Wisconsin Constitution

The courts are prevented from determining what makes one competent to serve as a priest. As such, the courts cannot decide a claim of negligent hiring or retention by a church. Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 303, 533 N.W.2d 780 (1995). See also L.L.N. v. Clauder, 209 Wis. 2d 674, 563 N.W.2d 434 (1997), 95-2084.

The state is prevented from enforcing discrimination laws against religious associations when the employment at issue serves a ministerial or ecclesiastical function. While it must be given considerable weight, a religious association's designation of a position as ministerial or ecclesiastical does not control its status. Jocz v. LIRC, 196 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995), 93-3042.

Freedom of conscience as guaranteed by the Wisconsin constitution is not constrained by the boundaries of protection set by the U.S. Supreme Court for the federal provision. As applied to Amish, requiring slow moving vehicle signs on buggies unconstitutionally infringed on religious liberties. Requiring Amish buggies to carry slow moving vehicle signs furthered a compelling state interest, but was not shown to be the least restrictive means of accomplishing that interest. State v. Miller, 202 Wis. 2d 56, 549 N.W.2d 235 (1996), 94-0159.

The role courts may play in church property disputes is limited, but a court may adopt one of several approaches so long as the court does not entangle itself in doctrinal affairs. Church doctrine may be examined from a secular perspective, but courts may not interpret church law, policies, or practice. United Methodist Church, Inc. v. Culver, 2000 WI App 132, 237 Wis. 2d 343, 614 N.W.2d 523, 99-1522.

While this article is more specific and terser than the clauses of the 1st amendment, it carries the same import. Both provisions are intended and operate to serve the purposes of prohibiting the establishment of religion and protecting the free exercise of religion. Jackson v. Benson, 218 Wis. 2d 835, 578 N.W.2d 602 (1998), 97-0270.

To succeed in a constitutional challenge to a local fire prevention code, the complaining church had the initial burden of proving that there was a sincerely held religious belief that would be burdened by the application of the code. The church failed to carry this burden because it did not present evidence of any basic tenet, principle, or dogma supporting representations that an exposed sprinkler system would desecrate the worship space. Peace Lutheran Church and Academy v. Village of Sussex, 2001 WI App 139, 246 Wis. 2d 502, 631 N.W.2d 229, 00-2328.

The Wisconsin Constitution offers more expansive protections for freedom of conscience than those offered by the 1st amendment. When an individual makes a claim that state law violates his or her freedom of conscience, courts apply the compelling state interest/least restrictive alternative test, requiring the challenger to prove that he or she has a sincerely held religious belief that is burdened by application of the state law at issue. Upon such a showing, the burden shifts to the state to prove that the law is based in a compelling state interest that cannot be served by a less restrictive alternative. Noesen v. Department of Regulation and Licensing, 2008 WI App 52, 311 Wis. 2d 237, 751 N.W.2d 385, 06-1110.

The free exercise clause of the 1st amendment protects not only the right to freedom in what one believes, but extends (with limitations) to acting on those beliefs. Both individuals and communities of individuals have a right to the freedom of religion. Courts have adopted a "ministerial exception" that protects houses of worship from state interference with the decision of who will teach and lead a congregation. Ordination is not required to be considered "ministerial." The function of the position, as determined by whether the position is important to the spiritual and pastoral mission of the church and not whether religious tasks encompass the largest share of the position, is the primary consideration. Coulee Catholic Schools v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868, 07-0496.

The constitutionality of state tuition grants to parents of resident pupils enrolled in private elementary or high schools is discussed. 58 Atty. Gen. 163.

Guidelines to possibly avoid constitutional objection to CESA service contracts with private schools are discussed. 62 Atty. Gen. 75.

Leasing of university buildings to a religious congregation during nonschool days and hours on a temporary basis while the congregation's existing facility is being renovated and leasing convention space to a church conference would not violate separation of church and state provisions of the 1st amendment. 63 Atty. Gen. 374.

