argues that the most important principle behind the First Amendment is that government may always prohibit the expression of an idea whenever society finds the idea itself offensive or disagreeable

convention hall.

law

Separate Opinions

clause

expression?

Dissent by Justince Kennedy

Second Amendment

Arthur Smith

painted an American flag on his bare chest,

(1989

Here, the program is not one of true private choice. It is not neutral in all respects toward religion and is part of an attempt to channel funds to wealthy citizens who send their children to religious schools. Only certain religious groups are free to participate.

10 percent of the private schools available were religious, and only 5 percent of students used their vouchers at private schools.

Baltimore

Separate Opinions

dissenting

7–2

Does the voucher program offend the 14th Amendment to the Constitution?

Epstein and Walker, p194

(1982)

They did not design to make their Government dependent on the States....

We know they would not. Why, then, should we suppose that the people of any one State should be willing to trust those of another with a power to control the operations of a Government to which they have confided their most important and most valuable interests?

After the most deliberate consideration, it is the unanimous and decided opinion of this Court that the act to incorporate the Bank of the United States is a law made in pursuance of the Constitution, and is a part of the supreme law of the land....

inherent

Yes.

Clark:

inherent

dissenting

Can Congress take over an industry in order to prevent a union from striking?

against Youngstown Sheet & Tube

Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law.

on the part of the people, to limit a power, in its own nature illimitable.

The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised.

And -- and it seems to me that if you can't answer the question whether or not you could prohibit tours for religious schools while allowing tours for other schools, I don't understand the basis of your program -- your position.

And State X says, we're not going to provide police protection. We will for everybody, but not a church. And by the way, that costs us extra money. We have to hire extra policemen -- revoke. Okay? That's all.

like that would be permissible under the Missouri constitution. So one of them is a Federal nonprofit security grant program providing grants through the Department of Homeland Security to harden -- harden nonprofit organization facilities that are deemed to be at high risk for terrorist attacks.

In that case, why, just -- just like you and the other side to spend a minute on this, just a minute, why isn't the case moot?

But you can't be -- you can't be a religious organization and have a playground.

In other words, are they serious about their faith?

They want the paving of their playground. Could -- could this -- could they demand as a matter of Federal constitutional right that that playground be funded, even though they have an -- an admissions policy that favors members of their church?

a church and have to spend extra money because there -- there's a window in the shape of a cross.

So how is the building separate from the religious exercise therein? I believe that this playground is part of the ministry of this church. And, in fact, I look at its bylaws, I look at its advertisements, and it includes play and conducted in a religiously valuable way. I think that's the materials that you're -- that the church is advertising. How do you separate out its secular function from its religious function?