Chapter 5Chapter 5

11stst Amendment Amendment Religion ClausesReligion Clauses

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Religion & the 1Religion & the 1stst Amendment Amendment

““Congress shall make no law respecting an Congress shall make no law respecting an establishment of religionestablishment of religion, or , or prohibiting the prohibiting the free exercisefree exercise thereof . . .” thereof . . .”

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Religion & the 1Religion & the 1stst Amendment AmendmentFree Exercise IssuesFree Exercise Issues Freedom to Freedom to believe believe is the closest thing to an absolute is the closest thing to an absolute

rightrightWarren Court’s move from a theistic to philosophical definition of Warren Court’s move from a theistic to philosophical definition of “religion” “religion” Four components of “religion”Four components of “religion”

Belief in God or equivalentBelief in God or equivalent Acceptance of an external moral codeAcceptance of an external moral code Associational/community dimension – “church”Associational/community dimension – “church” Demonstrated sincerity of belief Demonstrated sincerity of belief

Limits on free Limits on free exercise exercise of religionof religion PolygamyPolygamy Withholding medical services/inoculationsWithholding medical services/inoculations Poisonous snake handlingPoisonous snake handling Drug use (peyote cult) in Native Am. Church (legalized by Texas Drug use (peyote cult) in Native Am. Church (legalized by Texas in 1970 and by U.S. in 1995)in 1970 and by U.S. in 1995) Time, place, manner restrictions on religious solicitationsTime, place, manner restrictions on religious solicitations Compulsory patriotic rituals – W.VA v Barnett (1943)Compulsory patriotic rituals – W.VA v Barnett (1943) Compulsory school attendance – WI v Yoder (1972)Compulsory school attendance – WI v Yoder (1972)

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Religion & the 1Religion & the 1stst Amendment Amendment

Free Exercise IssuesFree Exercise Issues Sherbert v Verner (1963) – laws or policies negatively Sherbert v Verner (1963) – laws or policies negatively

impacting religious freedom had to pass the “strict impacting religious freedom had to pass the “strict scrutiny” standardscrutiny” standard

there is a there is a compellingcompelling state interest state interest

the “least restrictive means” possible has been used the “least restrictive means” possible has been used to accomplish that interestto accomplish that interest

Unemployment Division of Oregon v Smith (1990)Unemployment Division of Oregon v Smith (1990)

strict scrutiny abandoned in favor of “general strict scrutiny abandoned in favor of “general applicability” standardapplicability” standard

If law applies equally to all . . .If law applies equally to all . . . Incidental infringements on religious exercise is tolerableIncidental infringements on religious exercise is tolerable Only laws which appear to specifically target a religious Only laws which appear to specifically target a religious

practice fall afoul of 1practice fall afoul of 1stst Am; can only be justified by meeting Am; can only be justified by meeting strict scrutiny standards strict scrutiny standards

Employment Div. (of Oregon) v Smith, 1990Employment Div. (of Oregon) v Smith, 1990

“Smith Test”“Smith Test”

NEUTRAL GENERAL APPLICABILITY

NO YES

SHERBERT TEST (Sherbert v Verner) 1963

VALID LAW YES NO

SHERBERTStrict Scrutiny:

“compelling state interest” standard

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Religion & the 1Religion & the 1stst Amendment Amendment

Free Exercise IssuesFree Exercise Issues Church of the Lukumi Church of the Lukumi

Babalu Aye v City of Babalu Aye v City of Hialeah (1993) Hialeah (1993)

Even under “Smith test” Even under “Smith test” the law fails the law fails

Law clearly targets a Law clearly targets a religious practice . . . religious practice . . . killing animals for killing animals for purpose other than food purpose other than food consumptionconsumption

Legitimate police powers Legitimate police powers could have been achieved could have been achieved far short of the total ban far short of the total ban on animal sacrifice. on animal sacrifice.

Reaction to Smith TestReaction to Smith Test

Passage of the Religious Freedom Restoration Act of 1993 – Passage of the Religious Freedom Restoration Act of 1993 – imposed strict scrutiny standard of Sherbert ruling on every imposed strict scrutiny standard of Sherbert ruling on every level of gov’t. when its actions negatively impact religious level of gov’t. when its actions negatively impact religious freedomsfreedoms

City of Boerne v Flores, 1997City of Boerne v Flores, 1997 Texts invariably say Court struck down the RFRA as a Texts invariably say Court struck down the RFRA as a

violation of separation of powers principle (Congress violation of separation of powers principle (Congress imposing a standard of constitutional interpretation on Court)imposing a standard of constitutional interpretation on Court)

Actually only invalidated the portion of the act which bound Actually only invalidated the portion of the act which bound this standard on the states/localitiesthis standard on the states/localities

Gonzales v. O Centro Espirita Beneficenteuniao do Vegetal, Gonzales v. O Centro Espirita Beneficenteuniao do Vegetal, 20062006

