and have the class hear the oral arguments of Town of Greece v. Galloway or the
Fischer v. University of Texas case when we address the Federal Courts.
Update: Texas attorney general OK's prayer in court over atheist group's objections.
Justice of the peace in Montgomery County, Texas, Judge Wayne Mack invited “all
religious leaders of any faith in his county to participate in the courts opening court
session. The attorney general cited Town of Greece v. Galloway.
Military Court Uphold Marine's Bad Conduct Over Bible Verses
Brandford Richardson
Washington Times
August 11, 2016
http://www.washingtontimes.com/news/2016/aug/11/monifa-sterlings-bad-conductdischarge-from-marine/
An excellent article on the correct interpretation of the Religious Freedom Reformation
Act. Take into consideration, we are dealing with the military protocol.
1. What did the highest U.S military court uphold?
2. The 4-1 decision handed down by the US Court of Appeals for the Armed Services cited
which Act to base their conclusions?
3. Which group defended Ms. Sterling? Besides the bible verses,what other activities does
Kelly Shackelford , president of the First Liberty Institute, believe are also in jeopardy?
4. What argument did the Appellate Court's majority cite that would give them authority to
leave the Religious Freedom Restoration Act dormant on this matter?
5. Which organization filed an amicus brief?
6. Mr. Weinstein's claim that the “compelling government interest” is different (as opposed
to the Federal Government in general). Do you think Parker v. Levy case is really
applicable to this case. Why or why not?
7. What two reasons are cited by Ken Klukowski, senior counsel and director of strategist
affairs at First Liberty Institute, as to why the court simply “got the law wrong” in two
courts? (make sure this is compete)
8. Why does Mr. Klukowski believe the government made this case a substantial burden?
9. What action would be forthcoming from The First Liberty Institute?
(Note :this is in a military court and sometimes different rules apply. Time will tell to see if the
court will grant a writ of certiorari, a hearing of this case).
Update: I believe the Supreme Court will be taking this case.
Court Quickly Halts NC State Policy that Requires Permits for Any, All Speech
Alliance Defending Freedom
Tyson Langhofer
June 6, 2016
http://adflegal.org/detailspages/press-release-details/court-quickly-halts-nc-state-policythat-requires-permits-for-any-all-speech
Scroll down to paragraph beginning with “the university only selectively”.
1. What action did the university perform that would be objectionable to Grace Christian
Life?
2. What would the members need to have before they could speak with other students in the
student union?
3. The student involvement offices did not equally enforce their “rules”. Name two actions
other groups were allowed to do that did not extended to Grace Christian Life.
Now proceed to the top of the article.
4. What did a federal court order North Carolina State University to do?
5. Which group assisted Grace Christian Life in asking the Court to halt the policy (an
injunction) of needing a permit to speak to other students?
6. What dies Tyson Langhofer, Alliance Defense Freedom (ADF) senior counsel, believe is
the only permit required for free speech?
7. Why does Mr. Langhofer believe North Carolina State is acting inconsistently?
8. Sometimes injunctions are given by courts depending upon the plaintiffs ability to
succeed when the court finally hears the entire case and makes a decision. What were the
four arguments given by Grace Christian Life to further their success in the final court
case?
9. What is your reaction to someone needing a permit to talk to you on campus? (2
paragraphs-5 points)
The Fourth Amendment
Maryland v. King
The Maryland Court of Appeals set aside the conviction of King, finding unconstitutional
the portions of the Act authorizing DNA collections from felony arrestees. The case then
went to the Supreme Court. Below is an article describing some of the questions the
Justices of the Supreme Court asked during oral argument for this case.
Argument recap: does crime-solving trump privacy?
Lyle Denniston
February 26, 2013
SCOTUS blog
http://www.scotusblog.com/2013/02/argument-recap-does-crime-solving-trump-privacy/
1.
2.
3.
4.
5.
6.
What will the Justices be closely examining in this case?
What three questions were the Justices divided on regarding Maryland v. King?
What did Baltimore's attorney general cite as an argument for the DNA sampling?What
was Justice Scalia's response to Baltimore's Attorney General, Katherine Winfree?
Over the course of this case, Chief Justice Roberts had developed some doubts. What was
Chief Justice Roberts response to Winfree's arguments?
What statement from Winfree did Elena Kagan negatively react to during the
proceedings?
What was Justice Sonia Sotomayor's issue?
7.
8.
9.
10.
11.
12.
13.
14.
How did Justice Stephen Breyer approach differ?
What argument did the Deputy Solicitor General, Michael Dreeben, use to pare down the
argument of privacy?
Kagan and Breyer argued from different perspectives on the time line and the reading of
fingerprints and the analyses of DNA samples. What did Justice Alito think about
fingerprints versus DNA?
