OVERVIEW
The subject of this lesson is the Establishment Clause and the Free Exercise Clause of the First Amendment. Students view an episode from IN THE LIGHT OF REVERENCE which probes conflicting opinions about how a site held sacred by the Wintu Indians of California should be used today. Through analyzing the claims of conflicting parties, students envision how such a controversy might reach a court of law. Students then look at five historic Supreme Court cases (1972-2000) based on freedom of religion. These five cases provide the basis for students to research and present hearings before a Supreme Court of fellow students, following Supreme Court procedures. The lesson uses two websites with extensive records of Supreme Court cases.

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OBJECTIVES
Students will:
i. Understand the Establishment Clause and Free Exercise Clause of the First Amendment.
ii. Learn how these clauses apply to land held sacred by several American Indian nations.
ii. Learn how the Supreme Court functions to resolve conflicts arising under the First Amendment.
iv. Learn how to formulate arguments as they reenact several key decisions made by the Supreme Court concerning First Amendment rights.

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STANDARDS
This lesson addresses the following national curriculum standards:

Civics and Government, National Standards For Civics and Government, 9-12.
II. A. 2.
Explain how features of the Constitution, such as federalism and the Bill of Rights, have helped shape American society.
Describe, giving historical and contemporary examples, how Americans have attempted to make the values and principles of the Constitution a reality.
II. D. 3
Explain the following principles: rule of law, checks and balances, individual rights, and separation of church and state.
V. A. 1.
Explain the importance to the individual and to society of such personal rights as freedom of thought and conscience; right to due process of law and equal protection of the law.
American History, National Center for History in the Schools, 5-12.
Era 6 Standard 4A: The student understands various perspectives of federal Indian policy, westward expansion, and the resulting struggles. The students can therefore evaluate the legacy of 19th century federal Indian policy.
Era 10 Standard 2C: The student understands changing religious diversity and its impact on American institutions and values.
Era 10 Standard 2E: The student understands how a democratic polity debates social issues and mediates between individual or group rights and the common good.

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Ask students to imagine several scenarios in which the disputes discussed in this video went to court. For example, the Wintu might claim that their First Amendment rights were being violated if the Forest Service did not allow them to worship at their spring, or permitted its use in ways that interfered with their practices. The New Age Harmonic Convergence might sue the Forest Service if it gave preference to one religion (the Wintu) over another (theirs). The realty developer might sue the Forest Service if he felt he were denied the right to develop a ski resort because the Federal government was protecting any religion on Federal land, under the claim that this would violate the principle of separation of church and state.

Now review with students Article III Section 2 of the U.S. Constitution under which "The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution." Review with students how cases are appealed from lower courts up to the Supreme Court which then chooses which cases it will and will not hear.

Tell students that they are going to stage several court cases based on ones that were actually heard before the Supreme Court. All involve the First Amendment. Write on the board: "Congress shall make no law respecting an establishment of religion." Write next to it "the Establishment Clause" and explain that this clause guarantees the separation of church and state. Then write "or prohibiting the free exercise thereof." Write next to it "Free Exercise Clause" and explain that it ensures that individuals are free to practice religion as they choose.

Establishment Clause or Free Exercise Clause?
Print out and distribute Activity Sheet 2 to help students distinguish how each of these two important clauses functions to protect religious freedom. Leave the above definition on the board. Tell students that next to each case they must answer if the issue at stake is primarily one regarding the Establishment Clause or the Free Exercise clause.

Assigning Cases and Roles
Divide the class into groups of five. Each group will present a case before a "Supreme Court" of fellow students. Each group of five will then role play a court which serves to decide a case brought to it by a different team of five students. (Note: Teachers accommodating different class sizes can vary these numbers. For example, you may wish to have students either present a case or judge a case, but not do both. Groups presenting a case can be composed of only two lawyers per case, rather than four. Or, you may wish to find more cases to use from the web sites listed later in the lesson.)

Assign to each group of five students one of the five cases listed above. One student will serve to introduce the case (up until it reaches the Supreme Court) in a dramatic monologue. The student can role-play one of the petitioners in the case, or simply re-tell the events leading up to the trial.

Two students will act as lawyers for the petitioner(s) and together prepare one brief.

Two students will serve as lawyers for the respondent(s) and together prepare one brief.

The role play (insofar as possible) will enact the way in which a case is actually heard before the Supreme Court. Remind students that it does not matter how the real case was adjudicated. The Supreme Court has reversed itself many times. Dissenting opinions have later become the basis of a reversal, and so forth.

Sequence
The petitioners and the respondents will research the case using the web sites listed below.

Each team will then write one brief which should be concise, logically arranged, and free of irrelevant or immaterial matter. Five copies must be made of each brief.

The five justices who will hear the case must each read the brief written on behalf of the petitioner and the one written on behalf of the respondent. They are to prepare questions to ask both the lawyers for the petitioner and the respondent.

Oral arguments will be heard in front of the justices and the rest of the class. As with the actual Supreme Court, it will be frowned upon to read from a prepared text. The lawyers should have a written outline from which to speak. The lawyers for the petitioner have 7 minutes in which to present their case. The lawyers for the respondent have 7 minutes in which to present their case. (In Supreme Court cases 30 minutes is allotted.) All meaningful points must be made in these speeches as there will be no time set aside for rebuttal. The petitioner's lawyers go first.

