UNIVERSITY OF MIAMISCHOOL OF LAW

Religion & LawProfessor Fajer

Take Home Final ExamApril 28-May 12, 2011

INSTRUCTIONS

1. The Registrar will make this exam available on Thursday April 28. Your answers must be uploaded by 5:00 p.m. on Thursday May 12. Please address questions regarding the technical operation of the exam to the Registrar.

2. Please read the entire exam carefully before Monday May 2. If you have a significant question about the meaning of any of the language of the exam, submit the question by e-mail by 9:00 a.m. on MondayMay 2 to my assistant Letty Tejeda at <>. Your question will be passed on to Professor Fajer without revealing your name. If the question is one that is appropriate to answer during the exam period, the response will be posted on the course page and sent by e-mail to the entire class by noon on Tuesday May 3.

3. Once you have looked at the exam questions, you may not discuss the subject matter of the exam(orally, electronically, in writing, in sign language or using smoke signals) with any other law student, attorney or professor until you have turned in your answers. However, you may consult any other written or online material that you think will be helpful. You also may ask Professor Fajer questions related to your project.

4. The exam consists of two questions, which will be weighted equally. You should answer both questions.

5. In your answers, you should treat the cases, statutes, and constitutional provisions included or referenced in the course materials or in the class meetings as the only available legal precedent.

6. Please read carefully. You will receive less credit if your answers disregard the instructions or some of the material presented in the questions.

7. Your grade will be determined both by the breadth and depth of your analysis and, in part, by how well you write (conciseness, clarity, and organization). If you are feeling pressed for space, you may wish to put the end of your answer in outline form. While you will receive some credit for issues you clearly identify in this manner, you will receive less credit than if you fully analyze the issues.

INSTRUCTIONS (Continued)

8.If you think you need to make assumptions in order to answer a question, please identify the assumptions you make. (E.g., “Assuming that the seats were arranged properly when they arrived, ... .”)

9. Do not include your name or other information that might identify you (other than your anonymous grading number) anywhere in your answers.

10. The answers you submit must conform to the following formatting instructions or you will have points deducted from your score(changes from the instructions I handed out at the review session are in Italics):

a. Submit your two answers as part of a single document. Each answer should be no more than seven pages long. Include page numbers in the document. Begin your second answer at the top of a new page.

b. Use 1 inch margins on the top and bottom and 1.25 inch margins on the sides.

c. Use double-spaced 12-point Times New Roman font. You may use bold, italic or underlined versions of the same font for headings or for emphasis. Do not use smaller fonts or single-spacing even for quotes, footnotes, or information presented in bullet points.

d. Begin each new paragraph with a short heading or an indentation of at least one-quarter inch or both.

e. Create a header for each document that includes your anonymous grading number and the phrase “Fajer Religion Exam.” [Reference to separate Question numbers omitted]. The header may be in any font that you like. E.g.,

090210 Fajer Religion Exam

-OR-

041168 Fajer Religion Exam

Question I

The panel opinion in Thomas v. Anchorage Equal Rights Commission is found at F77-95 in your supplemental materials. Assume that when the Ninth Circuit vacated the panel opinion and decided the case en banc, instead of relying on procedural concerns, the court addressed the substance of the Free Exercise claim. Assume the court unanimously rejected the plaintiffs’ claim, but in four opinions relying on different theories:

  • The Majority Opinion (MO)agreed with the panel that Smithand its hybrid analysis applied, but agreed with the panel dissent that the hybrid claims were not strong enough to invoke strict scrutiny.
  • Concurrence #1 (C1)argued that hybrid analysis was merely dicta, and that under the ordinary neutral policy analysis from Smith, the plaintiffs had no claim.
  • Concurrence #2 (C2)agreed with C1, but wrote separately to suggest that the U.S. Supreme Court reconsider Smith, because Thomasdemonstrated that Smithdid not provide enough protection for religious claims.
  • Concurrence #3 (C3)agreedwith the panel opinion that the plaintiffs had raised a hybrid Property Rights claim, but would have found that the Alaska and Anchorage statutes survived strict scrutiny for the reasons given in the majority opinion in Swanner(course materials F65-76).

Assume the U.S. Supreme Court then granted the plaintiffs’ petition for certiorari to decide the circumstances under which the Free Exercise Clause (FEX) requires accommodations to neutral policies that forbid or limit religiously-motivated conductand, specifically, to reconsider the holding in Employment Division v. Smith.

