Moot Court Bench Memo

Following her death, the community expanded and adopted a religious text, Madonna’s Sex, along with readings from Kinsey, Masters and Johnson. The community, as a whole believes themselves to be followers of a religion and part of a religious community. The group also holds Sunday school classes in which minors can engage in religious activity and participate in the community. As part of the curriculum, C. V. V. M’s Sunday school, teaches about sexual education and the hedonistic pleasures of sex.

This education is taught by way of instructional erotic videos, adding from Madonna’s Sex, excerpts from Kinsey and Masters and Johnson, and music videos by Madonna herself. This curriculum was approved by the church officials, and they believe it to be valuable to the religious community and instill necessary beliefs regarding sexuality and personal faith. As this internet based religion grew in popularity, more of the public became aware of their activities. This caused a Virginia Beach reporter to run a few articles regarding the sexual aspects of this community and their Sunday school classes.

The public concern and publicity soon caught the attention of District Attorney Gerry Fallowed Jar. , who accused C. V. V. M. Of violating the Virginia statutes regarding obscene materials. As a result, the heads of the church, along with teachers of the Sunday school program, were arrested and charged with violating said statutes. Judgment Below Moot Court Bench Memo By Marcella-Lawrence Virginians obscenity statutes. The respondents appealed this decision and it was upheld by the Fourth Circuit Court of Appeals.

Judge Jimmy Swaggers stated “(1) that CM is not a church and hence its program finds no refuge in a freedom of religion claim; (2) In any event, the course on sexuality includes materials that are ‘obscene’ ND available to minors, and hence can no find refuge in the First Amendment’s protections for speech. ” This lead the defendants to appeal to the United States Supreme Court, and the Court granted certiorari. Questions Presented l. Is the Church of the Virtual Virgin Madonna a religion as defined under the First Amendment of the United States’ Constitution? II.

Does the state have a compelling interest to intervene in the affairs of this religious organization? Ill. Is the material, included in the Sunday school program, obscene? Holding The Court finds that the Church of the Virtual Virgin Madonna is a religion and is retorted under the First Amendment. The “disciples” and participants of the church should be able to freely practice without intrusion from the state or interference from the public. The members of the church hold sincere beliefs, follow a set of religious practices, and include a comprehensive religious text.

The freedom to practice one’s own religion is a fundamental belief held by the Constitution, and C. V. V. M. Fits that description. The church should have an expectation to practice freely and teach their children as they see fit. The state has failed to demonstrate harm to the children of the C. V. V. M. Immunity, or to the minor children of the State of Virginia. Lacking an interest of significant magnitude, the state cannot intervene into the affairs of the church. The Court finds the Sunday school curriculum to be religious in nature and not obscene.

Participants should feel free to honor their religious beliefs and teach their children according to the tenets of their faith. Respondents’ convictions should, therefore, be vacated and the previous Judgment should be reversed. Opinion presented by chief Justice Lawrence introduction: Over the past decade an organization called the Church of the Virtual Virgin Madonna (C. V. V. M. Has grown in popularity and established a group of followers. Although this institution has been practicing for years, and has over two million parishioners, it has only recently come to the attention of this Court.

The church’s ideology and teachings include provocative and, allegedly, obscene material. The tenets of the faith are taught through the readings of Madonna’s Sex, through group discussions on the internet, along with Sunday school teachings for the children of the parish. The Sunday school classes include readings from their religious text, sexual education videos, and excerpts from Kinsey, Masters and Johnson, along with e arrested. They were subsequently convicted for violating Virginians obscenity statutes, and all convictions were upheld upon conclusion of the initial appeal to the Court of Appeals for the 4th Circuit.

It is this Court’s opinion that the decisions held by the lower court are in violation of these individuals’ Constitutional right to religion and the free exercise thereof. With regards to this matter, the respondents’ conviction should be vacated and the previous decision should be reversed. The Church of the Virtual Virgin Madonna was acting in its religious capacity, in a sincere manner, hoping to benefit and enrich the lives of their followers. Regardless of the sexual nature of the material, it clearly holds religious and artistic value to the parishioners and therefore it is not obscene in context.

