This research looks into various milestones in the Constitution of America with regard to safeguarding the privacy of citizens at different levels and establishing individual and group freedoms in the practice of religion. Looking into these milestones is important as it shines a light on the role of the citizens in the establishment of the rule of law and helps one understand the dynamic milieu of the law. Further, it highlights the gaps inherent in the current laws on the central issues.
The Constitution of America is ambiguous on the right to privacy. However, the Bill of Rights is considerate of the concerns raised by one James Madison and his fellow framers for safeguarding specific aspects of individual privacy. Among the precepts highlighted by James Madison and others are the privacy of beliefs (1st Amendment), privacy for the homes of soldiers against demands (3rd Amendment), privacy that protects an individual against unreasonable searches by the authorities (4th Amendment) and the 5th Amendment which safeguards the personal information of individuals such that one is safe from incriminating themselves. Crowing these laws up is the 14th Amendment of 1868 which looks into the issue of citizenship and the rights due to the citizenry and equal protection of the laws. The amendment was proposed to cater for the former slaves after the American Civil War during which slavery was abolished. The amendment has five sections and the first involves the most litigation. The first section includes clauses such as the Citizenship, Due Process, Equal Protection and Privileges or Immunities clauses. Specifically, the Equal Protection Clause restricts states from “denying any person within its jurisdiction the equal protection of laws.” Under the Privileges and Immunities clause, citizens are protected from state interferences with regard to the privileges and immunities availed by the national government. This particular amendment widened the scope of the protection of civil rights for all Americans regardless of their race. Areas such as religion and public education were soon to experience massive paradigm shifts as many court cases ensued and some of them became landmark cases in the realms of religion and education.
2. Literature Review
2.1 Rights of Religious Organizations
The United States system of governance occurs at the levels of the state and federal laws. The federal laws have a limited jurisdiction as the laws passed by Congress are limited to those areas specified in the U.S Constitution. The rest of the lawmaking is restricted to the states. During the adoption of the U.S Constitution, some policymakers complained that some rights did not adequately address the needs of the people. The result of such concerns was the inception of Amendments 1-10 in the Constitution (Runquist, 2014). The First Amendment regarding religious establishment and free exercise of religion became applicable at the state level. Soon, there arose the need to strike a balance between the establishment and free exercise clauses (Beckwith, 2003). For example, the construction of churches is subject to control by the state especially due to the law that requires state administrations to ensure construction of safe buildings. In Employment Division v. Smith the court established that “neutral laws of general applicability” are necessary and legitimate regardless of compelling state interests. At the federal level, the Religious Freedom Restoration Act (RFRA) applies (Beckwith, 2003). On this issue I argue that, when interpreted through certain angles such action may be deemed as a form of limitation on free exercise of religion. Further, a church that desires to seek government funding may be deemed to breach state laws since the law prohibits any form of entanglement between the government and the church. As such, there is a lingering question on how the state can maintain neutrality towards religion while also maintaining separation between the state and the church.Runquist (2014) further states that some states impose unique constitutional protections for the church; for example, Massachusetts has the Dover Amendment which safeguards religious corporations, educational organizations and agricultural sects from multiple zoning restrictions.
2.1.1 Religious Establishment
Religious Establishment is provided for under the First Amendment in which there are the Establishment and Free Exercise Clauses. Under the Establishment Clause, churches sponsored by the state are illegal as the state must not “establish” a religion to be followed by all citizens (The Pew Forum on Religion & Public Life, 2007). Further, the state should not show preference for one religion over another. Over the years litigation is hampered by the fact that the definition for establish was unclear. The Free Exercise Clause safeguards the right of citizens to practice their religion as long as it does not deride public morality or compel the government’s interests (Walter, 2012). The state can however freely enter into the realm of religion to establish reservations for religious practices in order to achieve the requirements of the Free exercise Clause. One of the landmark cases relevant to the Free Exercise Clause is Prince v. Massachusetts, 321 U.S. 158 (1944) in which the Supreme Court ruled that the state has no right to force inoculation of children yet their parents resisted the idea on religious grounds(Walter, 2012). As such, the state has an overriding interest in ensuring public safety and health.
2.1.2 Religion in Public Education
Since the Supreme Court ruled out the concept of school-sponsored prayer, America is still unsettled regarding the niche of religion in public learning institutions. For some Americans, the federal and state administrations are intentionally and maliciously excluding God and religious sentimentality from public learning, which they interpret as a deliberate infringement of the right to free exercise (The Pew Forum on Religion & Public Life, 2007). On the opposing end are civil libertarians who are claiming that Christians are merely trying to impose their values on students whose religions are not necessarily similar. According to them, the federal legal administrations are right in disallowing school-sponsored prayer as they are merely interpreting the prohibition of state-sponsored prayer as specified in the First Amendment (The Pew Forum on Religion & Public Life, 2007). As litigation piles up on the issue, recent surveys reveal that Americans prefer that the government be less stringent on religion in public learning institutions. This indicates that public interest on the issue is great meaning that litigation is inevitable.
