Examination number ___________





Professor Carl H. Esbeck Winter Semester 2006




Religious Liberty, 5865L



Directions to Essay Examination

(2 hours and 45 minutes)


If you are using a laptop computer, the directions concerning a bluebook do not apply.


Write your answer in the bluebook provided.  Use a pen with blue or black ink. Write on only one side of each page.  Do not tear pages out of the bluebook.  Do not use the pages of the bluebook for scratch paper.  Do not insert your scratch paper in your bluebook.


Arrange your answers in sequential order. That is, put your answer to Question 1 first, then Question 2, then Question 3, and etc.


Place your student examination number in the upper, right-hand corner of this examination. When finished, return this examination and submit your answers.


You may bring with you into the examination room your casebook, photocopied class handouts, and your own classroom notes. You may also bring a course outline if it is entirely your own work product. No other materials are permitted.




* * * Question 1 Begins on the Next Page * * *




Essay Examination (2 hours and 45 minutes)



Question 1 (15 minutes): Mr. J. Karl Miller writes a regular column for the Columbia Missourian. In an opinion piece published April 19, 2006, Mr. Miller states that the rights of others under the First Amendment Free Exercise Clause are violated when


. . . a zealot files a lawsuit asserting that a nativity scene on a courthouse lawn, a nondenominational prayer at a football game or high school commencement exercise, or the lighting of a National Christmas tree at the White House amounts to an establishment of a religion.


Is he correct? Explain.



Question 2 (45 minutes): Sec. 491.060, R.S. Mo., provides as follows: "Any person practicing as a minister of the gospel, a priest, a rabbi, or other person serving in a similar capacity for any organized religion, shall have a testimonial privilege in proceedings in the courts of this state, with respect to a communication made to the cleric in his professional capacity with an expectation of confidentiality for the purpose of an individual obtaining religious counseling or absolution."


Bill Bay is widely sought out by his many friends and acquaintances, even some strangers, for wise counsel on moral, ethical, and spiritual matters, which is why Amy Aniston came to him for advice related to a lawsuit over a business dispute. The lawsuit is filed in a Missouri court. After learning that Amy had discussed the matter privately with Bill, Gwen Grissom, the other party to the business dispute, subpoenaed Bill to give a deposition in her lawsuit with Amy.


At the deposition, Bill Bay refuses to answer questions about his discussion with Amy. Bill admits he is not a minister serving an organized religion. Nonetheless, Bill seeks application of § 491.060 to this situation. He believes that he has a deeply felt conscientious objection - equivalent to being spiritual in its weight and scope - to revealing the things that Amy told him in confidence. Bill goes on to assert that if he cannot successfully invoke the statute, then the statute is contrary to the Religion Clauses of First Amendment to the U.S. Constitution. Finally, Bill invokes the protection of the Religion Clauses themselves to prevent his testimony from being compelled.


Gwen Grissom moves to overrule the objections and compel the testimony. How should the court rule and why?



Question 3 (45 minutes): The Library of Congress, located just east of the Capitol in Washington, D.C., announces the opening of a new display of 1,000 political cartoons published by various newspapers throughout the world during the last 50 years. The cartoons are chosen for their artistic content, their effectiveness in shaping the contemporary debate on a given topic, the fame of the artist, their wit or cleverness, or other noteworthy reasons. Half the cartoons were first published in newspapers in America, and the other half from newspapers and magazines elsewhere in the world. One of the cartoons was first published in a Danish newspaper in September 2005. It depicts the Prophet Muhammad wearing a turban shaped as a bomb.

The Society for Islamic-American Relations [SIAR], a nonprofit corporation organized to promote understanding between American Muslims and other Americans and government officials, files suit against the Library of Congress. SIAR seeks an order removing the Danish cartoon from the display. The cartoon is said to be blasphemous because it is a pictorial of the Prophet Muhammad, and in that faith there are to be no such images. SIAR invokes the Free Exercise and Establishment Clauses of the First Amendment, as well as the Religious Freedom Restoration Act. The Library of Congress denies all three claims and invokes in its defense the Free Speech Clause of the First Amendment. How should the court rule and why?



Question 4 (15 minutes): During his confirmation hearing before the U.S. Senate Judiciary Committee, Judge Samuel A. Alito was asked the following question and gave the following answer:


SENATOR DURBIN: Does the free exercise clause - in addition to the establishment clause - does it protect the right of a person to be respected in America if they have no religious beliefs - the nonbelievers?


JUDGE ALITO: Yes, it does. It is freedom to worship or not worship as you choose. And compelling somebody to worship would be a clear violation of the religious - the religion clauses of the First Amendment.


Is his answer to the question correct? Explain.



Question 5 (45 minutes): Assume that Missouri has adopted new legislation to promote the placement of foster children in adoptive homes. The purpose of the program is not only are these children better off being raised in permanent homes, but paying foster parents costs the state $7,000 per child per year. Under the new legislation, each home that adopts a foster child receives a state income tax credit of $2,500. Each private, state-licensed adoption placement agency that successfully places a foster child in an adoptive home receives a payment of $5,000 from the state for its services. Some private, state-licensed adoption placement agencies in Missouri are nonsectarian but over 90% are religious or religiously affiliated. All such placement agencies are eligible for the $5,000 payment; provided, however, that no payments may be made to agencies that are "pervasively sectarian." The Missouri legislation states that the proviso clause is placed on the $5,000 payments "because of the need to comply with the Establishment Clause of the First Amendment to the U.S. Constitution, and because of the even stricter church-state separation embodied in the Missouri Constitution."


(a)    Grace Bible Church has a nonprofit, state-licensed adoption placement agency as one of its ministries. It places a foster child in an adoptive home. The $5,000 payment is denied, however, because of the provisio clause. Grace Bible Church sues alleging a violation of the First Amendment. What result and why?


(b)    Grace Bible Church refuses to place a foster child with a man and woman living together in the same dwelling, but not married. The Church believes that the Bible counsels against unmarried, co-habiting couples, and thus children should not be raised in such an immoral environment. Missouri has a civil-rights statute prohibiting discrimination of this sort on the basis of martial status (including being unmarried), but religious groups are exempt. The unmarried couple sues the State of Missouri alleging a violation of the Establishment Clause of the First Amendment. The couple's complaint points out that Missouri licenses the Church and subsidizes its adoption placement agency. Thus the complaint avers that the civil-rights exemption advances the religious activities of the Church. The State of Missouri moves to dismiss. How should the court rule and why?




* * * End of Examination * * *


Turn in this examination and submit your answers.