Examination number ___________





Professor Carl H. Esbeck
Spring Semester 2011




Religious Liberty, 5865L



Directions to Essay Examination

(2 hours and 30 minutes)


Place your 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, typed or scanned class handouts, any executive orders and statutes that were distributed, and your own classroom notes. You may bring a course outline if it is entirely your own work product. You may also bring in a course outline from your survey course in constitutional law. No other materials are permitted.


The directions below concerning a bluebook do not apply if you are using a laptop computer.


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.




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

Essay Examination (2 hours and 30 minutes)


Question 1 (30 minutes): With reference to Salazar v. Buono (2010), the plurality by Justice Kennedy said that the district court had used the wrong test with respect to a Roman cross in the Mojave Desert National Preserve when assessing whether congressional efforts to retain the cross as a war memorial via a land swap violated the district court's injunction. The U.S. Supreme Court split badly with separate opinions concurring and concurring in the judgment, as well as two dissents.


Recall that when the lawsuit was initially filed by Frank Buono, he was already a retired employee of the National Park Service. He had once been assigned to work at the Mojave National Preserve in southeast California, but did not file suit until after he retired and moved to Oregon. Buono sought only prospective injunctive relief. Moreover, in his deposition Buono said he was Catholic and was not religiously offended by a Roman cross. He visited the National Preserve each year and made a point of traveling to a spot near the location of the cross. His claim of harm was that the cross was located on government property. He wanted to use the government land but could not because of the presence of the cross on the land.

(a)    Assume we start this lawsuit over again from the beginning. Does Buono have standing to sue based on his not wanting to be exposed to the Roman cross on government property? Explain.


(b)   Again, assume we start this lawsuit over from the beginning. Does Buono have standing to sue as a retired taxpayer residing in Oregon? Explain.



Question 2 (30 minutes): In Walz v. Tax Commission (1970), upholding property tax exemptions for real estate owned by religious organizations, the Court said:


The Court has struggled to find a neutral course between the two Religion Clauses, . . . either of which, if expanded to a logical extreme, would tend to clash with the other. . . .

. . .

[T]here is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.


Several years later, with reference to this passage from Walz, the Court in Locke v. Davey (2004), wrote the following:


These two Clauses, the Establishment Clause and the Free Exercise Clause, are frequently in tension. . . . Yet we have long said that "there is room for play in the joints" between them.


Does this orthopedic vision of the two religion-clause restraints "clash[ing]" or "in tension" like two connecting bones, but with a narrow channel between them where the government may act without violating either clause, make sense given the Supreme Court's own case law? Explain.



Question 3 (25 minutes): The University of North Carolina - Chapel Hill has a School of Nursing. After completing the first two years in the program, each nursing student selects a concentration for his or her final two-years of training. One of the concentrations is the Women's Health Track. Any nursing student pursuing the Women's Health Track has to sign a consent form wherein the student acknowledges that he or she may have to participate in a lawful abortion at the University Hospital & Clinics. Such a consent form is not required for any other concentration or for any other medical procedure. Ben Stern, a second-year nursing student, desires to select the Women's Health Track as his concentration. However, he refuses to sign the consent form because as an Orthodox Jew he has a sincere belief that abortion is the taking of an unborn person's life.


Ben Stern sues the School of Nursing alleging that the consent form requirement violates his rights under the Free Exercise Clause, Establishment Clause, Free Speech Clause, and the Equal Protection Clause. He seeks injunctive relief. How do you expect Ben Stern's claims to be resolved as to each of the four counts? Explain.



Question 4 (35 minutes): Ben Nelms was an associate pastor at First Congregational Church of Anderson, Indiana. The Anderson Church had started a "church plant" in Hallsville, Indiana. The Hallsville Congregational Church had an opening in its pastor position (as a small church-plant, the Hallsville Church had only one pastor). Hallsville is 100 miles from Anderson. Pastor Nelms was asked to assume the pastor position at Hallsville Congregational Church, but resisted. It would mean that Nelms' wife would have to leave her teaching post at the Anderson Public Schools, and that his three children would have to change schools in mid-year. Nelms also expressed concern about losses when he sold his existing house in Anderson and bought a comparable house in Hallsville. In order to make the pastorate at Hallsville more attractive, Anderson Congregational Church authorities told Nelms that a $12,000 fund would be established at the Hallsville Church for the benefit of Nelms. Nelms was told that the fund could be drawn upon by him because, as Scripture says, "you don't muzzle the ox while threshing." [For you non-farm folks, that means you let the ox eat all the wheat it wants while turning the threshing wheel.]


