- In 1940, the Supreme Court decided Minersville School District v. Gobitis. Just three years later, in 1943, the Supreme Court decided West Virginia State Board of Education v. Barnette. Both cases arose out of the refusal of children to salute the flag based on their religious beliefs. The Supreme Court, in Gobitis, upheld the expulsion of the children due to their refusal to salute the flag. The Supreme Court, in Barnette, overruled Gobitis and found the West Virginia statute requiring children to salute the flag to be unconstitutional. It is very rare for the Supreme Court to completely change its position on an issue in so short a period of time. Why do you think this happened?
- In Prince v. Massachusetts (1944), the Court was confronted with the following situation: Mrs. Prince permitted children in her care to distribute Jehovah’s Witness literature on a street corner. Massachusetts’ child labor laws prohibited children from selling newspapers, magazines or periodicals on any street or public place. Mrs. Prince was prosecuted and convicted and argued that the statute violated her freedom of religion. The Court, in an opinion written by Justice Black, decided that it did not. Justice Murphy dissented. Who do you agree with – Justice Black (in the majority) or Justice Murphy (in dissent). Why?
- The question before the Supreme Court in Torcaso v. Watkins (1961) was whether the State of Maryland could require a notary public, as a condition of receiving his or her commission, to swear to an oath expressing the “belief in the existence of God.” This meant that an atheist could not become a notary public. The Supreme Court declared the statute to be unconstitutional. The State of Maryland argued that Torcaso’s rights were not violated because no one had a right to hold public office. What is your view with regard to this argument?
- In Sherbert v. Verner (1963), the Supreme Court held that a state could only burden the free exercise of religion if to do so would achieve a “compelling state interest” and that there was no less restrictive means to accomplish the compelling state interest. In Employment Division v. Smith (1990), the Supreme Court essentially did away with the Sherbert test and held that “[I]f prohibiting the exercise of religion … is not the object of the [law in question] … but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” What is the name of the statute that Congress passed in 1993 to put back in palce the Sherbert “compelling interest” test?
- Here are two examples in which Congress “fixed” a problem created by a Supreme Court opinion. In Employment Division v. Smith (1990), the Supreme Court upheld the denial of unemployment benefits to persons who were dismissed from their jobs
because they ingested a hallucinogenic (peyote) for religious purposes at a ceremony of the Native American Church. In 1994, Congress passed amendments to the American Indian Religious Freedom Act which made lawful the use of peyote for bona fide ceremonial purposes in connection with the practice of a traditional Indian religion. In Goldman v. Weinberger (1986), the Supreme Court upheld an Air Force policy which prohibited an Orthodox Jewish serviceman from wearing a yarmulke (a skullcap) while on duty. Justice Brennan, in dissent, stated: “The Court and the military have refused these servicemen their constitutional rights; we must hope that Congress will correct this wrong.” That is precisely what happened. In 1988, Congress passed a statute that stated that “a member of the armed forces may wear an item of religious apparel while wearing the uniform of the member’s armed force.” These are two examples in which Congress stepped in to pass a statute to effectively nullify the impact of a Supreme Court decision. Earlier in the course, however, we studied Marbury v. Madison (1803), which held that the Supreme Court was the ultimate authority on issues of constitutionality. Here’s the question: Explain how Congress could have acted in these matters without violating the principle that the Supreme Court – not Congress – is the ultimate authority on issues of constitutionality?
