Question 2
The Supreme Court has made major changes in the interpretation of the Constitution through decisions of cases about civil liberties. While the reasons and motivations for making a change in the law might differ, the decisions presented in this essay made a substantive and profound change in the way these rights are interpreted and understood. These cases have had an undeniable impact in realms of great importance to the American society. Through the summaries and discussions of these cases, I describe the change in the law and the probable reasons that cause that change . The pairs of cases I chose are Sherbert v. Verner and Employment Division v. Smith in the religion area, Bowers v. Harwick and Lawrence v. Texas in the privacy area, and Gitlow v. New York and Brandenburg v. Ohio in the free speech area.
Sherbert v. Verner
Sherbert, a firm member of the Seven Day Adventist Church, was fired by her employer because she refused to work on Saturdays for the religiously founded reason that it was her Sabbath Day and it should be destined for observation. Furthermore, she was not able to become employed because employers refused to employ her if she would not work on Saturday. So, Sherbert filed a claim for unemployment benefits and this was rejected by the competent commission because under South Carolina legislation, applicants were ineligible to get their benefits if they had failed to accept, without good cause, a suitable work offer.
The Court decision was that the South Carolina statute violated Sherbert’s right to the free exercise of religion, protected by the First Amendment. The court stated that the disqualification of her unemployment benefits on the grounds that she refused to accept employment where she would have to work on Saturday imposed a burden on Sherbert’s free exercise of religion, and that there is no compelling state interest which justifies the imposition of that burden on Sherbert’s constitutional right. Furthermore, they argue that the decision would not violate the “establishment clause.”
Employment Division v. Smith
Alfred Smith and Galen Black, members of the Native American Church, were fired from their jobs because they ingested peyote for sacramental purposes at a ceremony of their church. They filed a claim for unemployment compensation but were ineligible for the benefits because they had been fired for work-related misconduct, violating an Oregon law that “prohibits the knowing or intentional possession of a “controlled substance,” including the drug peyote, a hallucinogen derived from a plant” (1510). The question was if the Free Exercise Clause allows Oregon to include religiously inspired peyote use under the scope of its criminal prohibition of this drug.
The Court decision was that the statute was constitutional and did not violate the Free Exercise Clause. The Court reasoned that while a State would violate the Free Exercise Clause if it bans the performance of physical acts because of their religious motivation, the Free Exercise Clause does not relieve a person from the obligation to obey a generally applicable law (that is not directed to a religious practice) that incidentally forbids an action that his religious belief requires (cornell). The Court stated that the Sherbert test is not applicable to this case, as that test was used in a context where individual governmental assessment was present. Thus, in an across-the-board criminal prohibition, there is no need to provide a justification with a compelling governmental interest for imposing a substantial burden in the religious practice. If the test was applied to these kind of cases, it would create a right to ignore generally applicable laws if they are not supported by a compelling governmental interest (Cornell).
Changing the Law
The Supreme Court decided to make a change in the law because the Sherbert test implied major problems. The Court believed that the Sherbert test would produce the private right to ignore generally applicable laws. Scalia articulated this preoccupation by stating that this "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind"(). Moreover, another problem Scalia noted was that if the Sherbert test were to be applied to these kind of cases it “would enmesh judges in an impermissible inquiry into the centrality of particular beliefs or practices to a faith”().
The Supreme Court did not follow the decision in Sherbert v. Verner for several reasons. First, facts were different. In Smith, a criminal law was violated, while Sherbert did not violate a law. Scalia was especially concerned about this distinction. The Court stated that they did not think that the Constitution meant that someone could contend that their religious motivation places them beyond the reach of a criminal law that is not directed at their religious practice and is generally applied. Scalia argued that the Court has never held that an otherwise prohibited conduct must be free from governmental regulation if is accompanied by religious convictions.
While not absolutely overruling Sherbert, Smith’s decision changed the law in several ways. It holds the Sherbert test inapplicable to free exercise challenges to criminal prohibitions. It eliminated the “compelling government interest” requirement in such cases, as it would produce the private right to ignore generally applicable laws, and the judges would have to weigh the social importance of laws against the centrality of all religious beliefs. Now, generally applicable laws not aimed to limit the free exercise of religion otherwise valid should not be invalidated by the Sherbert test. While the decision does not specify where the Sherbert test is applicable, it states that it is inapplicable to generally applicable criminal law.
