Imagine two cases:
Case One
John Doe brings an action against the City of Lincoln under the Establishment Clause claiming that a Nativity scene in Holmes Park is unconstitutional because it "conveys a message to nonadherents of Christianity that they are not full members of the political community, and a corresponding message to Christians that they are favored members of the community."
Case Two
John Pilgrim, a devout Southern Baptist, brings an action against the City of San Francisco under the Free Exercise Clause claiming that a "Gay Pride--Stop Homophobia" display in a city park conveys a message to religious believers such as Pilgrim that they are not full members of the politcal community and a corresponding message to supporters of the display that they are favored members of the community.
Under the existing law, Doe will win his case under County of Allegheny and Pilgrim will be laughed out of court because there is no right to enjoin governmental displays that merely offend one's religious beliefs. The remedy for Pilgrim is to avert his eye from government displays he finds offensive; a passive display does not substantially burden Pilgrim's free exercise liberty.
How should these cases come out under the First Amendment?" Should both claims succeed? Both fail? Or should one succeed (which one?) and the other fail? Explain.
The web log for Prof. Duncan's Constitutional Law Classes at Nebraska Law-- "[U]nder our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual. In the eyes of government, we are just one race here. It is American. " -----Justice Antonin Scalia If you allow the government to take your liberty during times of crisis, it will create a crisis whenever it wishes to take your liberty.
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Monday August 28 : Handout on Moore v Harper (PDF has been emailed to you); Originalism vs. the "Living Constitution": Strau...
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Jack Phillips of Masterpiece Cakeshop (art by Joshua Duncan) "We may not shelter in place when the C...
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