BLACKOUT REPORT Final Report on the August 14, 2003 Blackout in the United States and Canada

CRICKETS AND GRASSHOPPERS
Melodic chirps
Back and forth
Sliding force
Ratchets sounding plural
United humming
Sporting leaves
Suited to fit
Leaping lengths
Singing songs of the night’s lively crowd
SANDY BLUES
Sorrowful sounds trickle down
Twisting and turning transparently everywhere
Rapids rush over miseries once drowned
A splash of life spirals through the air
Bringing beauty to the shore
Entangling love and pain causing care
Trickles ripple waters before
Illustrious stones lay on the beach’s silhouette
Forming soft curves resembling a woman
Moonlight sparkles off the laughter the night we first met
Smiles grow across the dunes as we walk as one
As the night ends and the light grows dim, a new day has come

SECTION S
HOW HAS THE COURT ADDRESSED ATTORNEY SOLICITATION OF PROSPECTIVE CLIENTS?
In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the court held that the government may not prohibit attorneys from engaging in truthful non-deceptive advertising of their services.
The court reasoned that the face-to-face solicitation inherently risks deception and pressure because no one is there to monitor the communications.
However, the court held that the First Amendment protects the solicitations when the lawyer offers to represent a client without charge.
Moreover, the court concluded that the litigation is used as a vehicle for effective political expression and association as well as a means of communicating useful information to the public.
In addition, the attorney was not seeking to profit directly from the client.
The court emphasized the importance of the speech as a form of political activity and in lessening the likelihood of deceptive practices by the attorney.
The court stated that it was irrelevant that the American Civil Liberties Union (A.C.L.U) attorney would seek attorney’s fees from the state if the plaintiff prevailed in the case.
In Linmark Associates inc. v. Township of Willingboro, 431 U.S. 85 (1977), the court held that the respondents failed to establish that this ordinance is needed to assure that Willingboro remains an integrated community.
In addition, the court did not confirm the township’s assumption that proscribing such signs will reduce public awareness of realty sales and thereby decrease public concern over selling.
In Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), the United States Supreme Court held that a state could not limit pharmacists’ right to provide information about prescription drug prices through the application of the First Amendment to commercial speech.
In contrast, here the court reasoned that the ordinance acted to prevent its residents from obtaining certain information that is a vital interest to Willingboro residents because it involves an important right of families to decide where to live and raise their families.
Moreover, the council has sought to restrict the free flow of these data because it fears that homeowners will make decisions unfavorable to the views and corporate interest of the council. Furthermore, the court concluded that when weighing the homeowner’s self-interest with the corporate interest of the township, the homeowner will choose to leave town.
In addition, the court stated that if the dissemination of this information can be restricted, then every locality in the country can suppress any facts that reflect poorly on the locality, so long as a plausible claim can be made that the disclosure would cause the recipients of the information to act “irrationally.”
HOW HAS THE COURT ADDRESSED PRIVATE PROPERTY AND SPEECH?
The court held that there is not a right to use private property owned by others for speech.
HOW HAS THE COURT ADDRESSED THE SPEECH IN AUTHORITARIAN ENVIRONMENTS: MILITARY, PRISONS, AND SCHOOLS?
MILITARY
In Parker v. Levy, 417 U.S. 733 (1974), the court has held that the general test is that the government may restrict and punish the speech of prisoners if the action is reasonably related to a legitimate pedagogical interest.
Here, the court discussed the issue of military regulations.
The court concluded that negative statements about the Vietnam War disrupt authority.
Justice Douglas dissenting
PRISONS
In Thornburgh v. Abbott, 490 U.S. 401 (1989), held that the regulation was facially valid because the Federal Bureau of Prisons have a compelling government interest in maintaining order in the prison system and the regulation was rationally related to the interest.
The court stated that the regulation of prison mail is by the prison officials’ strict discretion to accept or deny mail to inmates. The prison officials could reject something if it was detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity, but not solely, because its content was religious, philosophical, political, social, sexual, unpopular, or repugnant.
Here, some of the magazines denied by prison officials described poor prison conditions.