Compose drafts of the analysis sections of a majority opinion for the U.S. Supreme Court, and of a shorter opinion dissenting or concurring and dissenting, determining the appropriate legalstandard and applying it in the context of this case. The shorter opinion should argue for the adoption of a different legal standard than the one adopted by the majority, even if it ultimately agrees with the majority about which party wins the case.

Question II

Based on the following scenario, identifyany colorable claims that the city of San Roberto has violated the Free Exercise Clause (FEX) or the Establishment Clause (EST) and discuss how likely each claim is to succeed. Assume that somebody would have standing to raise each claim. Only address actions of the city that took place in 2010.

San Roberto is a medium-sized city on the California coast. Like many cities in the American west, it began as a Spanish Mission settlement operated by the Spanish government and the Roman Catholic Church. The official city seal was designed in 1890. In the center of the seal, which is circular,is a picture of a monk holding a miniature Spanish mission-style church building.[1] The name of the city is at the top of the seal; at the bottom are the California state flag and a picture of a sea lion (an animal commonly found on San Roberto beaches).

Every year between 1925 and 1974, the city held a “Christmas Pageant” that consisted of various instrumental and vocal musical performances by local residents, school groups, and the choirs of the local Catholic and Episcopalian churches, and a play about the birth of Jesus and the gifts of the Three Kings staged by the churches. By the mid-1970s, attendance at the pageant had dropped sharply and the city had grown more religiously diverse due to the presence of nearby Hammitt State University. The city leaders decided the pageant was no longer appropriate and stopped presenting it.

Early in 2010, local merchants asked the city government to do something to try to entice Christmas shoppers away from malls outside the city limits and back to downtown San Roberto. Mayor Mitchell (who was Episcopalian) suggested reviving the Christmas Pageants she fondly remembered from her childhood. The City Council (CC) decided to reinstitute a version of the traditional event, but, on the advice of the City Attorney, they called it the “Winter Holiday Pageant” (WHP).

Question II Continues on the Next Page

QUESTION II (Continued)

To stage the 2010 WHP, the CC set up a large red-and-green-striped tent in a large empty lot on the edge of downtown and put a raised stage and bleachers inside. On the front of the stage facing the audience, the CC hung a large banner with a four-foot high version of the seal of the city in the center. On each side of the stage, they placed a pot containing one large undecorated spruce tree cut down in a nearby forest. Musical acts, skits and short plays were performed on the stage every day from noon until 9 p.m. during the week before Christmas.

The CC had used an application process to determine who could perform during the WHP. They gave time slots to anyone who wanted to do a purely musical act (whether instrumental or vocal or both. The CC also gave time slots to any skit or play so long as the script was “purely secular.”

By contrast, the CC reviewed the scripts of proposed skits and plays with “religious content” more carefully to ensure that they were “appropriate” for the pageant. They approved all but one of the “religious” scripts they received, including several about the birth of Jesus or religious miracles associated with Christmas, two about Chanukah, and one each about Kwanzaa, a Native American festival, and a Buddhist festival. The CC rejected without explanationthe other script, submitted by the Atheist & Agnostic Association (AAA), which was a humorous playabout how difficult it was to be a non-believer during the Christmas season.

One of the musical groups that performed at WHP was the Elite Chorus from Brian A. Thompson High School (BATHS), the city of San Roberto’s public high school for the arts. Erik Holmes, the director of the Elite Chorus, had been badly injured in a car accident in October. Father Jeremy, who was the choir director at a local Catholic church, volunteered to work with the BATHS chorus (without pay) to prepare them for WHP.

Father Jeremy replaced some secular songs chosen by Erik Holmes for WHP with explicitly religious Catholic songs that he knew well from his work with the church choir. Alison Feinberg, a member of the Elite Chorus from anOrthodox Jewish family, asked to be excused from singing theCatholic songs. Father Jeremy insisted that either she sing the whole program or she couldn’t sing with the Elite Chorus at all. Reluctantly, Alison chose to perform all the songs at WHP.

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[1] This is an adaptation of the symbol of St. Robert of Newminster, a British Catholic saint who lived in the Twelfth Century. This St. Robert (there are several) is believed to be the “San Roberto” for whom the mission was named.