Kennedy is often the swing vote in many of these cases and seemed to align himself with
Alito in maximizing the DNA technology and looking for exceptions to the Fourth
Amendment's search warrant requirements. What does he think should occur when
police have someone in custody?
Alito believes DNA sampling to be a “very minimal” intrusion and similar to the
fingerprinting of the 21st Century. Why did Alito's use of a urine sample bolstered
Dreeben's point?
What was Shanmugam's argument regarding justification of DNA sampling?
What two things does Justice Kennedy believe should be included when establishing
identification?
If you were on the Supreme Court, what questions would you have asked and how do you
stand on this issue? (1 paragraphs with essential data 3 points)
Update: The Supreme Court reversed the Maryland Court of Appeals decision:
Held: When officers make an arrest supported by probable cause to hold for a serious offense
and bring the suspect to the station to be detained in custody, taking and analyzing a cheek
swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police
booking procedure that is reasonable under the Fourth Amendment.
It was a 5-4 decision with Justice Kennedy writing the majority opinion with Roberts, Thomas,
Breyer, and Alito joining the majority opinion. Breyer, a liberal judge, aligned with the
conservative judges to render a majority decision in Maryland v. King.
On the other hand, Scalia, a conservative judge, aligned himself with the more liberal Justices,
stressing the need for a warrant and privacy rights as outlined by the 4 th amendment when
getting a DNA sample from a person who has been arrested, but not yet convicted. Scalia
wrote the dissenting opinion with Ginsburg, Sotomayor, and Kagan joining the dissent.
Civil Rights
The Ricci v Stefano case, along with other cases, poses the following question:
Which road will lead to the racial equality most Americans seek: racial quotas or color-blind,
meritocratic standards?
Race in the Workplace
Wall Street Journal/April 22, 2009
http://online.wsj.com/article/SB124035719714541031.html#printMode
1. Judge John Robert’s majority opinion in 2007, Parents Involved v Seattle School District,
ruled that race cannot be a factor in assigning children to public schools. What will the
High Court decide in this case?
2. What is the city not denying and what does it base its defense on? Explain
3. Federal court agreed with the city and dismissed the case. A three-judge panel of the 2nd
Court of appeals affirmed the lower court’s unpublished decision in a cursory statement,
not addressing the core Constitutional question. When the full appeals court voted against
re-hearing Ricci, what did Judge Jose Cabranes write in his dissent? Would that be the
final answer?
4. In Richmond v Croson (1989), Justice Kennedy had taken a skeptical view of race-based
government schemes. What did he say about this racial set aside case?
5. Though he concurred with Justice Roberts in the Parents Involved v Seattle School
District, how was Kennedy’s opinion different?
6. The Justice Department wants the Supreme Court to send this case back to the lower
courts. Justice says the city acted properly in throwing out the tests assuming it did not do
it as “ a pretext for race discrimination. ” Except that seems to be exactly what New
Haven did. If the Justice Department believed they could win on the merits, why would
the Justice Department want this case to return this case back to the lower court?
7. New Haven can't be faulted for aiming to make its fire department more
diverse. As part of a multiracial, multiethnic society, we all have a stake in
encouraging minorities to participate in the modern workplace and rise to
leadership positions. Nevertheless, what approach does the author believe should be
considered?
8. What do employers deserve from the Ricci case?
9. What do the plaintiffs deserve?
Now to find out what happened!
Court Rules For Firefighters In Ricci Case
July 27, 2009
CBS News
http://www.cbsnews.com/stories/2009/06/29/national/main5121634.shtml
1. Why did the city say it acted?
2. What did Justice Kennedy say about fear of litigation?
3. Who joined Justice Kennedy is his majority decision?
4. What was Justice Kennedy’s opinion about the test used by the New Haven, Connecticut fire
department? (The test was designed by an experienced Illinois company,
Industrial/Organizational Solution, which routinely scrubbed its assessments for any possible
racial bias to protect the agencies from potential civil rights complaints)
5. How might this alter employment practices?
Justice Back Broad Interpretation of Housing Law
Adam Liptak
New York Times
June 25, 2015
This case addresses federal monies to builders outside of the minority neighborhoods to
encourage more housing in other neighborhoods, especially middle class neighborhoods.
Disproportionate impact can be used as a means of evaluating success, but
Justice Kennedy has put limitations when using the disproportionate impact standard.
https://www.nytimes.com/2015/06/26/us/justices-back-broad-interpretation-of-housinglaw.html?_r=0
1.
2.
3.
4.
5.
6.
7.
8.
What is the question in this case?
What are the differences between the two proofs?
Describe the group that brought the suit.
When does a landlord have to accept voucher?
What did the fair housing group argue?
What did the Supreme Court do with this case? Kennedy's concern?
Why did Judge Alito think this housing law only applied to intentional discrimination?
Who joined Justice Alito's dissent?
Affirmative action in the Fisher v. University of Texas will be addressed in class.