AMEND 1 : Establishment [DONE] Flashcards
Lukumi Babalu
Instant Facts: The city of Hialeah passed ordinances forbidding the sacrifice of animals in religious ceremonies. The Santeria religion includes animal sacrifice and members of the religion challenged the ordinances on First Amendment freedom of religion grounds.
Black Letter Rule: A law that burdens freedom of religion and is not generally applicable to all must be narrowly drawn to achieve an important and compelling governmental objective.
How does Establishment cross over into Free Speech concerns?
While speech is protected by ensuring its full expression even when the government PARTICIPATES, the Establishment Clause of the First Amendment is a specific prohibition on forms of state INTERVENTION in religious affairs
This distinction is crucial in cases where religious PRACTICE takes the form of speech
Sherbert
Instant Facts: Sherbert (P) was unable to find work because she could not work on Saturdays, her Sabbath. The state denied her unemployment benefits.
Black Letter Rule: Denial of government funded benefits because of religious reasons to a person who is otherwise eligible unconstitutionally infringes on their right to free exercise of religion.
Least restrictive to serve a compelling government interest.
Sherbert: When assessing criteria for unemployment benefits you should allow for religious exemption.
Smith
Instant Facts: Alfred Smith and Galen Black were both fired for using peyote, but the state denied them unemployment benefits.
Black Letter Rule: Generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.
Smith: If truly general, just need a rational basis for the law, and then it is fine.
RFRA: Religious freedom restoration act. Tried to implement the Sherbert Principle across the board + against federal and state governments.
City of Boerne v. Flores [14th]
RFRA fails for the state (invalidated RFRA as it was invoked against states and their subdivisions, holding that the statute had exceeded the remedial powers of Congress under the AMEND14)
[Kait Note: I think that this is only in establishment bc of J. Stevens Concurrence]
J. Stevens Concurrence in City of Boerne
RFRA could be seen as a “law respecting an establishment of religion” that violates the First Amendment because it provided religious authorities with rights of litigation that would be unavailable to atheists or agnostics
majority opinion did not base its decision on the Establishment Clause.
Lemon [OLD]
three-pronged test used to determine whether a law violates the First Amendment’s Establishment Clause.
- Secular Purpose [can’t be religious purpose] &
- Main effect of the law neither advance nor inhibit religion &
- Law must not foster an excessive government entanglement with religion [not too involved with religion]
no longer the prevailing standard used by the U.S. Supreme Court to evaluate potential violations of the Establishment Clause. The Court has shifted its approach to focus more on historical practices and understandings
Why do we not follow Lemon or endorsement test anymore?
abandoned due to the chaos they caused in lower courts, their inconsistent results in similar cases, and the legislative minefield they created.
Why was Burwell not establishment?
In the Hobby Lobby case, the Court was not addressing a situation where the government was accused of endorsing or favoring a particular religion, but rather a situation where a federal law was alleged to infringe upon the religious freedoms of certain corporations
RFRA
The Religious Freedom Restoration Act (RFRA) is a federal law enacted by Congress in 1993 to secure the right to free exercise under the First Amendment
was enacted in response to the Supreme Court’s decision in Employment Div. v Smith and was designed to restore a compelling-interest test for laws that burden a person’s exercise of religion. This applies to every agency and official of the federal, state, and local governments, and to all federal and state law, whether adopted before or after the RFRA’s enactment
It applies to all government actions, even those that are not neutral laws of general applicability
reinstated pre-Smith protections and rights, and parties suing under RFRA must have at least the same avenues for relief against officials that they would have had before Smith
[RFRA still applies and continues to play a significant role in U.S. law, as evidenced by its application in cases such as City of Boerne v. Flores etc.]
Carson v. Makin [Tension Between E & FE]
If the religious school meets the educational criteria the government cares about, then you can’t exclude the religious schools because that is a free exercise problem. Bigger on free exercise and smaller on establishment.
Facts: Court held that Maine’s nonsectarian requirement for its tuition assistance program violated the Free Exercise Clause of the First Amendment. The program was found to exclude otherwise eligible schools based on religious exercise
Establishment & Exercise
decision was based on the principle that a state’s antiestablishment interest does not justify excluding some members of the community from an otherwise generally available public benefit because of their religious exercise
Pure Establishment:
A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause [like Trinity Lutheran]
AMEND 14 & Establishment
The U.S. Supreme Court has interpreted that Congress’s power under the Fourteenth Amendment is broad, but not unlimited, especially in relation to the Establishment Clause of the First Amendment.
The Establishment Clause prohibits the federal government and the states, through the 14th Amendment, from establishing any religion or involving themselves actively in religious activities
However, the Fourteenth Amendment does not impose more stringent First Amendment limits on the states than the founders imposed on the Federal Government
While Congress has broad power to enforce the command of the Fourteenth Amendment, its power is limited to adopting measures to enforce the guarantees of the Amendment. It does not grant Congress the power to restrict, abrogate, or dilute these guarantees. Therefore, neither Congress nor a state can validate a law that denies the rights guaranteed by 14.
Lee v. Weisman
Majority of the court held that no, even a nondemoniation national prayer is not ok because even though it is not coercing it is endorsing and that is enough to be establishment problem.
Elk Grove v. Newdow
Striking example of the way the court uses standing doctrine and political question doctrine to avoid deciding a question that is a bit awkward.
Clear desire in congressional record to emphasize and extinguish the religious character of American life.
Seems to endorse religion, violates the establishment clause.
What does SCOTUS do: Shrink the test and say endorsement is not a big deal if its not coercion. Or go the way the majority did: to say “no standing.” The father does not have standing because the parents are divorced and father does not have custody.
Didn’t want to ditch no endorsement test, but it was awkward.
Court has moved in the direction of being more about coercion and less about endorsement lately.
Dissent says free exercise right: Private speech not government speech, he gets to have his prayers, free exercise and free speech interests are the one that should prevail in these situations. Employee of the school is not sufficient to create establishment clause problem. 3 justices dissent.
Majority glossed over establishment clause.
Zelman
Facts State taxpayers (P) challenged Ohio’s (D) school voucher program on Establishment Clause grounds.
Black Letter Rule A state educational voucher program that provides financial aid to a broad class of citizens, who in turn direct government aid to religious schools as a result of their own independent, private choices, does not offend the Establishment Clause.
Dissent: The teaching of religion will be subsidized by the taxpayer dollars provided.
