Last Class Quick Recap

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Last Class(Quick Recap)

• XX. Freedom of Religion
• A. Natural Antagonism
• B. Establishment Clause
• 1. General Principles
• 2. School Vouchers
• 3. Public Displays

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What we will cover today

• XX. Freedom of Religion
• C. Free Exercise

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Four Possible Positions on Religion Clauses

• 1. strong on FE and strong on EST
• 2. weak on FE and weak on EST
• 3. strong on FE and weak on EST
• 4. weak on FE and strong on EST

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Four Possible Positions on Religion Clauses

• 1. strong on FE and strong on EST
• 2. weak on FE and weak on EST
• 3. strong on FE and weak on EST
• 4. weak on FE and strong on EST

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XX. Freedom of ReligionC. Free Exercise
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The First Amendment

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  Government for a redress of grievances.

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Sherbert v. Verner

• (1963)

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Wisconsin v. Yoder

• (1972)

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Hypothetical E

• The Eagle Protection Act and the Endangered
  Species Act make it illegal to kill or possess
  eagles.
• Nathan Jim, Jr. is a member of the Yakima Indian
  Nation which uses eagle feathers in various
  religious rites

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Hypothetical E (cont.)

• preschool boys and girls receive feathers to help
  them acquire power and direction in life
  families tie eagle carcasses to their door ports
  for luck and feathers at funerals help guide
  tribesmembers passage into the new world.

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Hypothetical E (cont.)

• However, outside the Native American community,
  there is a large black market for eagles. The
  black market is lucrative with a bald eagle
  selling for as much as 10,000 and a single
  feather bringing as much as 35.

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Hypothetical E (cont.)

• Nathan Jim was apprehended with 10 eagles in his
  truck.
• The evidence reveals that he planned to use them
  in funeral rites.
• Jim claims that, without the birds, Yakima
  Indiana cannot bury their dead in peace.

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Hypothetical E (cont.)

• Jim is charged with violating the Eagle
  Protection Act and the Endangered Species Act,
  and he faces a possible sentence of three years
  in prison and a 300,000 fine. Can Jim defend
  against the charges based on the Free Exercise
  Clause?

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Hypothetical E ANSWER

• After Employment Division v. Smith, the state is
  not required to grant an exemption.
• This is a neutral, generally applicable, criminal
  law.

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Employment Division v. Smith
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Church of Lukumi Babalu Aye v. City of Hialeah
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Locke v. Davey
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Class Summary

• XX. Freedom of Religion
• C. Free Exercise

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Exam Tips

• Take time to OUTLINE
• Keep track of TIME
• Use ANSWER FORMAT

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Strongly Suggested Answer Format

• Try to use headings and other signposts.
• Avoid using I, R, A or C as signposts.
• Use ANSWER FORMAT phrases with answer sections.

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Strongly Suggested Answer Format

• (1) ISSUES find them
• (2) RULES applicable legal rules and
  theory
• (3) ANALYSIS apply facts to law
• (4) CONCLUSION

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Strongly Suggested Answer Format

• I. The issue is . . .
• R. As a rule,
• As a general rule,
• The majority rule . . .
• The rule from _________
• In law, the Court has ruled . . .

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Strongly Suggested Answer Format

• A. Here,
• In this case,
• In the matter at hand,
• x x x (other direction)
• On the other hand,
• Alternatively,
• x x x (emphasize additional facts)
• In addition . . .
• Moreover, . . .

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Strongly Suggested Answer Format

• C. In my view, . . .
• For the reasons discussed
• above . . .
• Accordingly, . . .
• Because (important rationale),
• the Court should . . .

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Sample Score Matrix

• Maximum Points (30)
• Law (10 pts)
• Accurately states applicable law, lists all
  elements/factors if relevant
• Includes applicable law, some vagueness
• Has some of the applicable law, incomplete or not
  well stated
• Inaccurate law, elements missing
• Analysis (15 pts)
• Thoroughly uses facts, shows application, very
  good depth of analysis
• Uses some facts, shows some application, good
  depth of analysis
• Limited use of facts, application is conclusory
• Poor use of facts, not well-connected to legal
  rules more recitation than analysis
• Additional Considerations (5 pts)
• Answer well organized, uses answer format well
• Demonstrates understanding of theory underlying
  legal rules
• Addresses counterarguments
• Presents novel/creative argument or use of facts

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The End