The department of public instruction may, if so authorized under 16.54, implement the school lunch program and special food service plan for children in secular and sectarian private schools and child-care institutions without violating the U.S. or Wisconsin constitutions. 63 Atty. Gen. 473.

Funds received under Title I of the Elementary and Secondary Education Act may not be used to pay salaries of public school teachers teaching in church affiliated private schools. See 64 Atty. Gen. 139. 64 Atty. Gen. 136.

The establishment clause and this section prohibit public schools leasing classrooms from parochial schools to provide educational programs for parochial students. 67 Atty. Gen. 283.

A group of churches is entitled to a permit under s. 16.845 to use the capitol grounds for a civic or social activity even if the content of the program is partly religious in nature. 68 Atty. Gen. 217.

The U.S. and state constitutions do not prohibit the state from disbursing state matching funds under the National School Lunch Act to private, as well as, public schools. 69 Atty. Gen. 109.

The state can constitutionally license and regulate community based residential facilities that are operated by religious organizations and are not convents, monasteries, or similar facilities exempted by statute. 71 Atty. Gen. 112.

University of Wisconsin athletes may not engage in voluntary prayer led by a coach prior to an athletic event, although silent meditation or prayer organized by athletes may be undertaken within certain guidelines. 75 Atty. Gen. 81.

The scope of this section is discussed. 75 Atty. Gen. 251 (1986).

The establishment clause prohibits states from loaning instructional material to sectarian schools or providing auxiliary services to remedial and exceptional students in such schools. Meek v. Pittenger, 421 U.S. 349.

In adjudicating a church property dispute, the state may adopt a "neutral principles of law" analysis regarding deeds, applicable statutes, local church charters, and general church constitutions. Jones v. Walf, 443 U.S. 595 (1979).

A statute does not contravene the establishment clause if it has a secular legislative purpose, its primary effect neither advances nor inhibits religion, and it does not excessively entangle government with religion. Committee for Public Education v. Regan, 444 U.S. 646 (1980).

The representation of the Ten Commandments as the basis for the legal code of western civilization violated the establishment clause. Stone v. Graham, 449 U.S. 39 (1980).

The denial of unemployment compensation to a Jehovah's Witness who quit a job due to religious beliefs was a violation of free exercise rights. Thomas v. Review Bd., Ind. Empl. Sec. Div. 450 U.S. 707 (1981).

A state fair rule that limited a religious group to an assigned booth in conducting its religious activities did not violate the free exercise clause. Heffron v. Int'l Soc. for Krishna Consc. 452 U.S. 640 (1981).

A public university that provided a forum to many student groups but excluded religious student groups violated the principle that state regulation of speech should be content neutral. Widmar v. Vincent, 454 U.S. 263 (1981).

A nativity scene displayed by a city did not violate the establishment clause. Lynch v. Donnelly, 465 U.S. 668 (1984).

Due to the setting and nature of the display, a menorah placed next to a Christmas tree placed outside of a city-county building did not violate the establishment clause while prominent placement of a creche inside a courthouse did. Allegheny County v. Pittsburgh ACLU, 492 U.S. 573, 106 L. Ed. 2d 472 (1989).

The prohibition of peyote used in a religious ceremony does not violate the free exercise of religion. Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876 (1990).

The federal Equal Access Act prohibits high schools from barring student religious club meetings on school premises when other "noncurriculum-related" clubs are allowed access. Westside Community Schools v. Mergens, 496 U.S. 292, 110 L. Ed. 2d 191 (1990).

A public school district's inclusion of prayers at a public graduation ceremony, offered by a member of the clergy at the district's request and direction, violated the establishment clause. Lee v. Weisman, 505 U.S. 77, 120 L. Ed. 2d 467 (1992).

