104 CHAPTER 4|CIVIL LIBERTIES
that gave rise to the Miller test, which is still applied today.^43 The test has three
standards that must all be met in order for material to be banned as obscene: if it
appeals to prurient interests, if it is “patently off ensive,” and if the work as a whole
lacks serious literary, artistic, political, or scientifi c value. The Court also clarifi ed
that local community standards are to apply rather than a single national standard.
Congress and the president also get in on the act of controlling obscenity. Recent
eff orts have focused on the Internet as a pornography medium. Congress passed
the Communications Decency Act in 1996, which criminalized the use of any
computer network to display “indecent” material, unless the provider could off er
an eff ective way of screening out potential users under age 18. The Court struck
down the law in 1997 because it was vague and because it is technically impossible
to limit access to websites based on age. This ruling gives the Internet the same
free speech protection as print.^44 But in 1998 Congress enacted the Child Online
Protection Act, which prohibited commercia l websites from distributing materia l
that is “harmful to minors,” using the Miller test to specify what this means. The
law bounced around in federal courts for six years before the Supreme Court ulti-
mately struck it down.^45Freedom of Religion
The First Amendment has two parts that deal with religion: the establishment
clause, which says that Congress cannot sponsor or endorse any particular reli-
gion, and the free exercise clause, which states that Congress cannot interfere
in the practice of religion. Essentially, the former says that Congress should not
help religion and the latter that it should not hurt religion. The establishment
clause is primarily concerned with drawing lines; for example, does a prayer at a
public high school fooball game or a nativity scene on government property con-
stitute state sponsorship of religion? The free exercise clause has more to do with
balancing interests, such as balancing public safety concerns against snake han-
dling in religious services and the use of Amish buggies on public highways.
The combination of the establishment and free exercise clauses results in a
general policy of noninterference and government neutrality toward religion. As
Thomas Jeff erson said in 1802, the First Amendment provides a “wall of eter-
nal separation between church and state.” This language continues to be cited in
Court cases^46 in which religion and politics intersect. Since both areas carry great
moral weight and emotional charge, the boundaries of religious expression remain
diffi cult to draw.The Establishment Clause and Separation of Church and State
Determining the boundaries between church and state—the central issue of the
establishment clause—is very diffi cult. We know that the Founders did not want
an offi cial state religion or for the government to favor one religion over another,
but beyond that it’s hard to say. Jeff erson’s “eternal wall of separation” has beenMiller test Established in Miller v.
California, the Supreme Court uses
this three-part test to determine
whether speech meets the crite-
ria for obscenity. If so, it can be
restricted by the government.
DESCRIBE THE FIRST
AMENDMENT RIGHTS
RELATED TO FREEDOM OF
RELIGIONestablishment clause Part of
the First Amendment that states
“Congress shall make no law
respecting an establishment of reli-
gion,” which has been interpreted to
mean that Congress cannot sponsor
or favor any religion.
free exercise clause Part of the
First Amendment that states Con-
gress cannot prohibit or interfere
with the practice of religion.