Although, when dealing with minor children it is important to consider their safety, there has been no clear demonstration of harm which constitutes a compelling state interest. These teachings are clearly important to the followers of this faith, and the Court should not be limiting any citizen’s religious freedoms simply because the practices seem strange or unconventional. The followers of the Church of the Virtual Virgin Madonna should be permitted to practice their faith according to its tenets and teach their children accordingly. L.

Does the institution known as the Church of the Virtual Virgin Madonna fit the criteria to be recognized as a religion, and therefore protected under the First Amendment? The fundamental question before this Court, upon which all other answers rely, is whether the Church of the Virtual Virgin Madonna can be recognized as a formal religion, protected by the First Amendment, specifically what is commonly referred to as the Free Exercise Clause. The Free Exercise Clause of the First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… In order to answer whether a specific institution is protected by this clause, the Court must determine if the institution is, in fact, a religion. This Court refers to previous cases, regarding questions of a religious nature, to determine what precedent has been set and what guidelines the Court must use to qualify an institution as a religious organization. Many similarities were found and many parallels drawn to the receding cases discussed below. While reviewing previous cases, this Court came to the conclusion that the content of the religious beliefs are mostly irrelevant. It is not within the Jurisdiction of the State to decide whether the teachings and text of a religion are probable. ” United States v. Ballard, U. S. 78 (1944). To determine whether the Church of the Virtual Virgin Madonna is a religion, this Court’s criteria included: 1. ) “sincere religious beliefs” (Serge) 2. ) Religious belief “which is not merely a personal preference but has an institutional quality about it” (Brown) 3. The organization can be analogical to “unquestioned and accepted religions” (Mammal) 4. ) Adheres to and follows the Courts precedent.

The Court chose to look to sincerity first, because it is the most important aspect of the Court’s criteria. The standards which the Court utilizes are not weighted equally. Sincerity should held as the highest of those standards. The above mentioned criteria were fashioned with the understanding that perception is reality. It does not matter what the content of the belief is, as long as the person perceives it to be true. To make a determination regarding the religious nature of C. V. V. M. The landmark case United States v. Serge 380 U.

S. 163, (1965), questioned the constitutionality of Provision 6 0) of the Universal Military and Training Act, specifically a portion defining the term “religious training and belief. ” This provision detailed the requirements for exempting a conscientious objector from military service for religious reasons. The Court, here, determined “religious belief” to mean “sincere religious beliefs which [are] based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent” (Serge).

It is the opinion of this Court that the Church of the Virtual Virgin Madonna is sincere in their practices and their beliefs. Their sincerity is demonstrated through continued worship, discussion on the internet, and the placement of their children into the Sunday school courses. The placement of parishioner’s children into such courses is demonstrative, in and of itself, of the follower’s sincerity. They expend time and personal resources in pursuit of their faith, and continue to do so with regularity.

The states claim is that this organization started as a newsgroup, or chat room on the internet, and that the followers are no more than fans of Madonna and therefore they cannot be sincere in their beliefs. In other words, the state finds C. V. V. M. To be no more than well-organized fan page. The Court disputes the state’s claim and feels that the Church of the Virtual Virgin Madonna has adequately demonstrated its sincerity. Sincerity is not the only determining factor though; C. V. V. M. Qualifies as a religious organization as understood by the Brown Test.

The Fifth Circuit Court of Appeals identified three major factors, which should be considered when determining if a belief is religious: 1. ‘Religious’ nature of a belief depends on whether the belief is based on a theory of man’s nature or his place in the universe… ” 2. Religious belief “which is not merely a personal preference but has an institutional quality about it… ” 3. Followers must have faith “which is sincere. ” Brown v. Penal, 441 F soup. 1382, (1977). With regards to this matter, the Court finds these three factors to be met.

As for part one, “belief is based on a theory of man’s nature or his place in the universe,” C. V. V. M. ‘s ideology seeks to answer questions regarding the nature of man. They monumentally believe that sexuality is an inherent part of man’s nature and therefore should be recognized, understood, and taught. Part two of the above mentioned test, states that the belief cannot consist of “merely personal preference” and that the beliefs have an “institutional quality. ” The Church of the Virtual Virgin Madonna cannot be considered solely a personal preference because that preference is shared with two million fellow parishioners.

