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Greetings from the Kansas Supreme Court and the Kansas Bar Association. This is the second edition of Law Wise for the 2003-2004 school year. The theme of the October edition of Law Wise is An Overview of the Establishment Clause.
Calendar of Events
Overview of the Establishment Clause
Is Separation of Church and State in the Constitution?Separation of Church and State was a fundamental belief of the Founding Fathers. If this pillar of American government is so important, it must be in the Constitution, right? Not exactly. The First Amendment to the United States Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ." The phrase "separation of church and state" has come to symbolize this portion of the First Amendment.
Definition of the Establishment ClauseThe portions of the First Amendment relating to religion quoted above are divided into two sections. The first part, "Congress shall make no law respecting an establishment of religion," is called the Establishment Clause. The rest is the Free Exercise Clause. Most legal issues respecting religion were left to the states to resolve. As America grew, more citizens and immigrants practiced varying religions and problems arose. The Supreme Court used the due-process clause of the 14th Amendment to apply the Establishment Clause (and the rest of the First Amendment) to the states. The Due Process Clause says, "No state shall deprive any person of liberty without the due process of law." Freedom from state establishment of religion is one of those liberties.
Courts' Application of the Establishment Clause in Alabama
When the Chief Justice of the Alabama Supreme Court, Roy Moore, displayed a monument of the Ten Commandments in the Alabama state courthouse, local attorneys sued, claiming that the monument violated the prohibition against the Establishment Clause. They were concerned their clients would not get a fair hearing if their religious beliefs were not the same as Justice Moore's beliefs. They argued that the display promoted religion, specifically Christianity, and that jeopardizes the right to religion freedom.
Those who support Justice Moore have said that the lawsuit aims to prohibit Moore from exercising his First Amendment right to the free exercise of religion. They also say that since he was an elected judge, if the people are unhappy, they should use democratic and electoral means to remove him from his position. Moore said that the decision to remove the monument constituted "wrongful interference of state government" and that "[s]eparation of church and state never was meant to separate God from our government."
The monument was removed from the Alabama Supreme Court, but the debate about the meaning and application of the Establishment clause continues in courts across the country. The judicial opinions appear inconsistent and different U.S. Supreme Court justices apply different tests to determine if the subject at issue amounts to a state establishment of religion. Often the distinctions are difficult to see. Although the Ten Commandments were removed in Alabama, "In God We Trust" is printed on our money. Prayers should not be offered in public schools, but Christmas is a national holiday and state-funded vouchers may be used to send students to religious schools.
In 2003, the Kansas Bar Foundation (KBF), through IOLTA grant funding to the Kansas Bar Association's Law Related Education Committee, approved a $500 minigrant to use for the creation and the facilitation of the Shawnee County Youth Court Project.
Shawnee County District Court Judge David Bruns chairs the Adult Advisory Committee. This is a group that advises the Topeka Shawnee County Youth Court, mentors the students, trains the participants, evaluates the program and promotes the youth court throughout the community. The committee has a great mix of community leaders, including Kansas Supreme Court justices, Kansas Court of Appeals judges, a U.S. district court judge, Shawnee County district judges, Municipal Court judges, the Topeka Mayor, two county commissioners, law professors, the Topeka police chief, the Shawnee County sheriff, a Kansas Bureau of Investigation agent, school superintendents, teachers, and parents.
The project's goals include: providing a basic knowledge of the workings of the judicial system; providing immediate consequences to first time, minor offenders; creating a new avenue of community service for both offenders and nonoffenders; providing the offender with a better understanding of the effects of the offense; and reinforcing the sense of responsibility that individuals should feel toward the community.
To participate in youth court, the offender admits guilt to the offense he/she is charged with and appears before the youth court for sentencing. Failure to comply with the sentence will result in referring the case back to the Shawnee County District Attorney for formal prosecution.
The court currently only handles traffic cases or offenses related to traffic, and the first three trials were for September 18. The trials are open to the public and the media. The program is voluntary, and there are 30 cases that have been referred by the Shawnee County District Attorney's Office and are scheduled for hearings in October and November.
Several factors are considered when determining the appropriate sentence:
Every spring, the Kansas Bar Association Young Lawyer's Section (KBA YLD) offers a statewide mock trial competition to high school students. This year's tournament will offer several regionals across the state, cumulating into a state tournament in which the winner will advance to the national tournament.
