Sunday, July 08, 2007
Some Bar Exam Questions
Here's something for any First Amendment Establishment Clause aficionados out there.
The First Amendment of the Constitution of the United States of America reads:
1. Suppose a significant number of people in the US were to adopt in bona fide a religion, such as the ancient Aztec religion, which requires human sacrifice.
(a) Would they be allowed to practice their religion in full under the First Amendment? Discuss why and why not.
(b) Would it make any difference if the person(s) to be sacrificed were adherents to that religion and were willing, even eager, to be the victim? Discuss why and why not.
(c) Would it make any difference if the victim was the infant child of two believers, who would consider it a high honor to have their child sacrificed? Discuss why, and why not. [For extra credit, compare and contrast your arguments with those advanced by the pro-choice and pro-life sides in the abortion issue.]
(d) Would it make any difference if the victim was required to be a non-believer in their religion? Discuss why and why not.
(e) Would it make any difference if the required sacrifice was of a non-human animal victim? Discuss why and why not.
2. Suppose a bona fide religion requires that its believers engage in polygamous or group marriages.
(a) Assuming all such marriages were freely entered into among consenting adults, would those persons be permitted free exercise of their religion in full under the First Amendment? Discuss why and why not. [Note that in 1879 the SCOTUS upheld the Morrill Anti-bigamy Act in the case of Reynolds v. United States, 98 US 145, but in Lawrence v. Texas, 539 U.S. 558 (2003) at least one justice, in dissent, voiced the opinion that state laws against bigamy were now subject to being overturned, albeit on due process grounds as opposed to First Amendment grounds.]
(b) Would it make any difference if the religion permitted and recognized polygamous or group marriages, as opposed to requiring them? Discuss why and why not.
(c) Would it make any difference if the polygamous or group marriages were arranged by the parents of the participants while the participants were minors, but did not actually take place until the participants were adults? Discuss why and why not.
(d) Would it make any difference if the marriages were arranged by parents of minors and sanctified and consummated while the participants were still minors? Discuss why and why not.
3. Suppose a bona fide religion teaches that it is the duty of its members to overthrow by any means necessary any existing government, whether secular or religious, and replace it with a government organized and established under the religion's tenets.
(a) Would the members of this religion be permitted free exercise under the First Amendment? Could the practice of this religion lawfully be banned under the Free Exercise clause? Could the practice of this religion lawfully be made a crime under the Free Exercise clause? Discuss in depth why and why not.
(b) Suppose the teaching of the religion is that its members must attempt to replace the existing government by peaceful means only (including but not limited to conversion of enough fellow citizens to enable amending the Constitution to abrogate the establishment clause and establish the religion as the official religion of the United States). Would the members be permitted free exercise under the First Amendment? Could the practice of this religion lawfully be banned under the Free Exercise clause? Could the practice of this religion lawfully be made a crime under the Free Exercise clause? Discuss in depth why and why not.
(c) Compare and contrast your answers to parts (a) and (b) of this question.
Have at it!
The First Amendment of the Constitution of the United States of America reads:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for the redress of grievances."The Fourteenth Amendment extended the guarantees of the Bill of Rights to cover the States.
1. Suppose a significant number of people in the US were to adopt in bona fide a religion, such as the ancient Aztec religion, which requires human sacrifice.
(a) Would they be allowed to practice their religion in full under the First Amendment? Discuss why and why not.
(b) Would it make any difference if the person(s) to be sacrificed were adherents to that religion and were willing, even eager, to be the victim? Discuss why and why not.
(c) Would it make any difference if the victim was the infant child of two believers, who would consider it a high honor to have their child sacrificed? Discuss why, and why not. [For extra credit, compare and contrast your arguments with those advanced by the pro-choice and pro-life sides in the abortion issue.]
(d) Would it make any difference if the victim was required to be a non-believer in their religion? Discuss why and why not.
(e) Would it make any difference if the required sacrifice was of a non-human animal victim? Discuss why and why not.
2. Suppose a bona fide religion requires that its believers engage in polygamous or group marriages.
(a) Assuming all such marriages were freely entered into among consenting adults, would those persons be permitted free exercise of their religion in full under the First Amendment? Discuss why and why not. [Note that in 1879 the SCOTUS upheld the Morrill Anti-bigamy Act in the case of Reynolds v. United States, 98 US 145, but in Lawrence v. Texas, 539 U.S. 558 (2003) at least one justice, in dissent, voiced the opinion that state laws against bigamy were now subject to being overturned, albeit on due process grounds as opposed to First Amendment grounds.]
(b) Would it make any difference if the religion permitted and recognized polygamous or group marriages, as opposed to requiring them? Discuss why and why not.
(c) Would it make any difference if the polygamous or group marriages were arranged by the parents of the participants while the participants were minors, but did not actually take place until the participants were adults? Discuss why and why not.
(d) Would it make any difference if the marriages were arranged by parents of minors and sanctified and consummated while the participants were still minors? Discuss why and why not.
3. Suppose a bona fide religion teaches that it is the duty of its members to overthrow by any means necessary any existing government, whether secular or religious, and replace it with a government organized and established under the religion's tenets.
(a) Would the members of this religion be permitted free exercise under the First Amendment? Could the practice of this religion lawfully be banned under the Free Exercise clause? Could the practice of this religion lawfully be made a crime under the Free Exercise clause? Discuss in depth why and why not.
(b) Suppose the teaching of the religion is that its members must attempt to replace the existing government by peaceful means only (including but not limited to conversion of enough fellow citizens to enable amending the Constitution to abrogate the establishment clause and establish the religion as the official religion of the United States). Would the members be permitted free exercise under the First Amendment? Could the practice of this religion lawfully be banned under the Free Exercise clause? Could the practice of this religion lawfully be made a crime under the Free Exercise clause? Discuss in depth why and why not.
(c) Compare and contrast your answers to parts (a) and (b) of this question.
Have at it!
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