Establishment Clause Flashcards
The basics of the establishment clause
All justices agree that individual consience is protected, meaning no coersion in religeous matters.
What is the current approach for the establishment clause
Anything justifed historically is ok, however historical acceptance of a practice does not validate it under the establishment clause (school prayer?)
For example, Legislative prayer is ceremonial deism, not really religion just tradition.
What did Zelman, and later Malkin, establish that brought us out of the era of contestation?
What the establishment clause does not forbid, the free exercise clause requires
Zelman: Financial assistance to families for tuition aid to private schools, including religious schools
Carson v. Makin: More tuition assistance
Why was the moment of silence amendment to a state law still unconstitutonal?
Moment of silence amendment invalidated because no secular purpose of silent prayer added
Why was the 10 commandment display in McCreary struck down but the one in Van Orden allowed to stay?
In McCreary, the display had a predominantly religious purpose.
In Van Orden the 10 commandments were surrounded by other displayes & had a context more of a set of laws then as a religeous text.
Why was the cross alowed in the American Legion case?
the WWI Peace Cross as symbol of more than religion; The cross was symbolic of the dead in the war & a symbol of peace, not religion
When is public money allowed to go to religios organizations?
When there is true public choice.
You can take government loans to go to school to study theology
The standard for burdening religion
When religion is expressly/uniquely burdened or when secular interests are protected, but religion is not, use strict scrutiny.
generally applicable laws
The burdens of generally applicable laws, like drug laws, could not violate FE. But, FE mixed with another rights, Hybrid rights, (like the rights of parents) can then override a valid law
Amish parents not wanting their kids to have to go to public school after the age of 14
The ministerial exception
The smith requirment of strict scrutiny does not apply for internal church activities
discrimination vs. hostility towards religion?
While discrimination against religion will trigger strict scrutiny, hostility will also require SS.
Masterpiece Cakeshop (there was hostility to religion in the claim)
What is religion?
Practically any sincerely held belief. close to conscience.
truth can’t be test of religion protection. Can’t jail someone because a jury decides a religious doctrine isn’t true
Welsh test
If someone holds beliefs which are purely ethical or moral but still impose a duty of conscience … those beliefs hold a place in their life that is parallel to god in a religious persons life
Basically, of it is like religion, then its good enough
refuting religeous beliefs
Court;s can’t decide what is really a religion but claims can be refuted by bringing a religeous scholar o establish that your beliefs are not those of the religion.
The courts cannot judge truth, only sincerity - L.
