Constitutional laws originate from the United States Constitution of 1789. These laws embody the rules and regulations which govern the country and the rights of the individuals who reside in it.
Constitutional laws also regulate the federal, state, and local governments in the United States, which set the legal parameters for what the government can and cannot do. Additionally, each state in the United States also has its own constitution, which governs its citizens.
Constitutional law is most commonly associated with certain fundamental rights, such as:
- Equal protection;
- The right to bear arms;
- Freedom of religion; and
- The right to free speech.
The Bill of Rights, as well as additional amendments, were added to the Constitution which enumerate the rights of individuals.
Some examples of constitutional laws include:
- Assistance of counsel, which applies to those accused of a crime and stipulates that an attorney will be appointed for a defendant if they cannot afford to hire their own;
- Checks and balances intended to prevent any one branch of the government from over exerting its power and ensuring that the other branches are appropriately conducting their duties;
- Equal protection, which mandates that individuals and groups of individuals who must be treated the same under the law;
- Due process, meaning that individuals who are subject to the judicial system will be treated fairly and afforded their rights under the law;
- Freedom of speech, which is one of the civil liberties that guarantees an individual’s right to speech;
- Freedom of religion, which is a civil liberty stipulating the right, within the confounds of the law, to practice one’s religious beliefs, which will be further discussed later on;
- Judicial review, which is the right to have the courts review legislation to determine whether or not it is valid; and
- Separation of powers, which keeps the judicial, executive, and legislative branches separate and accountable for their own actions while also avoiding having an absolute ruler.
There are numerous rights which are guaranteed by the Constitution, but are not specifically mentioned in the document itself. Rather, they are inherently a part of the notion of liberty and as such are a constitutional right. These rights include, but are not limited to:
- The right to travel across state lines;
- The right to marry;
- The right to raise children; and
- Privacy rights.
Each state is permitted to expand on the basic rules, regulations, and rights contained in the Constitution. A state, however, is not permitted to supersede, or override, the rights which are granted in the Constitution.
What Are Constitutional Rights?
A fundamental right guaranteed under the First Amendment is the right to freedom of speech and freedom of the press. Both federal and state governments are generally prohibited from limiting an individual’s right to expression, with a few limited exceptions.
Another right which is protected by the First Amendment would be the right to freedom of religion. The First Amendment specifically prohibits the establishment of a government religion, including a state church.
The Second Amendment grants people the right to keep and bear arms, while the Fourth Amendment protects individuals from government trespass without a warrant issued by a court. This protection also extends to houses and papers.
The Fifth Amendment protects individuals from acts of self-incrimination and double jeopardy. In order to avoid self-incrimination, a person can plead the fifth, which refers to exercising their constitutional right to avoid answering a question while under oath.
The Fifth, Sixth, and Fourteenth Amendments guarantee a person’s right to a public and speedy trial by an impartial jury prior to being deprived of their life, liberty, or property. The accused has the right to legal counsel for their criminal trial, even if they cannot afford one themselves.
The Fourteenth Amendment provides that no state can deny, to any individual within its jurisdiction, the equal protection of the laws. State governments and their agencies are prohibited from discriminating against any person on the basis of protected classifications, including:
What Constitutes A Religious Belief?
The Supreme Court defines a religious belief as “whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.” This definition is the result of the case United States v. Seeger (1965) and includes many non-theistic religions, such as Buddhism and Taoism.
However, in the case of Wisconsin v. Yoder (1972), the Supreme Court ruled that the Seeger definition would only apply to specific statutory laws, such as draft exemptions. It would not always be used in First Amendment disputes.
The orthodox and earliest Supreme Court definition of religious belief as referred to in the Seeger case comes from Davis v Beason (1890). The Davis definition of religious belief is “a person’s view about his relationship, obligations, and reverence for a Creator.” The Supreme Court has since changed its stance on what constitutes a religion over the centuries. The Seeger case, with the Yoder exemption, is the current definition of what constitutes a religious belief.
As was previously discussed, the right to free exercise of religion is a fundamental right that is guaranteed by the First Amendment. As such, you have the right to believe in any religion or no religion at all. The government cannot compel a person to follow a religion or punish someone who does.
The Constitution forbids the government from favoring any one religion over another. As such, when the government interacts with religion, it must do so neutrally and for a secular purpose.
Avoiding establishment is most commonly referred to as “separation between church and state.” Although “separation” has been enforced as a legal doctrine, it must be noted that separation does not come from the Constitution.
More specifically, separation comes from Thomas Jefferson’s letter to Danbury bishops, reassuring them that their right to free exercise would not be endangered by a new administration. While barring establishment of religion generally constitutes separation, the line between the establishment clause and separation is considerably thin.
The Supreme Court has established a test for when church and state may interact, known as the Lemon Test. The Lemon Test, named after the case Lemon v. Kurtzman (1971), states that church and state may interact when:
- There is a secular purpose;
- The principal effect neither advances nor inhibits religion; and
- There is no excessive government entanglement with religion.
What Religious Practices Are Prohibited In Public Schools? What Religious Practices Are Not Prohibited In Public Schools?
Because children are impressionable, courts are generally hesitant to allow the display of religious messages in schools. This is because they would transmit fundamental values to children linking school and religion. As such, some examples of prohibited activities include:
- Teachers wearing clothing that is distinctive of a specific religion;
- Reading the Bible or other religious text aloud, even if participation is voluntary and it is done without comment;
- Organized prayer, even when denominationally neutral and participation is voluntary;
- Daily moments of silence for meditation or prayer, even when voluntary;
- Distributing Bibles, or other religious texts, on school grounds;
- Schools establishing a “religion of secularism” by opposing religion in general, and promoting belief in no religion;
- Schools requiring the teaching of “creation science;” and
- Some school districts do not allow teachers to read the Bible, or other religious texts, on their own during school hours or to have such items on their desks during school hours.
Some religious activity is allowed, including:
- Student-initiated prayers that do not involve messages of conversion, such as pregame football prayers;
- Classes may study the Bible, and other religious texts, as long as instruction is secular and not for the advancement of religion;
- Witch costumes on Halloween and discussion of witches in class as part of folklore and fantasy are allowed;
- Schools must allow equal access to their facilities. What this means is that a school may allow religious groups to use its facilities for religious purposes, as long as the school does not discriminate in who it allows to use its buildings; and
- Students may form religious clubs as long as the school allows other non-curriculum related clubs.
If you believe that your child’s religious rights are being violated at school, you should file a complaint with the school district. If you are still unsatisfied after the school district processes your complaint, you could sue the school and the school district.
Do I Need A Lawyer For Help With Religion In Public Schools?
A family lawyer can help you understand you and your child’s Constitutional rights as they apply to religion in public schools. An experienced attorney will help you understand all of the legal options that are available to you, and will also be able to represent you in court, as needed.