Bowers v. Harwick
Harwick was charged with violating a Georgia statute that criminalized sodomy by committing that act in the bedroom of his home with another adult male (cite). Harwick then brought suit challenging the constitutionality of the statute. The case arrived to the Supreme Court after they granted the Attorney General’s petition for certiorari. The question in this case was whether the Constitution provides a right upon homosexuals to engage in sodomy, making the statute unconstitutional.
The Court decision was that the statute was constitutional. The Court stated that the Constitution did not confer a right to privacy that extends to homosexual sodomy. The Court reasoned that none of the rights announced in the prior line of cases had any resemblance to the rights of homosexuals to engage in sodomy. The Court stated that while there are rights not readily identifiable in the text, the right of a homosexual to engage in sodomy is not one of those protected liberties, as it is not “deeply rooted in this Nation’s history and tradition” nor “implicit in the concept of ordered liberty” ().
Lawrence v. Texas
Officers of the Harris County Police Department entered the apartment of John Geddes Lawrence in response to a reported weapons disturbance. The officers observed John and Tyron Garner engaging in sexual relations. John and Tyron were adults and their conduct was consensual and private. They both were arrested, charged and convicted of “deviate sexual intercourse, namely anal sex, with a member of the same sex” under Texas Penal Code (538). The state defines “deviate sexual intercourse” as “any contact between any part of the genitals of one person and the mouth or anus of another person; or the penetration of the genitals or the anus of another person with an object” (538). The petitioners were fined and assessed court costs. The questions considered by the Court were if the Texas Statute was in violation of the Equal Protection Clause and Due Process Clause, and if Bowers v. Harwick should be overruled.
The Court decision was that the Texas Statute was unconstitutional, as it violated the Due Process Clause of the Fourteenth Amendment. The decision overruled Bowers. The Court argued that Bowers demeaned the claim under discussion, as the case was more than just about the right to engage in sexual intercourse. The Court reasoned that the question was about something greater, about controlling a personal relationship that “is within the liberty to choose without being punished as criminals” (). The Court argued that within the liberty protected by the Constitution, the right of homosexual persons to make this kind of choice was included. Moreover, there was no longstanding history of laws directed at homosexuals nor a legitimate state interest to intrude in this manner into the private life of the individual. The Due Process Clause of the Fourteen Amendment protects their right to engage in that private conduct.
Changing the Law
The Supreme Court decided to overrule Bowers for various reasons. First, it made the mistake of not considering the extent of the liberty under discussion. Bowers decision, by considering that the issue at stake was “simply the right to engage in certain sexual conduct” demeaned the claim Harwick put forward (). The laws involved in Bowers, in effect, seek to control a personal relationship in the privacy on their home, thus the issues at stake were greater than what Bowers decision consider. Kennedy argued that the constitutionally protected liberty provides homosexuals the right to choose to enter upon relationships in their private lives. The Court decided to overrule Bowers because the decision does not contemplate the extensiveness of the liberty under discussion; as it is not only about homosexual intercourse, but about the fundamental liberty of retaining dignity as free persons.
Another reason why the Court decided to overrule Bowers is because it was factually inaccurate. While the Bowers court argued that the proscriptions against the conduct under discussion had “ancient roots,” the evidence did not seem to support that claim. This holds great importance, as it was a fundamental premise on which the Bowers decision relied upon. While there were prohibitions of sodomy, they were not limited to homosexuals. The early American sodomy laws were sought to prohibit non-procreative sex, but were not directed at homosexuals. Moreover, anti-sodomy laws do not seem to have been enforced with consenting adults in their privacy of their homes. So, the historical premise of Bowers was inaccurate, invalidating part of the rationale.
The Court changed the law by recognizing that the Constitution, through its protection of liberty, allows homosexuals to engage in this kind of behavior on their private lives. It overruled Bowers and provided a new and more extensive interpretation of the protected liberty. It reinterpreted the right to liberty as protected in the Due Process Clause to include the right to engage in this kind of private conduct without suffering from the intervention of government.
Gitlow v. New York (914)
Benjamin Gitlow, a member of the Left Wing Section of the Socialist Party, was convicted for the statutory crime of criminal anarchy. He was charged for advocating, advising and teaching “the duty, necessity and propriety of overthrowing and overturning organized government by force, violence, and unlawful means, by certain writings” (entitled “The Left Wing Manifesto”), and for printing, publishing and knowingly circulating and distributing a paper called “The Revolutionary Age,” which contained “The Left Wing Manifesto.” “The Left Wing Manifesto” condemned “moderate Socialism” and advocated the necessity of the “Communist Revolution,” where masses would be mobilized through industrial revolts for the purpose of destroying and conquering the parliamentary state and instituting the “revolutionary dictatorship of the proletariat” (Cornell). There was no evidence of any effect being caused from the publication of this writing. The constitutional question was if the statute and its application in this case violates the liberty of expression in the Due Process Clause of the Fourteen Amendment.