This community has been established for over ten years and includes a hierarchy of priests/priestesses, officials, and Sunday school teachers, thus fulfilling the “institutional quality’ acquirement. As for the third factor, sincere faith and belief, it is evident to this Court that the members of C. V. V. M. Are true believers, and are sincere in their thoughts and actions. This is demonstrated through their commitment to the organization, discussions that have continued over lengthy periods of time on the internet, and the Sunday school classes to which parents voluntarily place their minor children.

The specifically disputes the sincerity of the member’s beliefs and the institutional quality of the religion. The state asserts the position that the parishioners are no more than rotenone fans, whose ideology cannot be taken seriously. The Court finds the states position to be inaccurate. It is the Courts position that the criteria set forth in Brown has been met. The followers of this religion demonstrate “good faith” (Ballard), and share a common belief in a Supreme Being. They also have an organized institution comprised of priests/priestess and two million disciples (members). The commitment to their faith is exactly what defines C.

V. V. M. As a religion. Along with fitting the three tier test presented in Brown, this church’s ideology should be compared to other formally recognized religions. In Mammal v. Yogi 592 F. 2 d 197 ad (Cirri. 1979), a case regarding the teachings of transcendental meditation in a public high school, the Court was required to determine if these teachings were religious in nature, and therefore in violation of the Establishment Clause. Although the Court ultimately did decide these teaching to be “advancing religion and religious concepts,” there was some difficulty defining a non-theist religion.

In the concurring opinion, Justice Adams felt the precedent being used during this case did not hold a modern view of religion, and expanded the concept of religion to those that can be analogies to formally accepted institutions: “The modern approach thus looks to the familiar religions as models in order to ascertain, by comparison, whether the new set of ideas or beliefs is confronting the same concerns, or serving the same purposes, as unquestioned and accepted “religions. ” (Mammal). Whereas this comparison is not required to define an institution as a religion, the Court finds that the similarities only further C. V. V. M. s position. The Church of the Virtual Virgin Madonna can demonstrate a belief in a Supreme Being. It also utilizes a religious text and holds a set of beliefs to which the church follows. As one can clearly construe, the “disciples” (followers) consider Madonna to be their Supreme Being. Parishioners believe that, upon her death, Madonna entered a higher plane of existence and now resides inside the internet. This is analogous to the Jude-Christian concept of Heaven. They also consider a book written by Madonna herself to be essential to their religious teaching and practices; they not only read from this book, but teach from it as well.

This idea is also analogous to the Jewish Torah or the Christian Bible. The only difference is the content, and the court may not reject these religious incepts solely on the basis that it is “incomprehensible. ” (Serge). The Church of the Virtual Virgin Madonna holds strong beliefs regarding sexuality and the role that it should play in one’s life. This concept, although dramatically different in content, is taught by most major religions. The Church of the Virtual Virgin Madonna holds beliefs that do not mimic those of Jude-Christian religions, but they can be analogical to one another.

It is important to note that the First Amendment does not only apply to the religious majority in our society. It is this Court’s opinion that the intention of the Free Exercise Clause was to protect minority religions. According to the factors discussed in Brown, Serge and Mammal, the Church of the Virtual Virgin Madonna is, in fact, a religion. The members, not only hold sincere beliefs, but they have a Supreme Being, a religious text, and tenets to which they follow. The Church of the Virtual Virgin fear of ridicule or prosecution. II.

Does the State have a compelling interest to intervene and limit the actions of the Church of the Virtual Virgin Madonna? In order for the State to intervene with proceedings of the Church of the Virtual Virgin Madonna, there must be a vital interest to the state, or some action of “significant magnitude” that warrants intervention. The state is required to demonstrate what that interest is, and why it is significant enough to deny a religious community protection under the Free Exercise Clause. Intervention by the state creates a substantial burden on the religious community (Reno v.