Nelms reluctantly agreed to take the job, and made the move in January 2009. In April 2009, Nelms withdrew from the $12,000 fund the amount of $7,000. This reflected losses he incurred in selling and buying houses. In September 2009, Nelms withdrew the remaining $5,000 from the fund reflecting unemployment losses his wife incurred until she could begin a new teaching job in the Hallsville Public Schools.


Pastor Nelms and his sermons were not well received at the Hallsville Congregational Church. After consultation with the local board of elders, it was mutually agreed that Nelms would resign from the Hallsville Church effective December 31, 2010. An audit was conducted in January 2011. When the Hallsville Church accountant questioned the two unilateral withdrawals by Pastor Nelms from the $12,000 fund, Anderson Congregational Church officials were asked to visit the Hallsville Church and explain the purpose of the $12,000 fund. When those church officials arrived in Hallsville and were apprised of the situation by the accountant, they told the elder board that "Pastor Nelms has misappropriated the $12,000, using the money for his own purposes rather than to further the ministry of the Hallsville Church." The next Sunday morning, the same Anderson Church officials made the same statement from the Hallsville pulpit about Nelms' misappropriation of church funds.


Pastor Nelms now sues in state court claiming defamation by the Anderson Congregational Church officials. The elements of defamation are: that a statement was publicized about plaintiff by defendants; that the statement was false; that the defendants knew the statement was false when made; and, that the statement harmed the good name or reputation of the plaintiff. Nelms seeks the following remedies: a public retraction, money for damage to his reputation, compensation for the period while he seeks new employment, and reinstatement in a pulpit as pastor of a Congregation Church somewhere in Indiana.


With reference to the federal First Amendment, the defendants move to dismiss the complaint because this is an intra-church dispute. How should the state court rule and why? You may assume Indiana has adopted "neutral principles of law" for the resolution of ecclesiastical disputes.



Question 5 (30 minutes): The Religious Land Use and Institutionalized Persons Act, §§2000cc et al. [RLUIPA], was signed into law by President Clinton in September 2000. The legislation essentially applies the "strict scrutiny" test of Sherbert v. Verner to religious discrimination involving land-use controls and inmates in prison. The provisions of RLUIPA are applicable to state and local governments, not just the federal government. Accordingly, for the power to impose federal regulations on state and local governments, Congress relied not just on §5 of the 14th Amendment but also on congressional authority under the Commerce Clause and the Spending Power.


Section 2000cc(a) generally prohibits a government from imposing a substantial religious burden via land-use controls such as zoning. Such a government's land-use controls can only be upheld under RLUIPA upon a showing of compelling-interest/least-restrictive-means.


Section 2000cc(b)(C) states that a substantial religious burden is imposed by a discriminatory land-use control where a government's land-use regulation permits it to make "individualized assessments of the proposed uses for the property involved." An example of such "individualized assessment" would be a city delegating to its zoning commission the discretion to grant or deny a special use permit to locate a house of worship in a residential neighborhood of mixed single- and multi-family owner-occupied housing.


(a)    What is the origin of this idea of an "individualized assessment" imposing a substantial religious burden? Explain.


(b)   Does the authority of Congress to make unlawful a local government's imposition of a religious burden via an "individualized assessment" come from §5 of the 14th Amendment, the Commerce Clause, or the Spending Power? Explain.


(c)    Section 2000cc-5(7)(A) of RLUIPA defines the term "religious exercise," for both RLUIPA and the Religious Freedom Restoration Act [RFRA]. What constitutional problem(s) mishandled in the courts was this definition of "religious exercise" designed to correct? Explain.



* * * End of Examination * * *


Turn in this entire examination and submit your answers.