The Court decision was that the statute was not unconstitutional in itself nor as applied in this case. First, the Court assumed that the freedom of speech and of the press as protected by the First Amendment are incorporated to the States through the Due Process Clause of the Fourteen Amendment. Moving on, the contention in the case was that there was no evidence of an effect being caused by the publication nor evidence of the likelihood of an effect, thus the statute would penalize mere utterance in violation of the Due Process Clause. The Court disagreed with this contention arguing that the statute is not penalizing a publication that lacks the quality of incitement. The statute specifically prohibits advocating for the overthrow of government by unlawful means, and advocacy implies urging to action. It is not uttering an abstract doctrine, The Manifesto advocates mass action to overthrow and destroy organized government, even concluding with a call to action.
The Court reasoned that advocating for the destruction of organized parliamentary government, implies the use of unlawful actions, thus more than just uttering an abstract doctrine is calling to a specific action. The freedom of speech and of the press are not given absolute protection by the Constitution, thus a State may punish those who abuse this freedom “by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace” (Cornell). The Court reasoned that freedom of speech and of the press do not protect publications or teaching that advocate for the overthrow of government by force and that prohibiting this behavior is “essential to the security of freedom and the stability of the State” (Cornell). Thus, the statute is not an unreasonable nor arbitrary use of police power infringing the freedom of speech or press but a matter of public safety.
Brandenburg v. Ohio (931)
A leader of the Ku Klux Klan group was convicted for “advocating the duty, necessity or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for “voluntarily assembling with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism” under the Ohio Criminal Syndicalism statute. The leader of the Klu Klux Klan called an announcer-reporter of a Cincinnati television station and invited him to a Klu Klux Klan rally. The reporter and a cameraman attended the Klu Klux Klan rally and filmed the event. The content of the film evidenced the violation of the statute. He was then fined and sentenced to one to 10 years’ imprisonment. The question was if the statute violated the First and Fourteen Amendments.
The Court decision was that the statute violated the First and Fourteen Amendments and overruled Whitney v. California. The statute, in itself and as applied, punishes the mere advocacy of the use of force or unlawful actions and forbids the assembly to advocate for the actions under discussion. The Court reasoned that the freedom of speech and press do not allow a State to forbid the advocacy of the actions under discussion, except in those cases where the advocacy incites or produces imminent lawless action and is likely to produce the action. So, the mere advocacy or teaching of these kinds of actions is not a sufficient justification.
Changing the Law
The Supreme Court decided to make a change in the law because the prior test was overly broad, which had the result of punishing or forbidding mere advocacy. As teaching the necessity for resorting to force or violence is not the same as truly preparing a group for that kind of actions, limiting the freedom of speech only for the advocacy would be unnecessary in the cases where such advocacy is not directed to inciting or producing imminent lawless action and not likely to produce such actions.
The Court did not follow the decision in the earlier cases because it reasoned that the rights to free speech and free press did not allow the State to forbid the mere advocacy of law violation or the use of force (like in Gitlow v. New York) with the exception of those cases in which the advocacy is directed to produce or incite imminent lawless action and is likely to produce or incite that action, as has been stated. The Court did not follow the earlier decision because it fails to distinguish relevant differences that would limit the right under discussion in an unnecessary fashion.
Brandenburg changed the law by specifying the conditions in which a State is allowed to limit the freedom of speech. The decision noted that the permissible conditions in which the state may “forbid or proscribe advocacy of the use of force or of law violation” are if “such advocacy is directed to inciting or producing imminent lawless action” and if such advocacy “is likely to incite or produce such action” (932). The law changed as mere advocacy was not enough, adding imminence and likelihood as factors in the test. What is “likely” specifically? The Court does not explain. Nevertheless, a new and stricter test is formulated.
Conclusion
Through the previous decisions, the laws of this country have acquired a new meaning that have impacted American society and public life. The language of the Constitution incites fundamentally different reads to the articles that protect the fundamental liberties of individuals and limit government intervention, and no law is immune to a change in its interpretation. Employment Division v. Smith in the free exercise of religion area, Lawrence v. Texas in the privacy area, and Brandenburg v. Ohio in the free speech area shaped the understanding of the Constitution and the law of the country. While the reasoning and motivation for the change in the law in these cases are distinct, all these decisions represent important pieces in the understanding of civil liberties in this COUNTRY.