Justice Stevens, Brennan and Marshal concurring and dissenting in part
An article in Labyrinth, a magazine published by the Committee for Prisoner Humanity & Justice began as follows:
On the day of his death, Jones was suffering an acute asthma attack; he was gasping for breath in the stale hot humid air in the cell. He requested medical aid of the guards. After several hours of unheeded pleading accompanied by complaints to the guards from fellow prisoners in the cellblock, Jones became frantic. Each breath was painful; each breath brought him closer to suffocation. Finally, guards called the P.A. (physician’s assistant)… who brought with him the broken respirator. Finding the equipment unusable, the P.A. gave Jones an injection of the tranquilizer, thorazine, to calm him. The treatment with a tranquilizer was unquestionably contradicted by Jones’ medical condition. Twenty minutes later, Jones was dead. In conclusion, Jones, who was serving a ten-year sentence for a bank robbery conviction, was in fact sentenced to death and was murdered by neglect.
In Procunier v. Martinez, 416 U.S. 396 (1974), the court held unconstitutional a prison regulation that restricted the types of letters that prisoners can write.
The court stated that the censorship of direct personal correspondence involves incidental restrictions on the right to free speech of both prisoners and their correspondents, and is justified if it furthers one or more of the important and substantial governmental interests of security, order, and the rehabilitation of inmates. In addition, it must be no greater than is necessary to further the legitimate governmental interest involved.
In Shaw v. Murphy, 532 U.S. 223 (2001), the court held that inmates are prohibited from providing legal assistance to other inmates.
The court discussed the letter content allowed in prison systems.
SCHOOLS
In Tinker v. Des Moines Independent Community School, 393 U.S. 503 (1969), the Supreme Court held that the First Amendment, applied through the Fourteenth, did not permit a public school to punish a student for wearing a black armband as an anti-war protest absent any evidence that the rule was necessary to avoid substantial interference with school discipline or the rights of others.
Under the rule, the court stated that where there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school and thus the prohibition cannot be sustained.
Here, several students wore black armbands to school in protest of the Vietnam War.
The court concluded that the pure speech expressed is a government interest because the school’s policy proscribed and controlled conduct in the school.
Moreover, the court stated that the undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. In addition, Congress acting in the interests of school officials must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint to justify the prohibition of a particular expression of opinion.
Furthermore, the court maintained that the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible. The court stated that the restrictions of expression, within schools, are counter to that teaching.
The court concluded that students are entitled to freedom of expression of their views in the absence of a specific showing of constitutionally valid reasons to regulate their speech.
In Papish v. Board of Curators, 410 U.S. 667 (1973), the court held that expelling the student for this speech violated the First Amendment because it was political speech, it appeared in an off-campus newspaper, it occurred at a university, and there was no showing of any disruption of the schools activities.
The court rejected the student speech claims and sided with school authorities.
In Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the court discussed whether the First Amendment prevents a school district from disciplining a high school student for giving a lewd speech at a school assembly.
The court held that the First Amendment, as applied through the Fourteenth, permits a public school to punish a student for giving a lewd and indecent, but not obscene, speech at a school assembly.
In addition, the court reasoned that the concerning speech or action intrudes upon the work of the schools or the rights of other students. Thus, it is highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.
Moreover, the court contended that the determination of the manner of speech that is inappropriate in the classroom or in school assembly properly rests with the school board.
The court stated that schools as instruments of the state may determine that the essential lessons of civil mature conduct cannot be conveyed in a school that tolerates lewd, indecent or offensive speech and conduct such as that made by this confused boy. In addition, the penalties imposed in this case were unrelated to any political viewpoint.
Furthermore, the court stated that the First Amendment does not prevent the school officials from determining when to permit a vulgar and lewd speech such as the respondents which would undermine the school’s basic educational mission. In addition, the court maintains that the rule sanctions all speech of this type.
The respondent’s speech may well have been protected had he given it in school but under different circumstances where the school’s legitimate interests in teaching and maintaining civil public discourse were less weighty.
Justice Marshal dissenting
The justice stated that where speech is involved the court may not unquestioningly accept a teachers or administrators assertion that certain pure speech interfered with education.
In Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the court discussed whether the First Amendment requires a school to tolerate particular student speech-the question that the court addressed in Tinker is different from the question of whether the First Amendment requires a school affirmatively to promote particular student speech. Moreover, the extent to which educators may exercise editorial control over the contents of a high school newspaper produced as part of the schools journalism curriculum.
Here, the school newspaper was to publish two objectionable articles scheduled to appear in an edition concerning experiences with pregnancy and the impact of divorce on students at the school.
The court reasoned that students in the public schools do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. Moreover, the First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and thus must be applied in light of the special characteristics of the school environment.
The court contended that a school is not required to tolerate student speech that is inconsistent with its basic educational mission even though the government could not censor similar speech outside the school. Moreover, the court stated that determining speech censorship properly rests with the school board.
In addition, the court discussed whether Spectrum, the school newspaper, may appropriately be characterized as a forum for public expression.
Furthermore, the court maintained that the school officials did not deviate in practice from their policy that production of spectrum was to be part of the education curriculum and a regular classroom activity.
The court reasoned that these activities may fairly be characterized as part of the school curriculum whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.
In addition, the court stated that educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach. And that the readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.
Therefore, the court stated that a school may, in its capacity as publisher of a school newspaper or producer of a school play “disassociate itself, not only from speech that would substantially interfere with its work…or impinge upon the rights of other students.” In addition, a school may disassociate itself from speech that is ungrammatical, poorly written, inadequately researched, prejudiced vulgar, profane, or unsuitable for immature audiences. In consequence, the school may refuse to disseminate student speech that does not meet those standards.
In addition, the court maintained that a school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics that might range from the existence of Santa Clause in an elementary school setting to the particulars of teenage sexual activity in a high school setting.
Moreover, a school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with the shared values of a civilized social order, or to associate the school with any position other than neutrality on matters of political controversy.
The court concluded that the educators do not offend the First Amendment in exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.
Justice Brennan with whom Justice Marshall and Blackmun dissenting
In Morse v. Frederick, 551 U.S. 393 (2007), the court discussed the bong hits for Jesus banner.
The constitutional rights of students in public school are not automatically extensive with the rights of adults in other settings. The court cited Bethel School Dist. No. 403 v. Fraser (1986), stating that the “rights of students must be applied in light of the special characteristics of the school environment,” Hazelwood School District v. Kuhlmeir, 484 U.S. 260 (1988).
The court contended that the manner of the message was illegal.
Moreover, the court stated that the school districts rules expressly provide that pupils in approved social events and class trips are subject to district rules for student conduct.
In addition, the court maintained that the student cannot “stand in the midst of his fellow students during school hours at a school sanctioned activity and claim he is not at school.”
The court discerned no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.
Furthermore, the court stated that the case is not about political debate over the criminalization of drug use or possession, and thus the mode of analysis set forth in Tinker is not absolute.
The court reasoned that while children assuredly do not shed their constitutional rights at the schoolhouse gate, the nature of those rights is what is appropriate for children in school.
In addition, the court maintained that deterring drug use by schoolchildren is an important indeed perhaps compelling interest, and the First Amendment does not require schools to tolerate, at school events, student expression that contributes to those dangers.
Justice Thomas concurring
Justice Alito and Kennedy join concurring
Justice Breyer concurring
Justice Stevens Dissenting
In Board of Education, Island Trees Union Free School District v. Pico, 457 U.S. 853 (1982), the court discussed whether the First Amendment rights of students may be directly and sharply implicated by the removal of the books from a school library.
The court held that the First Amendment protects a right to receive information and that the special characteristics of the school make that environment especially appropriate for the recognition of the First Amendment rights of students. Moreover, our constitution does not permit the official suppression if ideas.
The court implemented the violation test whereas the removal of the books from their school libraries violated the First Amendment depends upon the motivation behind the government’s action. If the petitioners intended, by their removal decision, to deny respondents access to ideas with which the petitioners’ disagreed, and if their intent was the decisive factor in petitioners’ decision then the petitioners exercised their discretion in violation of the Constitution. In alternative, an unconstitutional motivation would not be demonstrated if it were shown that petitioners had decided to remove the books at issue because those books were pervasively vulgar.
Moreover, the court stated that a school board could not make these choices based on the political party affiliation or ideology of the authors.
