1st amendment cases- free exercise, establishment clause

Question 1

Sherbert v. Verner

unemployment not for those who do not work on saturdays bc religion

Answer 1

• The Court applied strict scrutiny to this burden on religion and found that refusing to pay benefits violated the First Amendment.
• Even facially neutral laws can be
  unconstitutional if they hinder someone’s
  ability to practice their religion

Question 2

Employment Division v. Smith

Rule and policy concerns

Answer 2

▪ Government can enforce neutral
laws of neutral applicability even
when they burden religious
expression.
▪ Policy concerns: ensuring
government can function, respect
for popular sovereignty, dislike
of subjectivity inherent in
balancing analysis, and treating citizens equally.

Question 3

Religious Freedom Restoration Act

Government shall not
substantially burden a person’s exercise of
religion even if the burden results from a
rule of general applicability, except as
provided in subsection (b)

Answer 3

b) EXCEPTION Government may
substantially burden a person’s exercise of
religion only if it demonstrates that
application of the burden to the person—
(1)is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of
furthering that compelling governmental
interest.

Question 4

Religious Freedom Restoration Act applies only to

Answer 4

Federal Government!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Question 5

Establishment Clause

Trinity Lutheran v. Comer

State con: Money from public treasury cant go to church/religion

Answer 5

▪ The majority viewed this as solely a free
exercise issue instead of an establishment clause issue.
▪ The majority applied strict scrutiny and declared that laws targeting religious institutions for different treatment than secular institutions violated the First Amendment

Question 6

Kennedy v. Bremerton

The coach praying on the field case

Answer 6

1. The majority held that Coach Kennedy’s speech was not government speech that could be policed more than a private individual’s speech could be.
2. The majority hints at a history and tradition test to be used going forward about whether the government has violated the Establishment Clause but doesn’t give much guidance about how to apply it.
3. The Court indicated that it was not enough for an outside observer to think the
   government might be endorsing religion for there to be an Establishment Clause
   violation.
4. The majority thought of this as a religious freedom case more than an Establishment
   Clause case.

Question 7

Establishment Clause

Government Speech v. Private Speech

Answer 7

Goverment Speech
- Government is allowed to express opinions
and (1) does not need to be viewpoint
neutral and (2) can usually require
employees to convey its message

Private Speech
- Government restrictions on private
speech are subject to viewpoint
discrimination and compelled speech
rules.
- Government employees have much
broader First Amendment rights when
speaking off the job.

Question 8

Kennedy v. Bremerton
- The majority opinion

4 points

Answer 8

▪ Coach Kennedy was not engaged in
government speech.
▪ Coach Kennedy’s First Amendment
rights were violated.
▪ Establishment Clause concerns were
weak and couldn’t override Coach
Kennedy’s Free Exercise Rights.
▪ Establishment Clause should be
interpreted using a history-and-
tradition test.

Question 9

The Supreme Court has imposed a high bar to finding an Establishment Clause violation in order to maximize an

Answer 9

individual’s religious liberty

Question 10

A desire for strict policing of government endorsement/support of religion is not necessarily based on

Answer 10

hostility to religion