The National High School Mock Trial competition began in 1984, and offered students simulated courtroom experience with real lawyers available who will volunteer to help coach their teams. Additionally, lawyers and law professionals will act as the judge and jury during the tournaments. Students in your debate, forensics, government, speech, drama or gifted programs would find this tournament worthwhile and exciting. If you have never participated before, I encourage you to seriously considering entering at least one team from your school.
Teams for this competition consist of six to eight students and your school can enter as many teams as you would like. Registration fees are minimal, starting at $50.00 for the first team, with $25.00 for each additional team. However, in no event is any school required to pay more that $200.00, no matter the number of teams entered.
The regional tournaments will take place on March 5 - 6, 2004, and the state tournament will occur on April 2-3, 2004 in Wichita. The registration deadline for the competition is December 19, 2003. The case materials and rules will be available soon on the Internet at www.ksbar.org. A notice will be sent out to schools that register for the competition.
Eric Kraft and Alec Nguyen are the coordinators for this year's tournament. Eric can be reached at (913) 451-5109 or by e-mail at email@example.com. Alec can be reached at (316) 262-8085 or by email at firstname.lastname@example.org. You can also contact Btissam Touijer with the Kansas Bar Association at (785) 234-5696 or by email at email@example.com.
May 17, 2004, is the fiftieth anniversary of the United States Supreme Court's landmark decision in Brown v. Board of Education of Topeka, Kansas. The decision brought an end to the legal doctrine of "separate but equal," defended by the same court nearly sixty years earlier in Plessy v. Ferguson.
Brown not only struck down laws segregating public schools, but also made all Americans more aware of our constitution's promise of equality, and helped launch the civil rights movements.
Time to start planning for Law Day 2004:
Here are just a few key dates you need to know to start your planning.
The 8th Annual National Photography Contest for students ages 12-18. This contest gives students a chance to submit original photos that depict the Law Day theme. Prizes include national recognition, inclusion in a photo exhibit, U.S. savings bonds and educational materials. Winner of this prestigious contest receives the award in Washington, DC, as part of Law Day 2004.
Feb. 1, 2004: Postmark deadline for entries.
For more information please visit www.abanet.org/publiced/
Go to this address www.abanet.org/publiced/lawday/ and fill out the form to receive a FREE Law Day Planning Guide and Resource Guide.
November 2003 through Law Day: Guide distributed and available online
Feb. 15, 2004: Catalog orders postmarked by this date receive 10% discount
March 15, 2004: Catalog orders postmarked by this date receive 5% discount
The American Bar Association division for Public Education has produced a new "Dialogue on Brown v. Board of Education". Teachers, lawyers, and judges are encouraged to engage in dialogue with high school students about the history of the Brown decision and its continuing legacy in American law and society. Please visit www.abanet.org/brown/home.html and download the 8 - page brochure, which contains everything you need to start the discussion.
Visit www.lawday.org for more detailed information. The website has a wealth of Law Day information. You can also sign up for the Law Day email distribution list to receive updates throughout the year.
The ABA has a free newsletter that contains information on law-related education. Law Matters, which reports on developments, ideas, programs, and resources in the field of public education about the law, is published three times each year (winter, summer, fall). For information on ordering, contact the ABA at (312) 988-5735 or firstname.lastname@example.org.
The Law-Related Education Inventory has the following items that might be useful in discussing the Separation of Church and State:
The Law-Related Education Inventory has many resources to help teach about law-related topics. To order a catalog, call Btissam Touijer at the Kansas Bar Association, (785) 234-5696 or email email@example.com. The Kansas Bar Association and the lawyers in your community sponsor the Law-Related Education Inventory. The clearinghouse will mail free copies of law-related posters, games, mock trials, booklets, lesson plans, and other aids. It is open Monday through Thursday, 8:00 a.m. to 7:00 p.m., and Friday, 8:00 a.m. to 5:00 p.m. The director of the Teachers College Resource Center, which houses the Law-Related Education Inventory, Marla Darby, can be reached at Darbymar@esumail.emporia.edu/
The Kansas Court of Appeals, an 11-member, intermediate appellate court sits in three-judge panels. The court is pleased to have students attend the hearings. The Court of Appeals will next be hearing cases in Topeka, Kansas City, KS, and Wichita October 22-23. Two three-judge panels will sit in Wichita both days, one at the Sedgwick County Courthouse and the other at the "old" Sedgwick County Courthouse across the street. Meanwhile, panels also will hear appeals in the Wyandotte County Courthouse and Judicial Center in Topeka.
