Civil Rights and First Amendment

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Updated: Mar 28, 2022
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How does the text define civil rights?

Civil rights are the freedom from unequal treatment. To have civil rights is to have the freedom to be able to participate in all aspects of a society, “to vote, use public facilities, and exercise equal economic opportunity.” It takes the government to protect the civil rights of the people but protecting the rights of some can infringe the rights of others by forcing prejudice people to accept a society that they are not accustomed to, a diversified society.

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What is selective incorporation and how does it work?

Selective incorporation is a process that the Supreme Court uses to decide which rights are to be applied to the state government in order to protect the Bill of Rights from the states. When a case was brought to trial against the civil rights, the courts had to then decide which rights needed to be protected. The Bill of Rights was originally created to protect the people from the government but later found that to protect the civil rights, the Bill of Rights now have to be protected from the states as well, under the Fourteenth Amendment to life, liberty, and property.

What was the Establishment clause designed to do?

The Establishment clause was designed to prevent the government from declaring and enforcing a national religion because the First Amendment protects the people’s right to freedom of religion without the government’s interference. This is how the separation of church and state began.

What was the ‘Sherbert’ test and what replaced it (tell me the cases and how the tests worked)?

The Sherbert or balancing test was based on two qualifications. The first is if the government is preventing an American from practicing their religion and second, is there a justifiable reason for the government to insist the American to comply. Adell Sherbert is a Seventh-Day Adventist and is forbidden to work Saturdays per her religion.

Ms. Sherbert’s employer terminated her due to refusing to work Saturdays causing her to file for unemployment. Her unemployment benefits were denied because she refused employment with other companies that required her to work Saturdays as well. This denial caused her to have to file a lawsuit in order to try to obtain her unemployment benefits but the courts needed to ensure that first, the government acknowledged that they would have prevented her from practicing her religion, and second, the government had no reason to prevent her from practicing her religion.

The Sherbert or balancing test was replaced by a Neutrality Test. Another case was when two men employed by a drug rehab center were terminated because they failed a drug test as a result of using a hallucinogen while participating in a Native American ritual. Their unemployment benefits were denied due to Oregon’s drug laws and as a result, they filed a lawsuit. They felt the ban on peyote did not apply to them because it was a part of a ritual.

The Neutrality Test was now in effect and the Oregon Drug Law was a law of neutrality and did not target a specific group of people but applied all people, therefore the two men lost their case. The eradication from the Sherbert or balancing test to the Neutrality Test makes it a little tougher to hold the government responsible for interfering in religious expression.

What is the preferred position and how does it work?

The First Amendment protects freedom of speech, religion, press, assembly, and the right to petition the government. The first right listed is the freedom of speech and is a priority protected as a “preferred position.” If conflicts arise one of the first considerations is, do these rights conflict with the freedom of speech and that is because the existence of a democratic society depends on the freedom of speech as a fundamental right.

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Civil Rights and First Amendment. (2019, Oct 03). Retrieved from