The courts turn on the content of the speech when striking the balance between deferring to the schools’ inevitable choices and preventing school censorship of ideas or forms of expression that are unpopular, especially with some school board members.
Furthermore, the court concluded that the prohibition of content-based discrimination is at the core of the First Amendment, and this is an area where content-based choices are inevitable.
HOW HAS THE COURT ADDRESSED THE SPEECH RIGHTS OF GOVERNMENT EMPLOYEES?
In Pickering v. Board of Education, 391 U.S. 563 (1968), the court held that the government may not punish the speech of public employees if it involves matters of public concern unless the state can prove that the needs of the government outweigh the speech rights of the employee.
In addition, the court stated that the speech by public employees is clearly less protected than of the private speech. Moreover, the court contended that the First Amendment protection does not exist unless the expression is about public concern and even then the employee can be disciplined or fired if the government can show on balance that the efficient operation of the office justified the action.
In Garcetti v. Ceballos, 547 U.S. 410 (2006), the court discussed whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employees official duties.
The court held that such speech is not protected if it is by a government employee while on the job and as part of his or her duties.
In addition, the court contended a significant new limit on constitutional protection for the speech of government employees.
The court reasoned that barring First Amendment claims based on "government employees' work product," as the court characterized the speech at issue, would not prevent those employees from participating in public debate.
Here, the district attorney investigated an affidavit that the defense attorney claimed to contain false statements.
The unchallenged dogma was that a public employee had no right to object to conditions placed upon terms of employment including those which restricted the exercise of constitutional rights.”
The court stated that the speech here was qualified because it was made in the course of official public duties.
Moreover, the public employees did not surrender all their First Amendment rights because of their employment.
Rather, the court contends that the First Amendment protects a public employee’s rights in certain circumstances to speak as a citizen addressing matters of public concern.
If the employee is not speaking as a citizen addressing matters of public concern then the employee has no First amendment cause of action based on his or her employer’s reaction to the speech.
But, if the employee is speaking as a citizen addressing matters of public concern then the possibility of a First Amendment claim arises.
In addition, the court discussed whether the reliable government entity had an adequate justification for treating the employee differently from any other member of the general public.
The court stated that a government entity has broader discretion to restrict speech when it has some potential to affect the entity’s operations.
Moreover, the court reasoned that when a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.
The government employers like private employers need a significant degree of control over their employee’s words and actions. The court stated that without a significant degree of control over employee’s speech, there would be little chance for the efficient provision of public services. Moreover, the public employees often occupy trusted positions in society. In consequence, when the employees speak out they can express views that contravene governmental policies or impair the proper performance of government functions.
The court ruled that the First Amendment limits the ability of public employer to leverage the employment relationship to restrict incidentally or intentionally the liberties employees enjoy in their capacities as private citizens. So long as employees are speaking as citizens, about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate more efficiently and effectively.
The fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case-distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline.
The court reasoned that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the constitution does not insulate their communication from employer discipline.
But, the court contended that restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.
In addition, the court stated that employers have heightened interests in controlling speech made by an employee in his or her professional capacity.
Furthermore, when an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences.
However, when the employee is simply performing his or her job duties there is no warrant for a similar degree of scrutiny.
Justice Stevens dissenting
The justice stated that the private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government’s stake in the efficient implementation of policy and when they do public employees, who speak on these matters in the course of their duties should be eligible to claim First Amendment protection.
In Pickering v. Board of Education, 391 U.S. 563 (1968), the court stated that in between these points lies a public employee’s speech unwelcome to the government but a significant public issue. Moreover, such an employee speak as a citizen that is with a citizens interests is protected from reprisal unless the statements are too damaging to the government’s capacity to conduct public business to be justified by any individual or public or public benefit thought to flow the statements.
Justice Breyer dissenting
The court discussed whether the speech at issue is professional speech.
Moreover, the court contended that the speech is subject to independent regulation because of the profession.
Furthermore, the court stated that the government’s own interest is diminished in forbidding that speech.
In addition, the court reasoned that the prosecutor has a constitutional obligation to learn to preserve and to communicate with the defense about exculpatory and impeachment evidence in the government’s possession.
Thus, the court should apply the Pickering balance test.
