Congress' Power Over Religious Freedom Flashcards
Free Exercise Clause
this protects peoples rights to practice or to not practice religion.
Smith (1990) Facts
Two people got fired from their job for using peyote as part of their native religion.
Smith- rule
Applying a rational basis test, the court held that a neutral law of general applicability that incidentally burdens religion doesn’t violate the free exercise clause.
Smith- majority by Scalia
He makes the point here that the first amendment does not distinguish between protecting religious beliefs and religious conduct. thus, this means that the free exercise is not absolute.
- when we start letting people do whatever they want, then things start to get sticky because there are so many religions.
yes, we want to protect people to believe in what they want to believe in, this is fundamental, however, we can’t just Gove religions a free pass to break the law, and here- drug use was breaking the law.
why did Scalia not use strict scrutiny test
many will question why scalia did not use the sherbet test, but here that was because this was not only about the free exercise clause, but about criminal law as well.
O’Connor- concurrence
agreed with the holding but believed that anything having to do with strict scrutiny should be suspect and subject to strict scrutiny.
True or false- is smith still the law of the land?
IT SURE IS!! But a majority of the court wants to overrule so this is not indefinite
What was the aftermath of smith
congress passes the RFRA as a pushback to smith to make sure that free exercise was protected
Burwell v Hobby Lobby
- this was a case where employers did not want to include birth control under their health insurance because of their religious beliefs.
- rule: scouts ruled that the employers passed the RFRA test and were not required to provide this insurance for contraceptives
hobby lobby- majority
alito, robetrs, thomas, Scalia
hobby lobby dissent
sotomayor, kagan breyer, and rag
this has nothing o do with getting in the way of peoples rights under smith.
Fulton 2021
Facts: The city of phili contracted with private foster agencies including catholic social services to help foster children. The Catholic service did not accept same-sex marriage or unmarried individuals. City stopped referring people to CSS and denied them an exception to their nondiscrimination policy.
rule: Governments can prohibit religious entities from discriminating against or causing other harm so long as it does so in a general rule that applies to everyone.
majority in Fulton
this was unanimous
Roberts opinion: the city policy that denies CSS an exception to the nondiscrimination policy is not neutral nor generally applicable. Thus, it needs to be examined through strict scrutiny.
- Ends must be compelling gov interest and the means must be narrowly tailored to achieving the ends.
a. The city has failed to demonstrate how the policy is narrowly tailored to a compelling gov interest. Instead, this would cause fewer people to be fostered since they would stop referring to an organization, even if they were not allowing same-sex couples.
b. While the city’s interest in promoting equality is important, it is not compelling enough to deny CSS’s ability to secure and approve foster families.
was smith overruled
nope! it is still the law of the land.
robbers said that there was reason to overrule smith here because the law was not generally applicable.
however the following justices wrote opinions wanting to overrule
justices who want to overrule smith:
Alito, Thomas-, Gorsuch fuck smith
1. They are lowkey terrible in their concurrence- basically stating that discriminating against the gays is not the same as discriminating against race.
Barrett and kav- fuck smith- needs to be replaces, plus anything involving religion needs to be looked at under strict scrutiny
Master Cakeshop
Rule: Baker is not free to serve gay people
- especially cause the civil rights commission had written some nasty things about religion instead of being neutral.
COVID CASES- WHAT IS IMPORTANT
SEE THE SHIFT WHEN ACB JOINS THE COURT AND TAKES RBG’S PLACE. She was the one vote in Roman Catholic Diocese that was the first covid case that struck down a state ordinance to keep distance and limit functions during covid/
Boerne
facts: a Church wants to expand but they cannot because of San Antonio zoning authorities stating that the church was located in a historic preservation district governed by the ordinance forbidding new construction. Church sought to override this through the RFRA that was passed by Congress.
boerne- rule
CONGRESS DOES NOT GET TO PASS SOMETHING LIKE THE RFRA AS A RESPONSE TO THE SUPREME COURT JUST BECAUSE THEY DID NOT LIKE THE RULING.
- there is a test that congress. must pass to use section 5 of the 14th amendment
boerne test for congress to use §5
what congress does has to be congruent and proportionate and must be remedial NOT substantive.
- that means that they has to remedy not substantive in that it creates and defines laws - substantive is the job of the Court
substantive is the job of whoooooo???
THE COURTS PER MARBURY V MADISON