American Civil Liberties Union, Wisconsin v. Yoder, Ginsberg v. New York). For the parents, and their children, who wish to adhere to the tenets of their faith, it creates an unfair restriction as to how they practice their religion. Because intervening on this level creates such a heavy burden to the community, it is of the utmost importance that the state demonstrate what compelling interest is being threatened (Miller v. California, Ginsberg v. New York, Wisconsin v. Yoder). Absent that evidence, this community should feel free to practice their faith with no limitations.

Just as in the case of Wisconsin v. Yoder 406 U. S. 205 (1972), in order for the state to create restrictions that “[interfere] with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief y its [restriction], or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause” (Yoder). This matter parallels Wisconsin v. Yoder in many ways. At the core of Yoder is a question of religious freedom and parental rights.

The Court had to decide if the state had the right to force Amiss parents to keep their children in school past the eighth grade. The Amiss not only believed higher education to be unnecessary, but it went against their religious beliefs. They believed that breaking these tenets is dangerous to their children. Nevertheless, the state felt it had a duty to keep children in school and claimed education to be a compelling state interest. The Amiss community was, ultimately, protected under the First Amendment, specifically the Free Exercise Clause.

The Court concluded “a State’s interest in universal education… Is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment. ” Similarly, this Court finds that Virginia is lacking a compelling state interest. With regards to this matter, Fallowed v. C. V. V. M. , the state claims they have an interest in protecting the “welfare of children” (Ginsberg). Whereas that may be true, the state does not demonstrate what that harm is with any specific, supporting details or allegations.

Without a clear understanding of the state’s allegations, the Court finds that the general welfare of a child is not a “compelling interest of a significant magnitude” (Miller) that warrants state intervention and the violation of an entire community religious freedoms. In addition, the Court finds that circumventing parental decisions, and substituting the government’s values in place f those of the parents, is more “harmful to minors” (Ginsberg). There is a question as to which party holds the burden of proof with regard to this matter. It is the opinion of this Court that the burden of proof lies with the petitioning party.

If the state argues that there is a “compelling interest” which requires state intervention will remedy that interest. The petitioning party should be required to provide evidence as to what the state’s interest is, and clearly demonstrate through discovery that their claim is, more likely than not, accurate. The burden should not lie with the respondents. The state has asserted this claim and should be the responsible party for proving that the allegation is true. It is this Court’s opinion that the burden of proof lies with the petitioning party.

The State claims that the Sunday school curriculum is harmful to the children of the C. V. V. M. Community. They further argue that the sexual education portion of the Sunday school course exposes minors to obscene material, which will have a lasting psychological effect. Petitioner argues that the parents do not have the right to consent to a minor’s participation in a class that, potentially, poses a threat to their motional welfare. The state also proposes that children outside this community are at risk to being exposed inadvertently to material that neither they, nor their parents consented to.

In addition, the state claims that it is concerned for the moral welfare of the State of Virginia. It is this Courts finding that these classes do not pose a threat to any child, and the state is significantly lacking in evidence to support their claims; the burden of proof has not been met by the state. The Court addresses this issue in more detail below. With regards to the claim that the Sunday school teachings expose the children to obscene material, the Court finds this to be lacking in significance, for reasons previously discussed, and an unwarranted exercise of authority.

First, the Court disputes that the material is in fact obscene. Secondly, if the Court were to concede to the notion that the teachings of the Church did include obscene resources, does this create a compelling state interest? The Court concurs with the opinion held in Cohen v. California, that any adult who does not consent to specific material “could effectively avoid further bombardment of their sensibilities simply by averting their eyes” (Cohen). Members of this parish actively participate in discussion, along with group activities and Sunday school classes; they gather in a similar fashion to other religions.

These activities are voluntary, including the Sunday school classes, and if one did not wish to attend, one is not required to. If in fact a member found such material to be offensive to their sensibilities, or to that of their child, that member can leave. The Court finds it more of a burden to the religious community to restrict the classes than it is to ask anyone opposed to the material to leave. Furthermore, what specific harm comes from the viewing of the C. V. V. M. Sunday school’s allegedly obscene material? The state claims that it could hold lasting, psychological harm, yet they have put forth no evidence to support that claim.