CONNECTED
A feeling is inside of me, being around me and beside of me
A slight breeze that no one sees resides to be set free
Sometimes living on a sidewalk sideways serenaded by the sound
Where there is dew drops, poppy cocks, and dragonflies all around
We might want a many, only get a few
But, we do not control what destiny wants to do
SECTION T
HOW HAS THE COURT ADDRESSED THE FREEDOM OF ASSOCIATION?
The court discussed when the government may prohibit or punish membership in a group when the government may require disclosure of membership, particularly where disclosure will chill the association.
In addition, the court discussed when the government may “force” association by requiring contributions.
Moreover, the court discussed when freedom of association protects a right of groups to discriminate.
The court held that the government may punish membership only if it proves that a person actively affiliated with a group, knowing of its illegal objectives and with the specific intent to further those objectives.
Furthermore, the court stated that the inquiry is allowed only if it is narrowly focused on whether a person actively affiliated with a group that advocated the overthrow of the government, knowing of its goals and with the specific intent to further them.
HOW HAS THE COURT ADDRESSED LAWS REQUIRING DISCLOSURE OF MEMBERSHIP?
In NAACP v. State of Alabama, ex rel Patterson (1958), the court discussed when the information of a group should be turned over to the attorney general.
The court held that the attorney general needs an overriding valid interest to disclose information regarding a protected association.
The state cannot pursue the goal by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.
HOW HAS THE COURT ADDRESSED LAWS PROHIBITING DISCRIMINATION?
In Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), the court held that the freedom of association would protect a right to discriminated only if it is intimated association where the discrimination is integral to express activity.
Here, the court discussed the sex and age restrictions proscribed in the association’s bylaws.
The court concluded that the antidiscrimination laws served as a compelling interest.
In Hurley v. Irish American Gay Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), the court held that the protected expression in a parade is not limited to its banners and songs, however, for the Constitution looks beyond written or spoken words as mediums of expression. Not many marches are beyond the realm of expressive parades.
Here, the court discussed the rights of the association involved in the gay, lesbian, and bisexual Irish parade.
The court stated that if a parade or demonstration receives no media coverage it may as well not have happened. Thus, the court concluded that parades are a form of expression not just motion and the inherent expressiveness of marching to make a point explains our cases involving protest marches.
In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the court discussed whether the rights of free association protect a gay scout leader in a private organization.
HOW HAS THE COURT ADDRESSED FREEDOM OF THE PRESS?
The court discussed whether the press is entitled to any protections that are greater under the First Amendment of the U.S. Constitution.
In addition, the court questioned if the freedom of the press provides the media with a shield that it can use to immunize itself from government regulation.
Moreover, the court discussed whether the freedom of the press can be used as a “sword” to gain access to government places and papers.
HOW HAS THE COURT ADDRESSED FREEDOM OF THE PRESS AS A SHIELD TO PROTECT THE PRESS FROM THE GOVERNMENT AND TAXES ON THE PRESS?
The Supreme Court consistently held that taxes which single out the press are unconstitutional, but the press can be required to pay general taxes applicable to all businesses.
In Minneapolis Star & Tribune Co. v. Minnesota commissioner of revenue, 460 U.S. 575 (1983), the court held that a tax with no compelling reason is discriminatory.
Here, the court discussed the tax on printing supplies.
REFLECTION REVERSAL
As I look in the mirror things could not be clearer than a hologram
Shining light through the dimensional diagram
Seemingly transparent in clairvoyant notions of magical potions
Revolving motions of cathartic commotions
The mirror shatters but is not broken
Bound by mental parades to the musical devotion
Loving sensations feeling life’s texture
Are smoothed by a glowing conjecture
Timely answers shower drops of peace
Washing clean the nefarious streets
TUNNEL ENVISIONED
Look into my eyes and you will realize my darkness creates a sunrise
Shining terrible thoughts buried deep in my iris
Colors spinning of profound desire embedded in Osiris
Blessed with some time by the great divine
Further reincarnated in fleshy wine
Preordained with the particular purpose
To bring the Sirius souls to the surface
SECTION U
HOW HAS THE COURT ADDRESSED THE APPLICATION OF GENERAL REGULATORY LAWS?
