Examination number ___________





Professor Carl H. Esbeck
Spring Semester 2009




Religious Liberty, 5865L



Directions to Essay Examination

(2 hours and 30 minutes)


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


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


Answer the question asked. Answer only the question asked.


You may bring with you into the examination room your casebook, photocopied or scanned 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.


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.





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Essay Examination (2 hours and 30 minutes)



Question 1 (20 minutes): In Mozert v. Hawkins Public Schools (6th Cir. 1987), parents and their school-age children sued alleging that exposure to information in a textbook series was religiously offensive. They asked that the children be excused from reading the offending material and be given alternative reading lessons. Plaintiffs lost their first amendment claim.

In School District of Abington Township v. Schempp (U.S. 1963), parents and their school-age children sued alleging that exposure to prayer and devotional Bible reading was religiously offensive. They won their first amendment claim. Indeed, the relief awarded was not just for plaintiffs to be excused from the offending exercises, but an injunction directing that no students-even those who wanted the prayer and devotional-be exposed to the exercises.

Can the differing results be reconciled? Explain.



Question 2 (40 minutes): Iowa, like every state, has a Human Rights Act. Among other things the act prohibits discrimination on the basis of race, color, national origin, sex, and religion in public accommodations. A "public accommodation" in Iowa is defined as a retail store, professional service (such as a doctor, lawyer, or accountant), a hotel or motel, a restaurant, and a public conveyance (such as bus, train, airplane, or taxi).


By way of an Iowa Supreme Court decision handed down in early April 2009, the state now permits same sex marriage. Assume that in May 2009 the state legislature in Iowa added "marital status" as a protected basis or class to the Human Rights Act on public accommodations. In the same bill the legislature added the following language:


The owner of a public accommodation charged with discrimination on the basis of marital status that has a sincere religious belief in opposition to same sex marriage is exempt from the provisions of this act insofar as the public accommodation or its owner is charged with discrimination on the basis of not providing services to a person because the person is part of, or desires to enter into, a same sex marriage.  

In June of 2009 a gay couple from Iowa, while planning their September wedding, approach Nancy Drew, the sole proprietor of Drew's Photography in Newton, Iowa. Drew specializes in wedding photography; she has an excellent reputation for quality and artistic work and her services are highly sought after. She charges a minimum of $4,000 per wedding. Nancy Drew refuses an offer to contract for this wedding, explaining that she is a Christian and thereby sincerely opposed to same sex marriage.


The gay couple timely files a complaint of discrimination based on marital status with the Iowa Human Rights Commission. Drew's legal counsel timely replies that Drew's Photography is relying on the statutory language quoted above, and that the business is thereby exempt from the claim of discrimination. The gay couple's legal counsel replies that the statutory language quoted above violates the Establishment and Free Exercise Clauses. How should the Commission rule on the constitutional questions? Explain.



Question 3 (30 minutes): President Obama's stimulus bill of $787 billion has $3.5 billion designated for existing institutions of higher education. There are various restrictions on the use of the funds, including the following:


(2) Prohibited uses of funds.-No funds awarded under this section may be use for-

. . .

(C) modernization, renovation, or repair of a building-

(i) used for sectarian instruction, religious worship, or a school or department of divinity; or

(ii) in which a substantial portion of the function of a building is subsumed in a religious mission.


(A) Are there instances at public colleges and universities where these restrictions will be unconstitutional? Explain.


(B)  Are there instances at private colleges and universities where these restrictions will be unconstitutional? Explain.



Question 4 (60 minutes): Assume that Washburn University in Topeka, Kansas, has on its central campus a statue of one of its founders, the Rev. Ethan Allen Green. It is made of copper with a granite pedestal, and is twelve feet high. Rev. Green was an ordained minister in the Congregational Church (Puritan) and a prominent abolitionist. He moved from New Hampshire to the Kansas Territory in 1854 when the question of whether Kansas would be a slave or free state was still very much in the balance. The statue has Rev. Green standing in a pulpit with a Bible opened to the book of Genesis before him. An inscription under the statue, attributed to Rev. Green, has him saying, "The Lord God has made the Negro in His image and has thus created him equal to all other men, so no man can have a property right to hold him in bondage." The statue was placed on central campus in May of 1954. Washburn University was a private college when founded in 1872, but in 1978 the university became a state-funded and state-operated university.


Stephen Baldwin is professor emeritus at the Washburn University Department of Biological Sciences, which is located in Frilly Hall. He was a member of the faculty from 1976 to 2008; he retired in May of 2008. He continues to have an office in Frilly Hall, and goes into the University once or twice a week "just to catch up on what's going on at his old department." The statue of Rev. Green is located within 12 yards of the front entrance to Frilly Hall, and has to be passed by anyone going into or out of the front of the building. There are two additional entrances to Frilly Hall to the back and west sides, neither of which require passing by the statue.


Baldwin is a longtime evolutionist who is also a member of the local Unitarian Church. He first began complaining to University authorities about the Rev. Green statue back in 1995. Baldwin does not find the statue religiously or spiritually offensive, for there is nothing about the Rev. Green statue contrary to the teachings of Unitarianism. Rather, Baldwin as a Darwinian evolutionist finds offensive the message that there is a creator God that placed humankind on the Earth, as well as that the statue favors traditional Christianity by endorsing the Bible with its story of creation. To have such a message on campus is, he believes, a violation of the wall between church and state.


In April of 2008, a student group called "Brights" sought to put up a statue of Charles Darwin on central campus across the sidewalk from the statue of Rev. Green. Brights is a university-recognized organization of students that are evolutionists. Like Baldwin, Brights deny that there is a creator God who placed humankind on the Earth. The University denied the Brights' request.


Baldwin now sues Washburn University in federal district court for violating the Establishment Clause. He seeks an injunction to have the statue of Rev. Green permanently removed from the campus grounds. He is a state taxpayer. Whenever he goes into Frilly Hall, Baldwin avers that since 2002 it has been his unfailing practice to avoid passing by the anti-evolutionist statue of Rev. Green. Baldwin now enters Frilly Hall at the rear entrance to the building, albeit that forces him to assume a special burden of a longer walk from the parking lot.


Baldwin's Complaint avers that the location of the statue of Rev. Green on state university land is a violation of the Establishment Clause. All of this is deeply offensive to Baldwin's evolutionist beliefs causing him to go out of his way to avoid the statue in front of Frilly Hall. He also avers that it is unconstitutional for the University to deny equal access to the Brights when the student organization sought to place its message honoring the work of Charles Darwin on central campus.


In response to the Complaint, counsel for Washburn University timely moves pursuant to FRCP 12(b)(1) (claiming a lack of subject matter jurisdiction because Baldwin lacks standing) and FRCP 12 (b)(6) (claiming a failure by Baldwin to state a claim under the Establishment Clause on which relief can be granted).


(A) How should the federal district court rule on the motion concerning standing? Explain.


(B) How should the federal district court rule on the motion concerning "failure to state a claim" under the Establishment Clause? Explain.


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Turn in this entire examination and submit your answers.