The denial of the use of a school building to a church seeking to exhibit a film when a nonsectarian group would have been allowed the use of the building to show a secular film on the same topic violated the right to free speech. Lamb's Chapel v. Center Moriches, 508 U.S. 384, 124 L. Ed. 2d 352 (1993).

A law that targets religious conduct for distinctive treatment is subject to the most rigorous scrutiny. The regulation of animal sacrifice that effectively prohibited the practices of one sect was void. Church of Lukumi v. Hialeah, 508 U.S. 520, 124 L. Ed. 2d 472 (1993).

The provision of an interpreter by a school district to a student attending a parochial school was permissible when provided as a part of a neutral program benefitting all qualified children without regard to the sectarian-nonsectarian nature of the school. Zobrest v. Catalina Foothills, 509 U.S. 1, 125 L. Ed. 2d 1 (1993).

Special legislation creating a public school district for a village consisting solely of members of a single religious community violated the establishment clause. Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687, 129 L. Ed. 2d 546 (1994).

A state university that funded the printing of a broad range of student publications but denied funding for printing the publication of a student religious group violated free speech guarantees and was not excused by the need to comply with the establishment clause. Rosenberger v. University of Virginia, 515 U.S. 819, 132 L. Ed. 2d (1995).

A school district policy permitting student-led, student-initiated prayer at school football games violated the establishment clause of the 1st amendment because it had the purpose and created the perception of encouraging the delivery of prayer at important high school events. Santa Fe Independent School District v. Doe, 530 U.S. 290, 147 L. Ed. 2d 295 (2000).

Speech discussing otherwise permissible subjects cannot be excluded from a limited public forum, such as a school, on the grounds that it is discussed from a religious viewpoint. A club's meetings, held after school, not sponsored by the school, and open to to any student who obtained parental consent, did not raise an establishment of religion violation that could be raised to justify content-based discrimination against the club. Good News Club v. Milford Central School, 533 U.S. 98, 150 L. Ed. 2d 151 (2001).

The Cleveland, Ohio school choice program that provides tuition aid to parents who may use the money to pay tuition to private, religious schools does not violate the establishment clause. When an aid program is neutral with respect to religion and provides assistance to a broad class of citizens who, in turn, direct the aid to religious schools through individual choice, the program is not subject to challenge. Zelman v. Simmons-Harris, 536 U.S. 639, 153 L. Ed. 2d 604 (2002).

The state of Washington, under its constitution, which prohibits even indirect funding of religious instruction that will prepare students for the ministry, could deny such students funding available to all other students without violating the free exercise clause of the 1st amendment. Locke v. Davey, 540 U.S. 712, 158 L. Ed 2d 1, 124 S. Ct. 1307 (2004).

A legislative mandate requiring reasonable accommodation of religious conduct does not violate establishment clause. Nottelson v. Smith Steel Wkrs. D.A.L.U. 19806, 643 F.2d 445 (1981).

The Establishment Clause of the 1st amendment allows display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. Van Orden v. Perry, 545 U.S. 677, 162 L. Ed. 2d 607, 125 S. Ct. 2854 (2005).

A display of the Ten Commandments in a county courthouse violated the Establishment Clause of the 1st amendment. The government agency's manifest objective in presenting the display may be dispositive of the constitutional enquiry, and the development of the presentation should be considered when determining its purpose. Governmental purpose needs to be taken seriously under the Establishment Clause and to be understood in light of context; an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense. McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 162 L. Ed. 2d 729, 125 S. Ct. 2722 (2005).

A prison regulation allowing a cross to be worn only with a rosary discriminated against protestants, without a "ghost of reason," in violation of the right to the free exercise of religion. Sasnett v. Litscher, 197 F.3d 290 (1999).

Although the sale to private parties of a small parcel of land in a public park ended direct government action constituting endorsement of religion, the proximity of the statue to city property and the lack of visual definition between the city and private land created a perception of improper endorsement of religion in violation of the establishment clause. Freedom From Religion Foundation v. City of Marshfield, 203 F.3d 487 (2000).