In Cohen v. Cowles Media Co., 501 U.S. 663 (1991), the court held that the newspaper is liable when the source name was revealed.
HOW HAS THE COURT ADDRESSED KEEPING REPORTERS’S SOURCES AND SECRETS CONFIDENTIAL?
In Branzburg v. Hayes, 408 U.S. 665 (1972), the court discussed whether a reporter is required to be a witness in court.
The court held that the same citizen standards apply to determine when a reporter does not have to be a witness in court.
HOW HAS THE COURT ADDRESSED THE FIRST AMENDMENT FREEDOM OF RELIGION?
In U.S. v. Ballard, 322 U.S. 78 (1944), the court discussed the defendant’s claim of supernatural powers.
The court held that the sincerity and dept of respondents’ religious doctrines or beliefs should not have been submitted to the jury.
Justice Jackson dissenting
The justice contended that the First Amendment foreclosed inquiry into both the truthfulness of the defendants' religious claims and their sincerity.
Furthermore, the court stated that the trial judge ruled that the court could not try whether the statements were untrue but court inquire whether the defendants knew them to be untrue; and if so, they could be convicted.
HOW HAS THE COURT ADDRESSED THE CURRENT TEST: A COMPELLING INTEREST?
In Employment division, Dept. of Human resources of Oregon v. Smith, 494 U.S. 872 (1990), the court discussed illegal drugs for religious practices.
The court held that the Free Exercise Clause permits the State to prohibit sacramental peyote use and thus to deny unemployment benefits to persons discharged for such use. In addition, the court held that neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment.
Here, the court denied unemployment benefits based on religious beliefs when employees were terminated for peyote use in religious ceremonies.
The court stated that the free exercise of religion means the right to believe and profess whatever religious doctrine one desires. The government may not compel the affirmation of religious beliefs, punish the expression of religious doctrines it believes to be false, impose special disabilities based on religious views or religious statutes. In addition, the government may not lend its power to one or the other side in controversies over religious status and in controversies over religious authority or dogma.
Justice O’ Connor, Brennan, Blackmun, and Marshall concurring
The justices contend that the issue requires strict scrutiny. In addition, the court held that the law tolerates burdens on the free exercise of religion that serve a clear and compelling governmental interest, and the laws are narrowly tailored to meet that interest.
Jusice Blackmun, Brennan, and Marshall dissenting
Blackmun expressed concern for the severe impact of a state's restrictions on the adherents of a minority religion. The justice contended that eating peyote is an act of worship and communion, a means for communicating with the Great Spirit. If Oregon is a hostile environment in which to practice the Native American religion, then its adherents might be forced to migrate to some other and more tolerant region. Blackmun felt it inconsistent with First Amendment values to denigrate an unorthodox religious practice in this way.
HOW HAS THE COURT ADDRESSED THE LAW BEFORE EMPLOYMENT DIVISION V. SMITH?
In Sherbert v. Verner, 374 U.S. 398 (1963), the court discussed whether denying unemployment for not working on the Sabbath violated the Free Exercise Clause of the First Amendment.
In addition, the Supreme Court held that the Free Exercise Clause of the First Amendment required that government demonstrate a compelling government interest before denying unemployment compensation to someone who was fired because her job conflicted with her religion.
Justice Harlan, and White dissenting
The justices stated there being no compelling state interest.
In Church of the Lukumi Babau Ae, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the court discussed the issue of religious animal sacrifice.
The states cannot restrict religiously mandated ritual slaughter of animals, regardless of the purpose of the slaughter.
In addition, the court contended that devotion is an animal sacrifice.
In Cutter v. Wilkinson, 544 U.S. 709 (2005), the court held that under the Religious Land Use and Institutionalized Persons Act (RLUIPA), prisoners in facilities that accept federal funds cannot be denied accommodations necessary to engage in activities for the practice of their own religious beliefs.
In Locke v. Davey, 540 U.S. 712 (2004), the Supreme Court decision held that the Washington publicly funded scholarship program excluding students pursuing a degree in devotional theology was constitutional under the Free Exercise Clause and the Establishment Clause.
Here, the court stated that the scholarship was revoked for a pursuing a major in theology.
