American Constitutionalism in Historical Perspective (packet)

Douglas dissents, majority is assuming parent and child are one unit but child’s interest may be distinct from parents. (later used in abortion rights cases where woman’s rt trumps her parents). The children should be asked, may not want to stay on the farm.

D/n extend free exercise relief:

1. 
   pp. 1528- 33: W/ US v. Lee (Amish must pay Social Security tax), Bob Jones University, Goldman (below),O’Lone, and Lyng
   
2. 
   Goldman v. Weinberger, 1986: Court rejects free exercise claim of practicing Jew who wants to be able to wear his yamulke with his military uniform. Find state interest in uniformity trumps his religious freedom interests. Backing away from broad stance in Yoder.
   
3. 
   Employment Division v. Smith, 1990: p. 1533 D was fired and then denied unemployment benefits b/c of his religious use of peyote. Upholds the firing and denial of benefits b/c the law is not aimed at religion, it only indirectly affects it, so state d/n have to show a compelling secular purpose. Distinguishes earlier cases, d/n want the court assessing valid state purposes across the board. Wants these issues resolved politically.
   
   1. 
      Worried about religious const objection to any general criminal laws not supported by harm principle in US. Worries this precedent would have in other areas.
      
   2. 
      Privacy argument (conviction on use of contraceptives as core to their integrity and weak state interest) follows free exercise jurisprudence that would have happened if majority h/n turned out this way.
      
   3. 
      O’Connor concurrence: Burden on religion b/c criminalizing something used in core of religious rituals requires examining compelling state purpose which is present here.
      
   4. 
      Dissent: peyote d/n have high level of harms as other drugs and often groups who use these drugs control the use among each other and lower/regulate harms. D/n resemble reasons for criminalizing other drugs (crack cocaine).
      
4. 
   In response to Smith, Congress passed Religious Freedom Restoration Act requiring free exercise analysis when neutral laws burden religious exercise w/out compelling justification. Required compelling interest test of Sherbert and Yoder to supersede Smith. Later struck down in Boerne v. Flores under Marbury analysis, need to persuade ct that Smith is wrong, c/n pass statute to strike it down.
   

The Anti-Establishment Clause (pp. 1500-1553)

1.