1st Amendment - Freedom of Association and of Religion

Question 1

What is the basic principle of freedom of association?

Answer 1

The right to membership in a group.

Question 2

What standard of review is used for laws prohibiting or punishing group membership?

Answer 2

Strict scrutiny

Question 3

What must the government show to prohibit or punish group membership?

Answer 3

1. the person is actively affiliated with the group
2. the person has knowledge of the group’s illegal activities, and
3. the person has the specific intent of furthering those illegal goals.

Question 4

What standard of review is used for laws requiring disclosure of group membership?

Answer 4

Strict scrutiny
(allowed if relevant to a job function)

Question 5

Does the freedom of association ever protect an individual’s right to discriminate?

Answer 5

Generally no, unless

1. intimate association (can always discriminate)
2. discrimination is integral to the expressive activities of the group (e.g. KKK, used to be Boy Scouts)

Question 6

Can the free exercise clause be used to challenge a facially neutral law of general applicability that negatively impacts a religious group?

Answer 6

No. (Think Smith, the peyote case)

Question 7

What constitutional provision does the government violate when it denies a person benefits who quit because the government did not accommodate their religious observance needs?

Answer 7

The Free Exercise Clause.

Question 8

What must the government show to defeat a challenge based on the Establishment Clause?

Answer 8

1. the law has a secular purpose,
2. the law’s primary effect is neither to advance nor inhibit religion,
3. there must not be excessive government entanglement with religion

Question 9

What level of scrutiny is used to evaluate a restriction on religious speech?

Answer 9

Strict scrutiny

Question 10

May the government sponsor religious activity in schools?

Answer 10

No.
But note: religious community groups must have the same access to school facilities after hours as other community groups.

Question 11

Can schools have a moment of silence (without mentioning prayer) during the school day?

Answer 11

No. School prayer is unconstitutional, even if disguised as a “secular moment of silence”

Question 12

May governments ever give assistance to parochial schools?

Answer 12

Yes so long as the money is not going towards religious instruction.

Also, the govt can give parents school vouchers, which they can choose to use on parochial schooling.