Justice Scalia, and Thomas dissenting
HOW HAS THE COURT ADDRESSED THE ESTABLISHMENT CLAUSE?
The court discussed three major competing theories of the Establishment Clause.
First, the court defined the strict separation approach by stating that government and religion should be separated to the greatest extent possible.
In specific, the court contends that there should be a wall separating church and state.
The court reasoned that the strict separation of church and state is necessary to protect religious liberty.
But, the court stated that the complete prohibition of all government assistance to religion would threaten the free exercise of religion.
Moreover, the court contended that a complete separation of church and state is impossible and the issue becomes how to draw the appropriate line.
Second, the court defined the neutrality theory as an approach to the Establishment Clause stating that the government must be neutral on religion.
Moreover, the government cannot favor religion over secularism or one religion over others.
But, the court contends that it is difficult in determining what government actions constitute a symbolic endorsement or religion.
Furthermore, the court interpreted the accommodation approach under the Establishment Clause to recognize the importance of religion in society and accommodate its presence in government.
Under the accommodation approach, the government violates the Establishment Clause only if it literally establishes a church or coerces religious participation.
Furthermore, the court contends that government discrimination among religions meets the standards for strict scrutiny.
HOW HAS THE COURT ADDRESSED THE LEMON TEST FOR THE ESTABLISHMENT CLAUSE?
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the court held that the statutes offering church related educational aid are unconstitutional under the Religion Clauses of the First Amendment, as the cumulative impact of the entire relationship arising under the statutes involves excessive entanglement between government and religion.
The court determined that the statues were unconstitutional by applying the Lemon test.
In addition, the court stated the Lemon test analyzes whether the law has a secular purpose, a secular effect, and involves excessive entanglement between government and religion.
Moreover, the court must determine that the law as no secular legislative purpose and the secular effect of the law must be one that neither advances nor inhibits religion.
Furthermore, the court contended that the First Amendment forbids government actions that cause excessive entanglement with religion.
The religious group access to school facilities discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment. The court expressly rejected the dissenting argument.
The Court concluded that excluding religious speech was not necessary in order to be consistent with the Establishment Clause. The court applied the Lemon test and stated that opening school facilities to all groups deserved the secular purpose of providing a forum for student meetings.
HOW HAS THE COURT ADDRESSED STUDENT RELIOUS GROUPS’ RECEPT OF GOVERNMENT FUNDS?
In Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995), the court held that the University's denying funds available to other student publications, but not to a publication produced from a religious viewpoint, violates the First Amendment's guarantee of free speech. The University's assertion that the exclusion was necessary to avoid violating the Establishment Clause lacked merit because the funds were apportioned neutrally to any group meeting certain criteria that requested the funds.
Here, the court cited Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), in concluding that viewpoint discrimination is the proper way to interpret the University’s objections to the financial burden imposed by the Wide Awake publication.
Furthermore, the court stated that the ideologically driven attempts to suppress a particular point of view are presumptively unconstitutional in funding as in other context.
In Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the court held that the student-led, student-initiated prayer at high school home football games violates the Establishment Clause of the First Amendment.
The court reasoned that the school was on government land in a public forum.
HOW HAS THE COURT ADDRESSED RELIGIOUS SYMBOLS ON GOVERNMENT PROPERTY?
In McCreary County v. American civil liberties union of Kentucky, 545 U.S. 844 (2005), the court held that displaying the Ten Commandments on the courthouse walls and schools violated the Establishment Clause of the First Amendment.
The court stated that the county was advancing religion.
In Van Orden v. Perry, 545 U.S. 677 (2005), the court held that the Ten Commandments monument near the state capitol was constitutional because it represented historical social meaning rather than an intrusive religious endorsement.
In Engel v. Vitale, 370 U.S. 421 (1962), the court held that government-directed prayer in public schools violates the Establishment Clause of the First Amendment, even if the prayer is denominationally neutral and students may remain silent or be excused from the classroom during its recitation.
In Lee v. Weisman, 505 U.S. 577 (1992), the court held that including a clergy-led prayer within the events of a public high school graduation violates the Establishment Clause of the First Amendment.
See also, Final Report on the August 14, 2003 Blackout in the United States and Canada (Blackout Report).