2.2The Right to Privacy
The Bill of Rights 1789 guarantees in the Fourth Amendment which accords people the right to be safe personally and when at home alongside the privacy for their papers and other personal effects. According to Head (2018), the Ninth Amendment specifies that Constitutional enumeration will not be used to infringe any existing rights of people. The Privacy Act 1974 was passed to amend title 5 of the U.S Code by putting in place the Fair Information Practice which necessitates that the federal government must safeguard public privacy in their collection, storage, use and circulation of the personal information of citizens (Head, 2018).The Fair Credit Reporting Act was established in 1970 to protect financial records of individuals by imposing limits on the persons that can access the information and ensuring that customers can readily access such information. Later in 1999, the Financial Monetization Act was enacted to ensure that financial institutions establish a privacy policy that specifies the kind of information collected and the purposes for which it is used. The Children’s Online Privacy Rule (COPPA) of 1998 was enacted to impose minimum privacy requirements for the handling of the information of children below 13 by website operators and online service providers.
2.3 Argument
In this study I argue that litigation is a major driver in the establishment of laws and the generation of paradigm shifts in long-standing laws. While the lawmaking arm of government may sometimes develop Acts, such action is often propelled by the outstanding statutes developed through litigation. As such, this study reveals the great influences the public can bring into policymaking processes and the policies that result from those processes.
3. Hypothesis
Litigation drives the law and influences policy decisions therein. For instance, without litigation, the ambiguity of the privacy laws in the Bill of Rights would not be as clear as it is today. Although the precepts regarding matters that do not directly impact social life and socialization will seldom face litigated changes, laws affecting the social realm are subject to routine analysis in the socio-political sphere.
4. Definition of Concepts
a. Litigation: the practice of taking legal action or filing a lawsuit.
b. Policy: A course of action established at the individual or organizational level. Policies usually become procedural or part of protocol.
c. Act: a move by the executive to impose a law. The title ‘Act’ is used in reference to laws formed by an act of parliament.
5. Testing hypothesis
Walter (2012) reveals that today, the phrase “establishment of religion” is interpreted based on a three-part test that came up in the Supreme Court case of Lemon v. Kurtzman, 403 U.S. 602 (1971). The test was dubbed the “Lemon” test and it specifies that the government is free to give a helping hand in religion on condition that: (1) the main aim of such assistance is secular, (2) the help does not in any way promote or limit religion, and (3) the church and the state are not overtly entangled.
Lisa’s article ‘Constitutional Rights of Religious Organizations’ highlights that the church also enjoys autonomy as established in the litigation of Watson v. Jones in which it was determined that church disputes be presided over and decided upon through judicial deference.
The Pew Forum on Religion and Public Life (2017) article gives objective evidences on the role of litigation in public education religion. The article shows that In McCollum v. Board of Education, the Supreme Court ruled out the practice of parents sending religious instructors from various denominations visit and teach their children during school days. To settle the uproar caused by this verdict the Court later held (in Zorach v. Clauson) that public schools can excuse students during school days to go for religious lessons in separate premises. However the religious advocates received multiple blows when in Engel v. Vintale 1962 the Court ruled against school-sponsored prayer by prohibiting any prayer recitations. Later, the Court banned organized reading of the Bible and in Santa Fe Independent School District v. Doe disallowed prayers during football matches in high school. In Stone v. Graham (1980) a Kentucky law that required schools to post a copy of the Ten Commandments was overturned. In a separate case (Lee v. Weisman [1992]), the court disallowed the recitation of prayers during graduation ceremonies. Further, any form of benediction by a clergyman at a public school event was termed as a violation of the separation between the church and the state.
Beckwith (2012) further reveals that those students presenting the commencement speech are prohibited from including religious sentiments and/or phrases in their speeches as determined in Bannon v. School District of Palm Beach County (2004). The school curriculum is also a contentious area. The teaching of Darwinian account of evolution and the creation stories may seem like matters not subject to litigation. However, in Epperson v. Arkansas 1968 the Court cancelled out the Arkansas statute that left out the Darwinian evolution theory in Biology. In a separate case, Edward v. Aguillard 1988, the court disbanded the Louisiana law that legitimized the teaching of the evolution story of the human origin alongside “Creation Science.” Bible study programs in schools are also deemed unconstitutional on grounds that they culture learners into viewing the Bible as religious truth.
Head (2018) reveals that in Olmstead v. United States, 1928, the Supreme Court ruled that privacy is indeed a right at the individual level by determining that when wiretaps are obtained without an official warrant and presented as evidence in court, the move is not a violation of the Fourth and Fifth Amendments. However, in Katz v. United States the Supreme Court overturned this decision citing that every individual has an established reasonable expectation of privacy. In Griswold v Connecticut state-level prohibitions of birth control were disbanded and the right to privacy was established as a constitutional doctrine. In the landmark case, Justice William O. Douglas emphasized that people are free to associate and have a right to privacy in their associations.
6. Conclusion
Numerous researchers on the identified sections of the law reveal the central role that litigation plays in the abolition of some statutes and the enactment of others in their place. The public’s role in the law making process cannot be ignored. Aggregately, the law is subject to implementation for various causes and if so then change is inevitable.