1st Amendment Part 2 - Freedom of Religion

Question 1

What is the relationship between the 1st and 14th amendments with regards to freedom of religion?

Answer 1

the establishment and free exercise clauses are incorporated against the states through the 14th amendment

Question 2

What is the “free exercise clause”?

Answer 2

The free exercise clause prohibits gov interference with religious BELIEFS, but generally does NOT prohibit general conduct. (but see exceptions)

Examples –>

1. gov can’t force EE’s to take religious oaths
2. govs can’t exclude clerics from holding office
3. courts cannot declare a religious belief to be false
4. gov cannot refuse unemployment benefits to someone who quit their job for religious reasons

Question 3

What qualifies as a “religious belief” for the purpose of the “free exercise” clause?

Answer 3

Not defined, but need not be organized or involve supreme being.

Question 4

What is the standard of scrutiny with regards to “free exercise clause”?

Answer 4

Technically, it’s strict scrutiny.

HOWEVER –> gov has never found compelling enough interests to justify discrimination.

Question 5

What is the issue that arises with free exercise clause and conduct?

Answer 5

In General:
- Free exercise clause DOES NOT require religious exemptions from generally applicable regulations that burden religious conduct

Example:
-banning peyote OK even if it affects indigenous religious conduct

Exceptions:

• imposing unwanted minister (employment)
• amish schooling

Question 6

What is the “establishment clause”?

Answer 6

• compels gov to act neutrally to religion

- From 1st amendment - “prohibits the gov from making any law respecting the establishment of a religion”

Question 7

What is the standard of review for the “establishment clause”?

Answer 7

Action will be INVALID unless:

1. has a SECULAR purpose;
2. has primary EFFECT that neither advances nor inhibits religion;
3. does not produce eXcessive gov entanglement with religion

(SEX test)

Question 8

What is the rule re: “establishment clause” and sect preference?

Answer 8

-violates establishment clause unless NECESSARY to achieve a COMPELLING state interest

(court won’t even reach SEX (lemon) test)

Question 9

With regards to the “establishment clause”, what is the general rule of thumb with regards to cases that DON’T involve financial aid or education?

Answer 9

Law favoring/burdening specific religious group –> will be invalid

• Example –>
  1. exempting certain religious groups from state registration requirements
  2. requiring employers to give sabbath off
  3. christmas display of only religious symbols

Law favoring/burdening a large segment of society that happens to include religious groups –> will be upheld
- Example –>
1. stores closing on sunday
2. christmas display including all holidays
3. displaying 10 commandments when purpose is not predominately religious
-

Question 10

With regards to the “establishment clause” - what is the rule with regards to aid to colleges or hospitals?

Answer 10

• will be UPHELD as long as the program requires aid to be used for NONRELIGIOUS purposes, and recipient agrees

Question 11

With regards to the “establishment clause” - what is the rule with regards to aid to grade schools or high schools?

Answer 11

• SEX test will be more strictly applied.
• will usually pass “secular purpose” but may fail on excessive entanglement if there are detailed regs to prevent advancement of religion

Question 12

With regards to the “establishment clause” - what is the rule regarding recipient based aid?

Answer 12

Gov may give aid to DEFINED CLASS OF PERSONS as long as the class is defined without reference to religion.

• this is true even if most people receiving aid will use it to attend religiously affiliated school.

Question 13

With regards to the “establishment clause” - what is the rule regarding religious activities in public schools?

Answer 13

School SPONSORED religious activity —> Invalid (even if voluntary

• Example –>
  1. ending classes early for voluntary religious lessons;
  2. prayer, bible reading, posting 10 commandments in school or football games
  3. requiring creation science to be taught

School ACCOMMODATION of religious activity –> OK
Example –>
1. ending classes early to allow children to go to off school religious classes;
2. Allowing religious student groups to meet in unused classrooms as would any group

ALSO, if a school permits members of public and private to use school property after hours, it cannot deny religious organization right to meeting merely bc religious topics will be discussed