If the State claims that there is the potential for physical or sexual abuse, the state already has laws that protect the child from such abuse, and can prosecute such an offender. Intervening because of potential harm that has yet to occur seems overly intrusive, especially when there are already State laws regarding the general welfare of children. Secondly, the parents of this community consent to placing their children into these classes. It is the parents’ right to direct the rearing of their children, and to decide what is appropriate for their individual children. The parents of the C. V. V. M. Immunity not only believe the curriculum to be appropriate, but believe it to be a necessary part of their child’s the parents with the restriction of their faith. Regardless of whether the classes were restricted, parents could teach their own children this material at home. Forcefully requiring the sexual education classes to be taught at home, instead of in a church setting, seems to be creating a distinction without a difference. The parent’s claim to authority in their own household to direct the rearing of their children is basic structure in our society’ (Reno v. American Civil Liberties Union, Yoder, Ginsberg v.

New York). The Court finds that limiting the parents’ right to choose what religious courses their child may attend is an undue burden on them, and violates their constitutional right to the free exercise of their religion. Finally, the state proposes that the classes pose a threat to the public at large. The State argues that the children of the Church of the Virtual Virgin Madonna’s religious community will interact with children outside of that community and expose them to explicit material that will harm them psychologically. Again, the state must provide evidence to support this claim.

As concluded in The City of Erie v. Pass A. M, all evidence must be demonstrated through discovery materials, and admitted as fact, not mere speculation. “[W]e have never accepted mere conjecture as adequate to carry a First Amendment burden,” The City of Erie v. Pass A. M 529 U. S. 277 (2000). The Court finds that the threat of harm alluded to by the state lacks evidentially backing. Furthermore, the Court refutes that the given reasons qualify as “a state interest of sufficient magnitude” (Yoder). The Court agrees that children must be protected from potential threats that exist.

However, if we limit the religious activity of the Church of the Virtual Virgin Madonna, the restriction may unintentionally limit consenting adults from viewing the material or participating in service. A state’s interest in protecting a child “does not Justify an unnecessarily broad suppression of speech addressed to adults. The government may not “reduce the adult population to only hat is fit for children” (Reno v. UCLA). Furthermore, this material is not being biblically broadcasted or utilizing public airwaves; consenting adults must actively seek out the material.

No unwilling individual would be exposed to the teachings of the church. Therefore, the Court finds there to be no public threat of harm. The Court concludes there to be a significant lack of evidence demonstrating harm to either the children of the C. V. V. M. Community or the children of Virginia. The burden that would be placed upon the religious community is unconstitutional and unwarranted. Parents have the right to expose their children to the religious teaching of their choice, and the facts presented in this case do not create a compelling state interest that permit intervention.

Furthermore, the restriction on the Church of the Virtual Virgin Madonna would limit the access of consenting adults who chose to practice this religion. The state has not demonstrated an interest of any significant magnitude to warrant restricting the religious practices of this community. The Court also finds that the risk of exposure to non-consenting adults, or children outside the community, is insignificant. The material needs to be actively sought and poses no more of a risk than any other material on the internet.

Lacking any further information, the Court finds the decision by the lower court to violate the constitutional rights of the Church of the Virtual Virgin Madonna and its parish. As is the case with religion, there is no blanket definition of obscenity, and it is up to the Court to determine on a case by case basis if the proposed material is obscene. Obscenity may include, but is not limited to, pornography, magazines, film, public usage of profanity, etcetera. As noted in Miller v. California 413 U. S. 15, 93 S. Ct. 2607, 37 L. De. D 419 (1973), “We acknowledge the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. “(Miller). Obscenity is not protected speech under the First Amendment. Therefore, when determining these cases, one must do so carefully and thoroughly, as to not gratuitously limit citizens’ freedoms. Upon the conclusion of Roth v. United States, 354 U. S. 476 (1957), Justice William Brenna, Jar. Stated that obscenity is “utterly without redeeming social importance” and, therefore, as not protected by the First Amendment.

