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,
124 S. Ct. 1307,
158 L. Ed 2d 1 (2004). But see Espinoza v. Montana Department of Revenue, 591 U.S. ___,
140 S. Ct. 2246,
207 L. Ed. 2d 679 (2020).
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,
125 S. Ct. 2854,
162 L. Ed. 2d 607 (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,
125 S. Ct. 2722,
162 L. Ed. 2d 729 (2005).
Respondents' status as taxpayers did not give them standing to challenge state tax credits to organizations that awarded scholarships to religious schools. For standing there must be a nexus between the plaintiff's taxpayer status and the precise nature of the constitutional infringement alleged. Tax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are “extracted and spent" knows that he or she has in some small measure been made to contribute to an establishment in violation of conscience. When the government declines to impose a tax there is no such connection between dissenting taxpayer and alleged establishment. Arizona Christian School Tuition Organization v. Winn,
563 U.S. 125,
131 S. Ct. 1436,
179 L. Ed. 2d 523 (2011).
Certain employment discrimination laws authorize employees who have been wrongfully terminated to sue their employers for reinstatement and damages. However, the establishment and free exercise clauses of the
1st amendment to the U.S. Constitution bar such an action when the employer is a religious group and the employee is one of the group's ministers. Thus, in an employment discrimination suit brought on behalf of a minister challenging her church's decision to fire her, the ministerial exception barred the suit. Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission,
565 U.S. 171,
132 S. Ct. 694,
181 L. Ed. 2d 650 (2012). See also Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___,
140 S. Ct. 2049,
207 L. Ed. 2d 870 (2020).
Legislative prayer, while religious in nature, has long been understood as compatible with the establishment clause. As practiced by congress since the framing of the constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society. It is not necessary to define the precise boundary of the establishment clause where history shows that the specific practice is permitted. Any test the court adopts must acknowledge a practice that was accepted by the framers and has withstood the critical scrutiny of time and political change. Town of Greece v. Galloway,
572 U.S. 565,
134 S. Ct. 1811,
188 L. Ed. 2d 835 (2014).
Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian. So long as the town maintains a policy of nondiscrimination, the constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. The quest to promote a diversity of religious views would require the town to make wholly inappropriate judgments about the number of religions it should sponsor and the relative frequency with which it should sponsor each. Town of Greece v. Galloway,
572 U.S. 565,
134 S. Ct. 1811,
188 L. Ed. 2d 835 (2014).
Denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order. A policy of categorically disqualifying churches and other religious organizations from receiving grants under a state playground resurfacing program violated the rights of a church applicant for a grant under the free exercise clause of the 1st amendment. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___,
137 S. Ct. 2012,
198 L. Ed. 2d 551 (2017).
A state civil rights commission violated the free exercise clause when it showed elements of a clear and impermissible hostility toward the sincere religious beliefs of a baker who declined to make a wedding cake for a same-sex couple in violation of a state anti-discrimination law. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___,
138 S. Ct. 1719,
201 L. Ed. 2d 35 (2018).
Retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. The passage of time gives rise to a strong presumption of constitutionality under the establishment clause. American Legion v. American Humanist Ass'n, 588 U. S. ____,
139 S. Ct. 2067,
204 L. Ed. 2d 452 (2019).
The Montana Constitution bars aid to any school controlled in whole or in part by any church, sect, or denomination. Like the grants at issue in
Trinity Lutheran, 582 U.S. ___,
137 S. Ct. 2012 (2017), the no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious. Therefore, the free exercise clause of the
1st amendment to the U.S. Constitution precluded the Montana Supreme Court from applying Montana's no-aid provision to bar religious schools from a scholarship program established by the Montana Legislature. Espinoza v. Montana Department of Revenue, 591 U.S. ___,
140 S. Ct. 2246,
207 L. Ed. 2d 679 (2020).
The refusal of a city to contract with a child welfare agency for the provision of foster care services unless the child welfare agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the 1st amendment. Fulton v. City of Philadelphia, 593 U.S. ___,
141 S. Ct. 1868,
210 L. Ed. 2d 137 (2021).
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).
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. Ass'n of Faith-Based Organizations,
454 F. Supp. 812 (2006).
Nyquist and Public Aid to Private Education. Piekarski. 58 MLR 247 (1975).
The Light of Nature: John Locke, Natural Rights, and the Origins of American Religious Liberty. Heyman. 101 MLR 705 (2018).
A Masterpiece of Simplicity: Toward a Yoderian Free Exercise Framework for Wedding-Vendor Cases. Rogers. 103 MLR 163 (2019).
Constitutional Law—First Amendment—The Role of Civil Courts in Church Disputes. Cunningham. 1977 WLR 904.
First Amendment-Based Attacks on Wisconsin “Attendance Area" Statutes. Woessner. 1980 WLR 409.
Brave New World Revisited: Fifteen Years of Chemical Sacraments. Beyer. 1980 WLR 879.
Lamb's Chapel v. Center Moriches Union Free School District: Creating Greater Protection for 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.
Free Exercise (Dis)Honesty. Oleske. 2019 WLR 689.