During the oral arguments, the justices may interrupt the lawyers and ask questions. The questions and the time the lawyers take to answer them will be deducted from the 7 minutes allotted to each side.

It should take approximately two class periods for all cases to be presented. During the third class period, the justices who heard each case will meet as a team. (Note: the same group which may have presented a case (e.g. Allegheny v. ACLU) may then be the group that acts as justices for another case (e.g. the group that presented Employment Division v. Smith.)

Each group of five justices will meet to deliberate on the case presented before it. The eldest member of the court acts as Supreme Court Justice. Members must speak beginning with the second eldest and working down to the youngest. (This mimics the rule of seniority that actually governs who speaks in what order in Supreme Court deliberations.)

The justices will deliberate and then vote on the merits of the case. The majority will write a majority opinion citing the Constitution or other relevant cases bearing on this one. (The Chief Justice should take a leading role in writing the majority decision, or assign members who will do so.) If any one in the majority so wishes, he or she may write a concurring opinion which agrees with the majority but does so on a different legal basis from that of the majority. If any members dissent, they shall write a dissenting opinion citing the Constitution and any other relevant cases. (Technically, a decision may affirm a lower court ruling, remand it for further discussion or elaboration to a lower court, or reverse the lower court.)

The entire class will reconvene. Each group of justices will go before the class and read its majority, concurring and dissenting opinions.

Legal Terms Used in the Lesson
Legal Brief:   A concise statement of a client's case that sets forth the main contentions with supporting statements and evidence.
Docket:   Calendar or agenda of court cases.
Abstract:   A summary of a legal case.
Syllabus:   A summary outline of a legal case usually made by a law clerk after a case has been decided.
Petitioner:   The party that makes a formal written request to the court.
Respondent:   The party that answers the petitioner in various legal proceedings.
Amicus Brief:   A case made by a "friend of the court," a person, organization, etc. represented by a lawyer who speaks with the consent of the petitioner or respondent.
Majority Opinion:   The legal ruling which the Supreme Court hands down with the assent of at least five of the nine justices. One justice, often the Chief Justice, writes the majority opinion.
Concurring Opinion:   An opinion written by a justice who agrees with the majority, but who does so for different reasons.
Dissenting Opinion:   An opinion written by a member of the court who voted against the majority position. It expresses the legal reasoning behind the dissent.
Vacate:   To make legally void. The Supreme Court may make legally void the ruling of a lower court.
Remand:   To send back to a lower court for further explanation or consideration.
Reverse:   To overthrow, set aside or make void a legal decision by a lower court.

Researching the Cases
All students should start researching their cases with the Dockets and Abstracts at the Oyez Project web site . The Web site has an excellent virtual tour of the Supreme Court along with oral clips of Supreme Court arguments, dockets and abstracts of many cases, as well as the decisions. For less advanced students, the dockets and abstracts themselves will suffice. Students can search the Oyez site for similar cases to their own which they may want to cite as precedents for their cases. They can search for similar cases using the subject index search. An excellent list of Supreme Court cases involving freedom of religion is available at http://w3.trib.com/FACT/1st.religion.html. Also see the ACLU Web page on Religious Liberty at http://www.aclu.org/issues/religion/hmrf.html.

Advanced classes can move on to research each case in greater depth, either at the Oyez site or at the Supreme Court Collection of Cornell Law School. Click on "search" for a variety of ways to look for cases. At this site the most useful route for advanced students is to click on the Syllabus of a case which is written by a court reporter to summarize the decision after it has been made. From the syllabus, students can click on "Opinions" for both majority and dissenting opinions.

Below are Abstracts from the Oyez Project for the cases used in this lesson:
Lyng v. Northwest Indian CPA

Employment Division v. Smith

For a similar case go to Church of the Lukumi Babalu Aye v. Hialeah 1993

At the end of IN THE LIGHT OF REVERENCE the American Indian Religious Freedom Act of 1978 is discussed. It was passed "to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions, including but not limited to access to sites." The full text can be accessed at http:// http://www.cr.nps.gov/hps/laws/religious.htm. A subsequent amendment to the act was made by Congress in 1994: http://www.lectlaw.com/files/drg25.htm. An Executive Order relating to Native American sacred sites was made in 1996, http://www.cr.nps.gov/local-law/eo13007.htm.

Allegheny County v. ACLU

For a related case see Lynch v. Donnelly 1984

Santa Fe Independent School District v. Doe

Wisconsin v. Yoder

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The teacher can assess students on the basis of:
The research they did to prepare for their roles. Their skills in cooperating as members of a team. The legal briefs and/or court decisions they may have written. Their oral contributions to the trials they presented or judged. Their understanding of First Amendment Rights as they apply to a variety of controversial issues today. For example, using one of the two Supreme Court web sites listed in this lesson, the teacher can download an abstract about yet another decision regarding freedom of religion. Students can then write an essay about it in light of what they have learned from the simulation. Students could also be asked to compare the new case to the ones they simulated in by creating a graphic organizer.

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