The Kansas Supreme Court is the highest court in the state, and includes seven members. Students are also welcome at oral arguments before the Supreme Court. The high court holds its hearings only in Topeka. The Supreme Court will be hearing oral arguments during the weeks beginning and October 27 and December 8. If you have any questions concerning the Kansas appellate courts, or if you would like to bring your class to either the Kansas Supreme Court or the Kansas Court of Appeals, teachers may contact Ron Keefover, Education and Information Officer of the Office of Judicial Administration, 301 West 10th Avenue, Topeka, Kansas 66612-1507, (785) 296-4872, for assistance. You can also contact Mr. Keefover via email at firstname.lastname@example.org.
Grade Level: 11
The following l7 Supreme Court decisions are the basis for discussion on lst Amendment Right, Freedom of Religion. Any and all can be discussed in depth or simply touched upon. The wide range of cases help students to understand that this "freedom" has limits and bounds and is constantly under attack.
Suggestion - Start study of Freedom of Religion with open-ended questions:
Once this groundwork has been laid, simply introduce the case by name -- writing on board or overhead helps. Also include the year, that helps students understand what was happening in the world and in the US, which may have influenced the court to rule as they did. Do NOT tell the students of outcome until they have exhausted arguments pro and con. Then, prior to announcing verdict, we have a show of hands for and against. Students will get quite involved with these.
Freedom of Religion:
School district transports all children to school, parochial kids too. Taxpayers are paying for bus and driver. Church not charged for their kids to ride. Their parents pay taxes anyway.
(Supreme Court - can't let church kids ride violates separation.)
Milivojevich - Bishop - fired without cause, appealed case on grounds fired unjustly.
(Supreme Court - this is strictly a church matter).
School granted release time for kids to go across street, church not big enough. School gives an empty classroom (supplies and teacher are those of the church), so release time for religious activity can take place within the school. McCollum objects on grounds of separation and establishment.
New York School Board OK's and composes a prayer, instructed each class to use it daily. Prayer is nondenominational. Is it OK? (Supreme Court says no). If not mandatory, just a moment of silence? Swear in President on Bible? In God We Trust on coins? National Anthem? Moment of silence?
Mormon practice of polygamy based on religious practice.
(Supreme Court says no.)
Students selected passages to read aloud in a public school - no interpretation. Students could be excused if they so wished. All parts of Bible read. Schemp says this is wrong - Why?
He is Jewish, he didn't excuse kids more damaging than being there. Of course, doesn't accept New Testament. Kids were not excused from class.
Legal - (Supreme Court says no.) Not teaching or supporting religion.
New York school system giving text books to all schools, including parochial schools. Books paid for by tax money. Violation of church and state?
(Supreme Court says no). No teaching or promoting religion.
School district compelled children to salute the flag. Jehovah Witness objected. Does mandatory regulations which go against religious grounds violate First Amendment?
(Supreme Court - illegal). What are our guidelines on pledge to flag?
Jewish community - pass laws to close businesses on Sunday - Sabbath. Non-Jewish businessman objects. Legal? Free Enterprise?
(Supreme Court not legal)
7th Day Adventist fined for refusal to work on Saturday - denied unemployment compensation.
(Supreme - ruling stands, can't change system)
Methodist-Episcopal church - religious beliefs forbid military training. State law requires course in Military Science/Training Tactic. Legal state law?
(Supreme Court - No)
Amish refuse to send kids to school. State law required mandatory education to age 16. Amish argument - state law threatens religious way of life. State's argument - prepares them for adult life Amish - don't need it.
State - what if they leave Amish community?
(Supreme Court - state law overruled giving an exemption). We change the system. They said they would not in l963.
Ballard arrested for using US mail to obtain money under false pretenses. Ballard - his own church
He had been "selected" by divine messenger
He was told to solicit money to carry out God's work.
Men may believe what we can't prove.
Do we need to prove his vision?
Does it matter if incident is real or not?
What if he is an actual Catholic priest?
What is religion? Should Court define it?
What is danger here?
May a single person establish his own religion?
Does his church need guidelines such as services?
Selective Service Act - exempts from combat any person who because of religious beliefs consciously objects to participation in war of any form - 3 men refused induction. Means - belief in Supreme Being - defined by Court. Seeger - When asked about belief in Supreme Being, said rather he had a belief in good and bad and war was bad, he believed he should do only good. Should he be exempted? Is he just trying to avoid the draft? Not exempted.
Gillette convicted of willful failure to report for induction into armed services. Stated - not opposed to war needed for national defense, or one sponsored by UN for peace keeping. Was drafted, went through Basic, when given orders to Vietnam, proceeded with conscientious objector status. Cited numerous religious texts - a devout Catholic, said his duty to judge what wars just, what are unjust.