Invokes RFRA as binding on U.S. gov’t action, i.e., Sherbert ruleInvokes RFRA as binding on U.S. gov’t action, i.e., Sherbert rule

Ban on import of hallucinogenic tea for religious purposes under the Ban on import of hallucinogenic tea for religious purposes under the Controlled Substances Act overturnedControlled Substances Act overturned

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The Establishment ClauseThe Establishment ClauseThe Court’s evolving interpretation of the clauseThe Court’s evolving interpretation of the clause Prohibits establishing an “official church” or Prohibits establishing an “official church” or

preferring one church/denomination over others for preferring one church/denomination over others for benefits and privileges – benefits and privileges – “nonpreferentialism“nonpreferentialism” ” allowing for allowing for “accommodation”:“accommodation”:

position held by Scalia, Thomas (and Rhenquist); position held by Scalia, Thomas (and Rhenquist); presumed to be position of Roberts and Alito; presumed to be position of Roberts and Alito; position of Court prior to Everson case in 1947position of Court prior to Everson case in 1947

Everson case introduced Everson case introduced “separationist”“separationist” principle principleJefferson’s metaphor of a “wall of separation” in 1802 Jefferson’s metaphor of a “wall of separation” in 1802 private letter to the Danbury Baptist Associationprivate letter to the Danbury Baptist Associationeven that case did not prohibit the challenged state action even that case did not prohibit the challenged state action involvedinvolvedwas basis of striking down prayer & Bible reading in was basis of striking down prayer & Bible reading in school [Engle v Vitale (1962), Murray v Curlett & Abington school [Engle v Vitale (1962), Murray v Curlett & Abington School Dist. v Schempp, 1963]School Dist. v Schempp, 1963]

The Lemon TestThe Lemon TestCurrent (though weakening) Supreme Court Current (though weakening) Supreme Court standard for evaluating any “state” action standard for evaluating any “state” action challenged on “establishment clause” grounds challenged on “establishment clause” grounds ((Lemon v. KurzmanLemon v. Kurzman, 1971), 1971) Does law have a predominantly secular purpose?Does law have a predominantly secular purpose? Does law have a “neutral impact” which neither Does law have a “neutral impact” which neither

advances nor restricts religion?advances nor restricts religion? Does law create an “excessive entanglement” between Does law create an “excessive entanglement” between

the Church and State?the Church and State? If the answer to either of the first two questions is “NO” If the answer to either of the first two questions is “NO”

oror the answer to third question is “YES”, the law is voidthe answer to third question is “YES”, the law is void

Application of the “Lemon test” to “parochiaid”Application of the “Lemon test” to “parochiaid” InvalidatedInvalidated supplementing parochial school teachers’ salaries for supplementing parochial school teachers’ salaries for

secular subjects, secular subjects, reimbursements for administering/grading tests reimbursements for administering/grading tests required by staterequired by state, grants for building maintenance and repair, tax , grants for building maintenance and repair, tax benefits, tuition reimbursement, “auxiliarly services” such as benefits, tuition reimbursement, “auxiliarly services” such as counseling, testing, instructional materials (although not textbooks), counseling, testing, instructional materials (although not textbooks), after-school enrichment courses, after-school enrichment courses, teachers’ salaries and materials for teachers’ salaries and materials for remedial instruction [Agostini v Felton (1997)], remedial instruction [Agostini v Felton (1997)], school district created school district created for handicapped children of a particular sect, required teaching of for handicapped children of a particular sect, required teaching of “creation-science” [Edwards v Aguillard, 1987] moment of silence for “creation-science” [Edwards v Aguillard, 1987] moment of silence for prayer/meditation [Wallace v Jaffree, 1985)], displaying of Ten prayer/meditation [Wallace v Jaffree, 1985)], displaying of Ten Commandments in classroomsCommandments in classrooms

Application of the “Lemon test” Application of the “Lemon test” UpheldUpheld funding for secular buildings at religious colleges, funding for secular buildings at religious colleges,

textbook loans, general purpose funds for secular purposes in textbook loans, general purpose funds for secular purposes in religious colleges, vocational rehab assistance for student at religious colleges, vocational rehab assistance for student at religious college, sign language interpreter for student at religious college, sign language interpreter for student at religious high school, moment of silence when purpose not religious high school, moment of silence when purpose not specifiedspecified

Outside of School: Marsh v Chambers, 1983Outside of School: Marsh v Chambers, 1983 Lemon test acknowledged but not followedLemon test acknowledged but not followed Clear historical practice trumps legal theoryClear historical practice trumps legal theory Incorporation principles do not permit binding a stricter standard Incorporation principles do not permit binding a stricter standard on the states than those bound on the U.S.on the states than those bound on the U.S.

