A26 Endnotes- Arar v. Ashcroft et al., WL 346439 (E.D. N.Y. 2006). The case
was also dismissed because Arar, a Canadian citizen, did
not have standing to sue the U.S. government. Supporters
of this decision (and the practice more generally) say that it
is an essential part of the War on Terror and that the enemy
combatants who are arrested have no legal rights. Opponents
say that the practice violates international law and our own
standards of decency; furthermore, torture almost never
produces useful information because people will say anything
to get the torture to stop. - State v. Massey et al., 51 S.E.2d 179 (N.C. 1949). The case was
appealed to the Supreme Court, but the Court declined to hear
the case, which means that the state decision stands (Bunn v.
North Carolina, 336 U.S. 942 [1949]).
1 0. Alan Blinder, “Tennessee Pastor Disputes a Wildlife
Possession Charge by State,” New York Times, November 15,
2013, http://www.nytimes.com/2013/11/16/us/tennessee-pastor-
disputes-wildlife-possession-charge-by-state.html?_r=0
(accessed 1/24/14). - Pennsylvania v. Miller, Court of Common Pleas, WL 31426193
(Penn. 2002). However, supreme courts in Minnesota,
Wisconsin, and several other states have decided that requiring
the Amish to use orange SMV triangles violates their free
exercise of religion. - Wisconsin v. Yoder, 403 U.S. 205 (1972).
1 3. Jeffrey Rosen, “Lemon Law,” New Republic, March 29, 1993, p. 17.
1 4. Max Farrand, ed., The Records of the Federal Convention of
1787 , rev. ed. (New Haven, CT: Yale University Press, 1937),
pp. 587–88, 617–18. - The Papers of Thomas Jefferson, ed. J. Boyd (Princeton,
NJ: Princeton University Press, 1958), pp. 557–83, cited in
Lester S. Jayson, ed., The Constitution of the United States of
America: Analysis and Interpretation (Washington, DC: U.S.
Government Printing Office, 1973), p. 900.
1 6. Ralph Ketcham, The Anti-Federalist Papers and the
Constitutional Convention Debates (New York: Signet Classic,
Penguin Putnam, 2003), p. 247.
1 7. The two that were not ratified by the states were a complicated
amendment on congressional apportionment and the pay raise
amendment. - Annals of Congress 755 (August 17, 1789), cited in Lester S. Jayson,
ed., The Constitution of the United States of America (Washington,
DC: U.S. Government Printing Office, 1973), p. 898.
1 9. There is an intense scholarly debate on whether the authors
of the Fourteenth Amendment intended for it to apply the Bill
of Rights to the states. The strongest argument against this
position is Raoul Berger’s The Fourteenth Amendment and the
Bill of Rights (Norman: University of Oklahoma Press, 1989),
and a good book in support is Akhil Reed Amar’s The Bill of
Rights (New Haven, CT: Yale University Press, 1998). - Barron v. Baltimore 32 U.S. 243 (1833), 250. The 1873 case was
Slaughter-House Cases, 83 U.S. 36 (1873). The Supreme Court
also declined to apply the Bill of Rights to the states in the Civil
Rights Cases, 109 U.S. 3 (1883), in which the Court ruled that the
Fourteenth Amendment did not give Congress the power to
regulate the conduct of private business (thus the Civil Rights
Act of 1875 was unconstitutional and private businesses could
discriminate on the basis of race). - Chicago, Burlington, and Quincy Railroad v. Chicago, 166 U.S.
226 (1897), Twining v. New Jersey, 211 U.S. 78, 98 (1908). - Gitlow v. New York, 268 U.S. 652 (1925).
2 3. James Hutson, “‘A Wall of Separation,’” Library of Congress
Information Bulletin 57:6 ( June 1998), http://www.loc.gov/loc/
lcib/9806/danbury.html (accessed 3/3/08).
2 4. Henry J. Abraham and Barbara A. Perry, Freedom and the
Court: Civil Rights and Civil Liberties in the United States, 8th ed.
(Lawrence: University Press of Kansas, 2003), p. 300.- Engel v. Vitale, 370 U.S. 421 (1962).
- Wallace v. Jaffree, 482 U.S. 38 (1985).
- Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School
District v. Doe, 530 U.S. 290 (2000). - Marsh v. Chambers, 463 U.S. 783 (1983); Jones v. Clear Creek
Independent School, 61 LW 3819 (1993); Town of Greece, N.Y. v.
Galloway, 572 U.S. (2014). - Lemon v. Kurtzman, 403 U.S. 602 (1971).
- Lynch v. Donnelly, 465 U.S. 668 (1984), 672–73.
3 1. Jeffrey Rosen, “Big Ten,” New Republic, March 14, 2004, p. 11. - Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
- Arizona Christian School Tuition Organization v. Winn, U.S.
Supreme Court slip. op. 09-987 and 09-991 (2011). - Mitchell v. Helms, 530 U.S. 793 (2000).
- Zobrest v. Catalina School District, 509 U.S. 1 (1993). A similar
decision in 1997 allowed a public school teacher to teach in a
special program in a parochial school, Agostini v. Felton, 521 U.S.
203 (1997).
3 6. We will not cite all the cases here. See Abraham and Perry,
Freedom and the Court, Chapter 6, for a summary of cases on
this topic, especially Tables 6.1 and 6.2.
3 7. Employment Division, Department of Human Resources of
Oregon v. Smith, 494 U.S. 872 (1990), 878–80. This case is often
erroneously reported as having banned the religious use of
peyote. In fact, the Court said: “Although it is constitutionally
permissible to exempt sacramental peyote use from the
operation of drug laws, it is not constitutionally required.” - City of Boerne v. Flores, 521 U.S. 527 (1997); Cutter v. Wilkinson,
No. 03-9877 (2005); Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal (UDV) et al., 546 U.S. 418 (2006). The Sherbert
test requires that whenever the government limits religious
expression it must prove a compelling interest that is narrowly
tailored to achieve that interest if a person is substantially
burdened by the law (Sherbert v. Verner, 374 U.S. 398 [1963]). - Burwell v. Hobby Lobby, 573 U.S. (2014).
40. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S.
(2017). This case would appear to be an establishment
clause case (can the state provide direct funds to a church?), but
it was decided on free exercise grounds. This opens the door to
a broader range of protections for religious activity. See Garrett
Epps, “A Major Church-State Ruling That Shouldn’t Have
Happened,” The Atlantic, June 27, 2017, http://www.theatlantic.com/
politics/archive/2017/06/a-major-church-state-case-that-
shouldnt-have-happened/531789 (accessed 10/18/17).
41. Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584
U.S. (2018).
42. Police Department of Chicago v. Mosley, 408 U.S. 92 (1972).
43. United States v. O’Brien, 391 U.S. 367 (1968); Ladue v. Gilleo, 512
U.S. 43 (1994).
44. Schenck v. United States, 249 U.S. 47 (1919), 52.
4 5. Alan Dershowitz, Shouting Fire: Civil Liberties in a Turbulent
Age (New York: Little, Brown, 2002).
46. Abrams v. United States, 250 U.S. 616 (1919), 630–31.
47. Dennis v. United States, 341 U.S. 494 (1951).
48. Brandenburg v. Ohio, 395 U.S. 444 (1969).
49. Snyder v. Phelps, 131 S.Ct. 1207 (2011).
50. Smith v. Goguen, 415 U.S. 566 (1974).
51. Tinker v. Des Moines School District, 393 U.S. 503 (1969).
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