The Handy Law Answer Book. David L Hudson

was needed in the U.S. Constitution, even though many of these rights were guaranteed by the states, to ensure that equal protections were granted to all U.S. citizens (iStock).

      What is an example of an ex post facto law?

      A prime example of an ex post facto law is a law that punishes a defendant for conduct that was not criminal at the time it was committed. A recent example occurred in a federal district court in the Virgin Islands involving a convicted sex offender. The offender was convicted before the passage of a new federal law requiring increased reporting requirements for former sex offenders. The federal district court reasoned that applying the new federal registration requirement to a former sex offender whose crime of failing to register occurred prior to the passage of the new law. Thus, the court reasoned that retroactive application of the new federal sex offender law violated the prohibition against ex post facto laws.

      Where are constitutional amendments placed in the Constitution?

      Constitutional amendments are added on to the end of the legal document. This differs from many state constitutions, which simply amend language directly in the body of their constitutions. However, the process is different at the federal level, where all changes to the constitution take place by the state.

FIRST AMENDMENT

      What freedoms does the First Amendment protect?

      The First Amendment states that “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 a redress of grievances.” It thus protects the freedoms of religion, speech, press, assembly and petition from interference by the government. The First Amendment also protects something known as the right of association—the right of groups and people to associate together for expressive purposes.

      What does freedom of religion mean?

      There are two clauses of the First Amendment dealing with religious freedom: the Establishment Clause and the Free Exercise Clause. The Establishment Clause—“Congress shall make no law respecting an establishment of religion”—means that there should be separation between church and state. Judges, scholars, politicians, and everybody else disagree over how much separation there should be between church and state. The Establishment Clause has led to interesting and controversial decisions impacting school-sponsored prayer in public schools, display of Ten Commandments monuments, and the constitutionality of the Pledge of Allegiance.

      The Free Exercise Clause provides that the government cannot infringe upon a person’s religious beliefs. People have the right to believe in whatever religious faith they wish or they have the right to believe in no religion at all. The controversies over the Free Exercise Clause arise when the government prohibits religious-based actions or conduct that people claim violate their religious faith. For example, the U.S. Supreme Court ruled in Reynolds v. United States (1878) that the government could prohibit George Reynolds from practicing polygamy even though that was a part of his religious faith.

      How does the U.S. Supreme Court determine if something violates the Establishment Clause?

      The U.S. Supreme Court employs several tests to determine whether something violates the Establishment Clause. The most prominent is the so-called “Lemon test” from the Court’s 1971 decision Lemon v. Kurtzman. The Lemon test requires that the government have a secular purpose, that government regulation does not have a primary effect of advancing or inhibiting religion, and that it does not create an excessive entanglement between church and state.

      Justice Sandra Day O’Connor introduced another test, which she called a “refinement” of the Lemon test. Her endorsement test asks whether a reasonable observer, familiar with the underlying circumstances, reasonably would believe that the government is endorsing religion.

      When did Justice Sandra Day O’Connor introduce her endorsement test?

      O’Connor introduced her endorsement test in a concurring opinion in Lynch v. Donnelly (1984). The case involved a Christmas display in Pawtucket, Rhode Island, that featured a nativity scene alongside other more secular symbols, such as a Santa Clause, a reindeer, and as a holiday greeting banner.

       LegalSpeak: Van Orden v. Perry (2005)

      Chief Justice William Rehnquist (plurality): “In this case we are faced with a display of the Ten Commandments on government property outside the Texas State Capitol. Such acknowledgments of the role played by the Ten Commandments in our Nation’s heritage are common throughout America. We need only look within our own Courtroom. Since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze. Representations of the Ten Commandments adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom. Moses also sits on the exterior east facade of the building holding the Ten Commandments tablets.”

      Justice Antonin Scalia (concurring): “I would prefer to reach the same result by adopting an Establishment Clause jurisprudence that is in accord with our Nation’s past and present practices, and that can be consistently applied—the central relevant feature of which is that there is nothing unconstitutional in a State’s favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.”

      Justice Clarence Thomas (concurring): “There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause.”

      Justice Stephen Breyer (concurring): “In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral message (about proper standards of social conduct). And in certain contexts, a display of the tablets can also convey a historical message (about a historic relation between those standards and the law)—a fact that helps to explain the display of those tablets in dozens of courthouses throughout the Nation, including the Supreme Court of the United States. Here the tablets have been used as part of a display that communicates not simply a religious message, but a secular message as well. The circumstances surrounding the display’s placement on the capitol grounds and its physical setting suggest that the State itself intended the latter, nonreligious aspects of the tablets’ message to predominate. And the monument’s 40-year history on the Texas state grounds indicates that that has been its effect.”

      Justice John Paul Stevens (dissenting): “The sole function of the monument on the grounds of Texas’ State Capitol is to display the full text of one version of the Ten Commandments…. Viewed on its face, Texas’ display has no purported connection to God’s role in the formation of Texas or the founding of our Nation; nor does it provide the reasonable observer with any basis to guess that it was erected to honor any individual or organization. The message transmitted by Texas’ chosen display is quite plain: This State endorses the divine code of the “Judeo-Christian” God.”

      Justice David Souter (dissenting): “A governmental display of an obviously religious text cannot be squared with neutrality, except in a setting that plausibly indicates that the statement is not placed in view with a predominant purpose on the part of government either to adopt the religious message or to urge its acceptance by others.”

      The majority of the court, in