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]
As a matter of Wisconsin constitutional law, the right to an appeal is absolute. In order that the right be meaningful, a defendant must be furnished a full transcript—or a functionally equivalent substitute that, in a criminal case, beyond a reasonable doubt, portrays in a way that is meaningful to the particular appeal exactly what happened in the course of trial. The usual remedy when the transcript deficiency is such that there cannot be a meaningful appeal is reversal with directions that there be a new trial. However, error in transcript preparation or production, like error in trial procedure, is subject to the harmless-error rule. State v. Perry,
136 Wis. 2d 92,
401 N.W.2d 748 (1987).
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.
Because a transcript is crucial to the right to an appeal, courts provide additional protection for appellants when they do not have a complete transcript. Under
Perry,
136 Wis. 2d 92 (1987), and
DeLeon,
127 Wis. 2d 74 (Ct. App. 1985), when a trial transcript is incomplete, a defendant may be entitled to a new trial, but only after the defendant makes a facially valid claim of arguably prejudicial error. The
Perry/
DeLeon procedure applies even when the entire trial transcript is unavailable. The court does not presume prejudice when the trial transcript is unavailable. State v. Pope,
2019 WI 106,
389 Wis. 2d 390,
936 N.W.2d 606,
17-1720.
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 Nov. 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 ban on felons possessing firearms is constitutional and that ban extends to all felons, including nonviolent ones. The governmental objective of public safety is an important one, and the legislature's decision to deprive a nonviolent felon, such as the plaintiff, of the right to possess a firearm is substantially related to this goal. State v. Pocian,
2012 WI App 58,
341 Wis. 2d 380,
814 N.W.2d 894,
11-1035.
Silencers are not “arms” for the purposes of the 2nd amendment. The prohibition on possession of a silencer under s. 941.298 does not impose a burden on conduct falling within the scope of the 2nd amendment's guarantee and therefore is not unconstitutional. State v. Barrett,
2020 WI App 13,
391 Wis. 2d 283,
941 N.W.2d 866,
18-2324.
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. 570,
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. 742,
130 S. Ct. 3020,
177 L. Ed. 2d 894 (2010).
The Next Big Gun Case: The Resurrection of the Second Amendment at the New Roberts Court. Ciocchetti. 102 MLR 309 (2018).
Out of the Home and in Plain Sight: Our Evolving Second Amendment and Open Carry in Wisconsin. Duroni. 102 MLR 1305 (2019).
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]
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]
SUFFRAGE
III,1
Electors. Section 1
. [
Amended Nov. 1882, Nov. 1908, and Nov. 1934; repealed April 1986; as 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]
It is clearly within the legislature's province to require any person offering to vote to furnish such proof as it deems requisite that he or she is a qualified elector. Requiring a potential voter to identify himself or herself as a qualified elector through acceptable photo identification does not impose an elector qualification in addition to those set out in this section. League of Women Voters of Wisconsin Education Network, Inc. v. Walker,
2014 WI 97,
357 Wis. 2d 360,
851 N.W.2d 302,
12-0584.
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.
Constitutional law: residency requirements. 53 MLR 439.
III,2
Implementation.
Section 2
. [
Repealed April 1986; as created April 1986] Laws may be enacted:
III,2(2)
(2) Providing for registration of electors.
III,2(3)
(3) Providing for absentee voting.
III,2(4)
(4) Excluding from the right of suffrage persons:
III,2(4)(a)
(a) Convicted of a felony, unless restored to civil rights.
III,2(4)(b)
(b) Adjudged by a court to be incompetent or partially incompetent, unless the judgment specifies that the person is capable of understanding the objective of the elective process or the judgment is set aside.
III,2(5)
(5) Subject to ratification by the people at a general election, extending the right of suffrage to additional classes. [
1983 J.R. 30, 1985 J.R. 14, vote April 1986]
The requirement to present acceptable photo identification comes within the legislature's authority to enact laws providing for the registration of electors under this section because acceptable photo identification is the mode by which election officials verify that a potential voter is the elector listed on the registration list. League of Women Voters of Wisconsin Education Network, Inc. v. Walker,
2014 WI 97,
357 Wis. 2d 360,
851 N.W.2d 302,
12-0584.
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).
III,3
Secret ballot.
Section 3. [
Repealed April 1986; as created April 1986] All votes shall be by secret ballot. [
1983 J.R. 30, 1985 J.R. 14, vote April 1986]
III,4
Residence saved.
Section 4. [
Repealed April 1986; see 1983 J.R. 30, 1985 J.R. 14, vote April 1986.]
III,5
Military stationing does not confer residence. Section 5. [
Repealed April 1986; see 1983 J.R. 30, 1985 J.R. 14, vote April 1986.]
III,6
Exclusion from suffrage. Section 6. [
Repealed April 1986; see 1983 J.R. 30, 1985 J.R. 14, vote April 1986.]
legislative
IV,1
Legislative power.
Section 1. The legislative power shall be vested in a senate and assembly.
An act validating existing sewerage districts previously held to be unconstitutionally organized is within the power of the legislature. Madison Metropolitan Sewerage Dist. v. Stein,
47 Wis. 2d 349,
177 N.W.2d 131.
The power given vocational district boards to levy taxes does not violate this section. The manner of appointing board members is constitutional. West Milwaukee v. Area Bd. Vocational, T. & A. Ed.,
51 Wis. 2d 356,
187 N.W.2d 387.
One legislature cannot dictate action by a future legislature or a future legislative committee. State ex rel. Warren v. Nusbaum,
59 Wis. 2d 391,
208 N.W.2d 780.