A public library that allowed a wide range of uses of its meeting room by non-profit groups violated the 1st amendment by excluding the use of the room for religious services or instruction. Pfeifer v. City of West Allis, 91 F. Supp. 2d 1253 (2000).

Grants to a faith-based counseling organization that integrated religion into its counseling program were unconstitutional when there were insufficient safeguards in place to insure that public funding did not contribute to a religious end. Freedom From Religion Foundation v. McCallum, 179 F. Supp. 2d 950 (2002).

Excluding a religious charitable organization from participation in the Wisconsin State Employees Combined Campaign solely because that organization discriminates on the basis of religion or creed in choosing its governing board and employees is constitutionally impermissible. Association of Faith-Based Organizations, 454 F. Supp. 812 (2006).

Nyquist and public aid to private education. Piekarski, 58 MLR 247.

The role of civil courts in church disputes. 1977 WLR 904.

First amendment-based attacks on Wisconsin "attendance area" statutes. 1980 WLR 409.

Brave new world revisited: Fifteen years of chemical sacraments. 1980 WLR 879.

Lamb's Chapel v. Center Moriches Union Free School District: Creating Greater Protection Religious Speech Through the Illusion of Public Forum Analysis. Ehrmann. 1994 WLR 965.

King v. Village of Waunakee: Redefining Establishment Clause Jurisprudence in Wisconsin. Lanford. 1996 WLR 185.

How Vast is King's Realm? Constitutional Challenge to the Church-State Clause. Gordon. Wis. Law. Aug. 1995.

I,19 Religious tests prohibited. Section 19. No religious tests shall ever be required as a qualification for any office of public trust under the state, and no person shall be rendered incompetent to give evidence in any court of law or equity in consequence of his opinions on the subject of religion.

I,20 Military subordinate to civil power. Section 20. The military shall be in strict subordination to the civil power.

I,21 Rights of suitors. Section 21. [As amended April 1977]

I,21(1) (1) Writs of error shall never be prohibited, and shall be issued by such courts as the legislature designates by law.

I,21(2) (2) In any court of this state, any suitor may prosecute or defend his suit either in his own proper person or by an attorney of the suitor's choice. [1975 J.R. 13, 1977 J.R. 7, vote April 1977]

Every person has an absolute right to appear pro se. Hlavinka v. Blunt, Ellis & Loewi, Inc. 174 Wis. 2d 381, N.W.2d (Ct. App. 1993).

A nonlawyer may not sign and file a notice of appeal on behalf of a corporation. Requiring a lawyer to represent a corporation in filing the notice does not violate the guarantee that any suitor may prosecute or defend a suit personally. A corporation is not a natural person and does not fall with in the term "any suitor." Jadair Inc. v. United States Fire Insurance Co. 209 Wis. 2d 187, 561 N.W.2d 718 (1997), 95-1946.

Sub. (2) gives the right in a civil trial to chose whether to defend oneself personally or to have an attorney, but does not address whether the party may, or may not, be ordered to be physically present at trial when represented. City of Sun Prairie v. Davis, 217 Wis. 2d 268, 575 N.W.2d 268 (Ct. App. 1998), 97-1651.

If a telephone warrant application has not been recorded and there is no evidence of intentional or reckless misconduct on the part of law enforcement officers, a reconstructed application may serve as an equivalent of the record of the original application and can protect the defendant's right to a meaningful appeal. State v. Raflik, 2001 WI 129, 248 Wis. 2d 593, 636 N.W.2d 129, 00-1086.

I,22 Maintenance of free government. Section 22. The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles.

I,23 Transportation of school children. Section 23. [As created April 1967] Nothing in this constitution shall prohibit the legislature from providing for the safety and welfare of children by providing for the transportation of children to and from any parochial or private school or institution of learning. [1965 J.R. 46, 1967 J.R. 13, vote April 1967]

Elementary Secondary Education Act funds may be used in dual enrollment programs to transport children from parochial schools to and from public schools. 65 Atty. Gen. 126.