Lynch v Donnelly (1984)Lynch v Donnelly (1984) Waltz v Tax Commission (1970) – pre-LemonWaltz v Tax Commission (1970) – pre-Lemon

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Evolution of “Separationist Interpretation” of Evolution of “Separationist Interpretation” of the Establishment Clausethe Establishment Clause

Prohibits endorsing the Christian (or any other Prohibits endorsing the Christian (or any other religion) in any aspect over other religions; prohibits religion) in any aspect over other religions; prohibits conveying a message of endorsement – O’Connor conveying a message of endorsement – O’Connor

Prohibits expressing any “approval” or Prohibits expressing any “approval” or “endorsement” of religion vs. non-religion or “endorsement” of religion vs. non-religion or irreligion – Douglas, Souterirreligion – Douglas, Souter

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Evolution of “Separationist Interpretation” of Evolution of “Separationist Interpretation” of the Establishment Clausethe Establishment Clause

Prohibits any coercive element in state policy Prohibits any coercive element in state policy Lee v Wiseman – clergy-led invocation (1993)Lee v Wiseman – clergy-led invocation (1993)

Santa Fe Independent School District v Doe – student-led Santa Fe Independent School District v Doe – student-led invocation at athletic events (2000)invocation at athletic events (2000)

Court rejected claim of valid secular purposeCourt rejected claim of valid secular purpose

Foster free expressionFoster free expression

Solemnize sporting eventsSolemnize sporting events

Promote good sportsmanship and student safetyPromote good sportsmanship and student safety

Establish appropriate environment for competition Establish appropriate environment for competition

Kennedy did not rely on Lemon test in either of these Kennedy did not rely on Lemon test in either of these opinions, but stressed that government may not “coerce opinions, but stressed that government may not “coerce anyone to support or participate in any religion or its anyone to support or participate in any religion or its exercise” exercise”

Current Status of Lemon TestCurrent Status of Lemon Test

Never overruled by Court, although Scalia Never overruled by Court, although Scalia alleged in a concurring opinion in 1993 that a alleged in a concurring opinion in 1993 that a majority of his colleagues no longer held to itmajority of his colleagues no longer held to it

It continues to be invoked, although a It continues to be invoked, although a majority is willing to embrace an majority is willing to embrace an “accommodationist” approach within the “accommodationist” approach within the framework of the Lemon test, i.e., the 3 framework of the Lemon test, i.e., the 3 prongs have become more pliable prongs have become more pliable

Some schools have:Some schools have:forbidden a student from reading the Bible in the forbidden a student from reading the Bible in the school bus.school bus.forbidden a student from praying before a meal forbidden a student from praying before a meal in the cafeteria.in the cafeteria.refused to accept a student history essay on the refused to accept a student history essay on the life of an historical figure because the essay life of an historical figure because the essay described Jesus.described Jesus.refused to allow a Bible study group to be refused to allow a Bible study group to be organized by students while permitting political, organized by students while permitting political, philosophical, science, and other special interest philosophical, science, and other special interest groups. groups. refused to allow a “Jesus costume” in a class refused to allow a “Jesus costume” in a class Halloween partyHalloween party

Equal Access Act of 1984Equal Access Act of 1984

If school receives federal money and If school receives federal money and allows non-curricular activities and club allows non-curricular activities and club meetings (a limited public forum), then it is meetings (a limited public forum), then it is unlawful to deny student the right to meet unlawful to deny student the right to meet for religious activities as long as for religious activities as long as

Participation is voluntaryParticipation is voluntary

Student-initiated and not sponsored by the schoolStudent-initiated and not sponsored by the school

Not disruptive and follows any “time, place, Not disruptive and follows any “time, place, manner” regulations applicable to other groupsmanner” regulations applicable to other groups

Must have equal access to all school facilities and Must have equal access to all school facilities and assets made available to other groupsassets made available to other groups

““Equal access” rulings have shown Court’s Equal access” rulings have shown Court’s willingness to let free speech/association willingness to let free speech/association rights trump establishment clause concerns, rights trump establishment clause concerns, i.e., state may not deny any benefit to a i.e., state may not deny any benefit to a group (in relation to other groups) just group (in relation to other groups) just because the group has a religious purposebecause the group has a religious purpose

Test of the Access LawsTest of the Access Laws

Board of Education of the Westside Community Board of Education of the Westside Community Schools v. MergensSchools v. Mergens (1990) (1990) Christian Club denied access – ruled in favor of Christian Club denied access – ruled in favor of

studentsstudents

Lamb’s Chapel v. Center Moriches Union Free Lamb’s Chapel v. Center Moriches Union Free School DistrictSchool District (1993) (1993) Free speech cannot be arbitrarily censured because of Free speech cannot be arbitrarily censured because of

content content

The Good News Club v. Milford Central SchoolsThe Good News Club v. Milford Central Schools (1999)(1999) Schools must allow religious groups access to schools Schools must allow religious groups access to schools

if they allow others access.if they allow others access.