This is the beginning of an applicable test for the Court to define obscenity. In 1973, Justices Lewis F. Powell, Jar. , and William H. Rehnquist, along with Chief Justice Warren Burger redefine the Court’s concept of obscenity. The three-tier test, restated in Miller v. California, is the Court’s current standard for defining what is obscene, also known as the Miller Test: (a) “whether the ‘average person’, applying ‘contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest … ,” (b) “… Hither the work epic’s or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law… ” (c) “… Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. ” Miller v. California 413 U. S. 15, 93 S. Ct. 2607, 37 L. De. Ad 419 (1973). Material must satisfy all parts of the Miller Test to qualify as obscene. It is also necessary to consider if the term “average person” used in section (a) expands to the other two sections or if sections (b) and (c) are left to the determination of the Court?

It is this Court’s conclusion that the phrase “average person” was deliberately excluded from sections (b) and (c). Therefore, the Court’s standards are required to resolve sections (b) and (c), not the standards held by an “average person”. In addition, it is this Court’s opinion that the religious material and teachings of the Church of the Virtual Virgin Madonna do not satisfy the standards of the above mentioned test and are not obscene.

With regards to the first standard of the Miller Test, “(a) whether the “average person, applying contemporary community standards “would find that the work, taken as a whole, appeals to the prurient interest … ,” this Court believes the community standards” should be that of the group in which the materials were intended for. To understand who or what the materials were intended for, one needs to have a firm understanding of what the material in question is and its purposes for production. The Church officials, and teachers from C. V. V.

M. ‘s Sunday school classes, were arrested and charged for violating Virginians obscenity statutes. Specifically, the Court is questioning the Sunday school curriculum which includes a course on sexual education. This sexual education section covers excerpts from the sacred text, Madonna’s Sex, readings from Kinsey, Masters and Johnson, along with instructional videos that depict actual and simulated acts of intercourse, and music videos created pleasures of sex which are traditionally frowned upon by the Victorian or Christian social mores.

That being said, this community, clearly, has a very different concept of sexuality. Their views on what is appropriate are different than the majority standard. Since the Church of the Virtual Virgin Madonna is a community that mainly gatherer the internet, they should not be held to the standard of the Virginian community, or that of the United States as a whole. The standard should be that of the community itself. The interests of this community should not be overlooked. Under a National Constitution, fundamental First Amendment limitations on powers of the States do not vary from community, to community, but this does not mean that there are, or should be, fixed, uniform, national standards of what precisely appeals to the “prurient interest” or is “patently offensive” (Miller). The phrase “prurient interest” is defined as “material having the tendency to excite lustful thoughts. ” Every community across the United States holds different views as o what is considered to appeal to prurient interest. This community primarily congregates online, and its members are residents of numerous states.

Therefore the only standard the Court can hold the Church of the Virtual Virgin Madonna to is their own. “People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity…. ” (Miller) The state claims that the standard should be that of the people of Virginia, who would find this material to be “patently offensive”. As stated above, C. V. V. M is a diverse community imprisoned of residents from many states. The Court finds it unreasonable to hold them to an unfamiliar standard held by persons outside the community.

The Court would also add the “contemporary standards” in the United States, as a whole, have shifted. The people have become more accepting of sexuality in general, as well as, same sex couples, sexuality of women and premarital sex. It is not clear to this Court that the “contemporary standards” regarding this topic, are as traditionally focused as they once were. The second tier of the Miller Test states, “(b) whether the work depicts or ascribes, in a patently offensive way, sexual conduct specifically defined by the applicable state law,” (Miller).

The State of Virginians statute regarding obscenity does not contribute much that Miller does not already explain. It is for that reason the court felt it unnecessary to add to this opinion. The “applicable state law’ essentially describes known precedent. The third requirement of the above mentioned test, questions the value of any materials alleged to be obscene; “(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. ” (Miller). The materials alleged to be obscene relate to the Sunday school sexual education course.

These materials include reading from the sacred text, Sex, along with reading from Kinsey, Masters and Johnson, as well as instructional videos that depict acts of heterosexual and homosexual couplings, and many of Madonna’s music videos. The State held that the resources used to teach this course were obscene; it follows then that the State believes these resources hold no “literary, artistic, political, or scientific value. ” (Miller). The first product that the Court wishes to address is the sacred text,

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