(Supreme Court - exemption not allowed)
Native American arrested for use of peyote. Also arrested for snake handling. These are done in conjunction with religious ceremonies. People have died from either or both of these. If we legalize it, what about pot for your own church? Crack? Oregon State Law - illegal to possess peyote and/or use it.
The lesson plan was contributed to the Columbia Education Center by Bruce D. Berst. This lesson plan can be found at www.ofcn.org/cyber.serv/academy/ace/soc/cecsst/cecsst110.html
Grade Level: 9-12
The United States of America is a nation founded upon freedom. Our Founding Fathers attempted to frame a flexible document to live through the ages that would protect and promote freedom. It is the responsibility of the people in a democratic society to educate their children to understand our freedom, but also the responsibility that goes with it. The primary focus of this paper will be that of religious freedom. It is a sensitive subject area, but a critical one to developing an understanding of our rights as United States citizens. Students should learn to be open-minded, independent thinkers in this area so that freedom may be guaranteed throughout the ages.
The classroom atmosphere should be psychologically safe for all students to express their belief systems or questions regarding religion. Teachers should objectively present information and treat all students and their opinions with equal respect and dignity. Guidelines should be established up front on acceptable and unacceptable behavior so students may learn to listen to others, be open-minded in their approach, and respect different opinions.
The First Amendment of the Constitution state that "Congress shall pass no law respecting an establishment of religion, or prohibiting the free exercise thereof." The purpose of this lesson is to encourage critical thinking skills and open-minded thinking as to what our Founding Fathers struggled with to ensure religious freedom and why it is so important to continue this struggle. Hopefully, students will develop some insight as to why tension exists in this area and become aware of their Constitutional rights as United States citizens.
Students will be encouraged to think about "What is truth?" and how different people can have different interpretations, traditions, cultures, languages, and, ultimately, belief systems or religions to explain that truth. Students will examine various cultures and history to see how beliefs can be learned. Hopefully, an awareness of the importance of religious tolerance will be developed.
Students will be able to:
The following activities are designed to encourage independent thinking and create some insight into freedom of religion and religious tolerance.
Teachers should carefully lead the discussion to point out similarities and differences in the leaders and guide the discussion so that the class gets an objective, fair presentation.
What is the difference in teaching religious beliefs and studying history? Should schools be allowed to teach religious beliefs? Why do we have separation of Church and State? Should we have prayer in our schools? Can a government make you believe in God or not allow you to go to church? (Teacher should guide discussion and research.)
An Amish petitioner refused to permit children to attend school after the 8th grade and was convicted of violating the compulsory school attendance laws in Wisconsin. The state must compel the Amish to act against their religious convictions or it must allow a special exemption from the general law for certain religious groups. Refer to the original case and discuss the arguments and how the Supreme Court ruled.
Resources / Materials Needed:
There are countless resources available for information on the major religions of the world, their leaders, culture, etc. There are also countless resources available on the United States' Founding Fathers, the First Amendment to the Constitution, and Freedom of Religion. I simply utilized our school library and our school texts for research. An officer from the Denver Police Force addressed my students on cults and devil worship.
Tying It All Together:
Students need to learn to be open-minded and independent thinkers. They need to be taught why tolerance is important. Addressing freedom of religion with these activities will encourage open-minded, critical thinking skills. Hopefully, students will be encouraged to grow into educated individuals who love their freedom and are willing to accept the responsibility of guaranteeing freedom for all.
The lesson plan was contributed to the Columbia Education Center by Mary Ann Reichert, Annunciation School, Denver, Co. This lesson plan can be found at www.ofcn.org/cyber.serv/academy/ace/soc/cecsst/cecsst040.html
Law Wise is published by the Kansas Bar Association during the school year. The Kansas Bar Foundation, with Interest on Lawyers Trust Accounts funding, provides support for this publication. Published free, on request, for teachers or anyone interested in law-related education, it is edited by Crystal Marietta, Pittsburg, (620) 231-5620. For further information about any projects or articles, contact Ron Keefover, Education and Information Officer of the Office of Judicial Administration, Topeka, (785) 296-4872, or Btissam Touijer, Public Services Director of the Kansas Bar Association, Topeka (785) 234-5696. Law Wise is printed at the Kansas Bar Association, 1200 Southwest Harrison, P.O. Box 1037, Topeka, Kansas 66601-1037.