I,24 Use of school buildings. Section 24. [As created April 1972] Nothing in this constitution shall prohibit the legislature from authorizing, by law, the use of public school buildings by civic, religious or charitable organizations during nonschool hours upon payment by the organization to the school district of reasonable compensation for such use. [1969 J.R. 38, 1971 J.R. 27, vote April 1972]

I,25 Right to keep and bear arms. Section 25. [As created Nov. 1998] The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose. [1995 J.R. 27, 1997 J.R. 21, vote November 1998]

The state constitutional right to bear arms is fundamental, but it is not absolute. This section does not affect the reasonable regulation of guns. The standard of review for challenges to statutes allegedly in violation of this section is whether the statute is a reasonable exercise of police power. State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328, 01-0350.

The concealed weapons statute is a restriction on the manner in which firearms are possessed and used. It is constitutional under Art. I, s. 25. Only if the public benefit in the exercise of the police power is substantially outweighed by an individual's need to conceal a weapon in the exercise of the right to bear arms will an otherwise valid restriction on that right be unconstitutional. The right to keep and bear arms for security, as a general matter, must permit a person to possess, carry, and sometimes conceal arms to maintain the security of a private residence or privately operated business, and to safely move and store weapons within those premises. State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01-0056.

A challenge on constitutional grounds of a prosecution for carrying a concealed weapon requires affirmative answers to the following before the defendant may raise the constitutional defense: 1) under the circumstances, did the defendant's interest in concealing the weapon to facilitate exercise of his or her right to keep and bear arms substantially outweigh the state's interest in enforcing the concealed weapons statute? and 2) did the defendant conceal his or her weapon because concealment was the only reasonable means under the circumstances to exercise his or her right to bear arms? State v. Hamdan, 2003 WI 113, 264 Wis. 2d 433, 665 N.W.2d 785, 01-0056.

Under both Hamdan and Cole there are 2 places in which a citizen's desire to exercise the right to keep and bear arms for purposes of security is at its apex: in the citizen's home or in his or her privately-owned business. It logically and necessarily follows that the individual's interest in the right to bear arms for purposes of security will not, as a general matter, be particularly strong outside those two locations. An individual generally has no heightened interest in his or her right to bear arms for security while in a vehicle. State v. Fisher, 2006 WI 44, 290 Wis. 2d 121, 714 N.W.2d 495, 04-2989.

The most natural reading of "keep arms" in the 2nd amendment is to have weapons. The natural meaning of "bear arms" is to "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person." Putting all textual elements together, the 2nd amendment guarantees the individual right to possess and carry weapons in case of confrontation. However, like most rights, the right secured by the 2nd amendment is not unlimited. District of Columbia v. Heller, 554 U.S. ___, 171 L. Ed. 2d 637, 128 S. Ct. 2783, (2008).

The 2nd amendment right to bear arms, is fully applicable to the states. The due process clause of the 14th amendment incorporates the 2nd amendment right recognized in Heller. However, incorporation does not imperil every law regulating firearms. McDonald v. Chicago, 561 U.S. ___, 130 S. Ct. 3020, ___ L. Ed. 2d ___ (2010).

