PLS 315-01

19th cent.: dominated by protestants

  • early days of 1st amendmt.
  • remains majority today
  • most officeholders still prot.
  • Protestantism gets lots of accommodation
  • toleration in 19th cent
    • anti catholic
    • toleration mainly for prot
    • catholic toleration basically an afterthought
  • some tests for public office
  • blasphemy laws, sabbath laws still on books
  • “culture of establishment” persists
  • Christian (Protestant) nation
  • religion in public school
  • influx of Catholics forces disestablishment in schools

2 religion clauses to First Am

  1. establishment
  2. free exercise
    • to what extent can law burden free ex?
    • generally, law cannot target specific religious practices
    • laws that don’t specifically target but impose burdens: law of gen. application
      • applies to all, burdens some
    • OK to prohibit direct bodily harm (sacrifice, snake handling, etc)

Models

  • Communitarian
    • narrow range of practices
    • majority (Protestant) practice
    • practices offensive to the majority population may be regulated
  • Libertarian
    • broad range of practices
    • no direct bodily harm

Mormon cases

  • among earliest cases to reach SCOTUS
  • statehood of UT v. polygamy
    • federal territory = fed. jurisdiction
    • First Amendment applicable
    • 1862: Morrill Bigamy Act (polygamy)
      • challenged on fed grounds
      • produces Reynolds v. US (1879)

1st Am. jurisprudence makes distinctions between belief v. action

  • protects belief w/o limit
  • allows regulation of practice

Law of gen. app.

  • no bigamy
  • burdens free ex. for LDS
  • 1st am require exemption for Mormons?

Rational basis test/secular regulation rule

  • law has rational basis/goal
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