I,26 Right to fish, hunt, trap, and take game. Section 26. [As created April 2003] The people have the right to fish, hunt, trap, and take game subject only to reasonable restrictions as prescribed by law. [2001 J.R. 16, 2003 J.R. 8, vote April 2003]

II ARTICLE II.

boundaries

II,1 State boundary. Section 1. It is hereby ordained and declared that the state of Wisconsin doth consent and accept of the boundaries prescribed in the act of congress entitled "An act to enable the people of Wisconsin territory to form a constitution and state government, and for the admission of such state into the Union," approved August sixth, one thousand eight hundred and forty-six, to wit: Beginning at the northeast corner of the state of Illinois—that is to say, at a point in the center of Lake Michigan where the line of forty-two degrees and thirty minutes of north latitude crosses the same; thence running with the boundary line of the state of Michigan, through Lake Michigan, Green Bay, to the mouth of the Menominee river; thence up the channel of the said river to the Brule river; thence up said last-mentioned river to Lake Brule; thence along the southern shore of Lake Brule in a direct line to the center of the channel between Middle and South Islands, in the Lake of the Desert; thence in a direct line to the head waters of the Montreal river, as marked upon the survey made by Captain Cramm; thence down the main channel of the Montreal river to the middle of Lake Superior; thence through the center of Lake Superior to the mouth of the St. Louis river; thence up the main channel of said river to the first rapids in the same, above the Indian village, according to Nicollet's map; thence due south to the main branch of the river St. Croix; thence down the main channel of said river to the Mississippi; thence down the center of the main channel of that river to the northwest corner of the state of Illinois; thence due east with the northern boundary of the state of Illinois to the place of beginning, as established by "An act to enable the people of the Illinois territory to form a constitution and state government, and for the admission of such state into the Union on an equal footing with the original states," approved April 18th, 1818.

The Mississippi River is an inland water of Wisconsin and the boat toilet law may be enforced on the entire width of the Mississippi bordering Minnesota and up to the center of the main channel bordering Iowa. 61 Atty. Gen. 167.

II,2 Enabling act accepted. Section 2. [As amended April 1951] The propositions contained in the act of congress are hereby accepted, ratified and confirmed, and shall remain irrevocable without the consent of the United States; and it is hereby ordained that this state shall never interfere with the primary disposal of the soil within the same by the United States, nor with any regulations congress may find necessary for securing the title in such soil to bona fide purchasers thereof; and in no case shall nonresident proprietors be taxed higher than residents. Provided, that nothing in this constitution, or in the act of congress aforesaid, shall in any manner prejudice or affect the right of the state of Wisconsin to 500,000 acres of land granted to said state, and to be hereafter selected and located by and under the act of congress entitled "An act to appropriate the proceeds of the sales of the public lands, and grant pre-emption rights," approved September fourth, one thousand eight hundred and forty-one. [1949 J.R. 11; 1951 J.R. 7; vote April 1951]

III ARTICLE III.

SUFFRAGE

III,1 Electors. Section 1. [As amended Nov. 1882, Nov. 1908, Nov. 1934; repealed April 1986; created April 1986] Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district. [1881 J.R. 26 A, 1882 J.R. 5, 1882 c. 272, vote Nov. 1882; 1905 J.R. 15, 1907 J.R. 25, 1907 c. 661, vote Nov. 1908; 1931 J.R. 91, 1933 J.R. 76, vote Nov. 1934; 1983 J.R. 30, 1985 J.R. 14, vote April 1986]

The legislature can amend the current election statutes, without referendum, so as to make the statutes conform with the 26th amendment to the U.S. Constitution. 61 Atty. Gen. 89.

A proposal to amend a statute to allow nonresident property owners to vote on metropolitan sewerage district bonds, in addition to electors, probably would require the proposal to be submitted to a vote of the electorate under sec. 1. 63 Atty. Gen. 391.

Even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications. However evenhanded restrictions that protect the integrity and reliability of the electoral process itself are not invidious. An Indiana statute requiring citizens voting in person on election day, or casting a ballot in person at the office of the circuit court clerk prior to election day, to present photo identification issued by the government did not violate constitutional standards. Crawford v. Marion County Election Board, 553 U.S. 181, 128 S. Ct. 1610, 170 L. Ed. 2d 574 (2008).

Constitutional law: residency requirements. 53 MLR 439.

III,2 Implementation. Section 2. [As repealed April 1986; created April 1986] Laws may be enacted: