First Amendment - Religion Flashcards
What are the religion clauses in the First Amendment?
1) Establishment Clause
2) Free Exercise Clause
What is the Establishment Clause?
Cannot make a law that furthers or establishes a religion.
What is the Free Exercise clause?
Government cannot prevent or interfere with the exercise of person’s religion
What is the Lemon Test for the Establishment Clause?
A law must have these to fulfill the Establishment Clause:
1) A secular Purpose;
2) A Secular Effect;
3) Excessive Entanglement
Welsh v. US
Will the Court determine whether a belief is true or false when deciding their claim?
No. The court will not determine the truth of the religion. They will only examine whether the individual believes their beliefs. The court will examine their sincerity and the role the belief plays in their life.
US v. Ballard
What are the two freedoms included in the freedom of religion?
1) The freedom to believe whatever they want.
2) The freedom to act in accordance with that belief.
The freedom to believe is absolute, however, the freedom to act is not.
Does an individual have to believe their religion the same way as the majority of the religion, or can they follow the beliefs in their own way to get the First Amendments protection?
The Court has stated that the dominant views in a faith are not determinative in assessing whether a particular belief is religious in nature.
An individuals belief may differ from the mainstream religion, but those beliefs are still protected if they are sincere.
What is the overarching rule of the Free Exercise Clause?
Government cannot compel or punish religious beliefs; people may think and believe anything they want. However, the government may regulate the conduct of beliefs.
Employment Division v. Smith
What is the current scrutiny for the Free Exercise Clause?
Rational Basis Review
Religion cannot set the laws, the government cannot examine religion when making laws.
Employment Division v. Smith
What is the only time freedom of religion will bar application of a generally applicable law?
When the freedom of religion is combined with another Constitutional law.
Wisconsin v. Yoder
Can the Government require compulsory schooling, even if it violates a person’s religion?
No. The court will not require compulsory schooling if it will violate a person’s religious beliefs.
US v. Lee
Can individuals claim their religion does not allow them to pay social security taxes?
No. The Court stated that the free exercise clause should not interfere with the governments ability to run their procedures.
Bowen v. Roy
Can the Free Exercise Clause dictate government procedures?
No. The Free Exercise clause affords an individual protection from certain forms of government compulsion, however, it does not afford the individual a right to dictate government’s procedures.
Hosanna Church v. EEDC
Can the government regulate whom a church makes their ministers?
No. The religions have the final say as to whom their ministers will be, even if their decision is discriminatory.
Cutter v. Wilkinson
Can the government accommodate religions?
Yes. The Government can accommodate religious practices without violating the establishment clause.
Cutter v. Wilkinson
What is the test for how much government accommodation is allowed?
Elevating the accommodation of religious observances over an institutions need to maintain order and safety.
The accommodation must be measured so that it does not override other significant interests.
Must also fulfill a compelling government interest, the context of the statute also matters.
Locke v. Davey
Can a state limit the application of a scholarship to a field that is non-religious in nature?
Yes. The state can deny funding for religious beliefs and not violate the free exercise clause.
What are the three theories of the establishment clause?
1) Strict Separation
2) Neutrality Theory
3) Accommodation
What is the theory of strict separation for the establishment clause?
To the greatest extent possible, government and religion should be separated. The government should be, for the most part, secular; religion should be entirely in the private realm of society.
What is the theory of Neutrality in the establishment clause?
The government should be neutral toward religion; that is, the government cannot favor religion over secularism or one religion over others.
What is the Accommodation Theory for the Establishment Clause?
The Court should interpret the Establishment Clause to recognize the importance of religion in society and accommodate its presence in government. Under this approach, the government violates the establishment clause only if it establishes a church or coerces religious participation.
Allegheny v. ACLU
What is the overarching purpose of the Establishment Clause?
The Establishment Clause means the government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution’s affairs.
Allegheny v. ACLU
Can the Government put up religious symbols on government property?
Yes, but it depends on the context of the symbol. The government’s use of symbols will be unconstitutional if it have the effect of endorsing a religious belief. Must examine the context of the symbol, its location, and what is around it.
Lemon v. Kurtzman
What is the Lemon Test to determine if there is a violation of the Establishment Clause
1) Statute must have a secular legislative purpose;
2) Primary Effect must be one that neither enhances nor inhibits religion;
3) Must not foster an excessive government entanglement.
Hernandez v. Commissioner
Can the Government favor one religion over another?
No. the government violates the establishment clause if they favor one religion over the rest. Can only do so if strict scrutiny is met.
Hernandez v. Commissioner
What is the test to determine if the government is favoring one religion over the others?
1) Is the action/ statute facially discriminatory
2) If it is not facially discriminatory, then apply the Lemon Test.
Do the following situations fulfill the first requirement of the Lemon Test (Secular Purpose)?
1) The 10 commandments posted in every classroom?
2) 1 Minute mandatory prayer/ moment of silence;
3) Schools that teach evolution must teach creationism too;
4) Businesses must be closed on Sunday.
1) Violates the First Amendment because no secular purpose.
2) Law clearly intended to bring prayer back into schools. So no secular purpose;
3) The court held that there was no secular purpose to creationism. So no secular purpose.
4) Upheld this law because having a day of rest could have a secular purpose.
What has the court stated in regards to when a law is acceptable under the second requirement of the Lemon Test (neither advances nor inhibits religion)?
The Court has stated that a law can create an exception within a statute for a religion but they cannot create a law that only benefits religion.
Do the following situations fulfill the requirement of the second Lemon Test Prong (neither advances nor inhibits religion)?
1) Excluding religions from the law that does not allow discrimination in hiring based on religion?
2) Employees must be allowed to take their Sabbath day off?
1) Upheld because it allows religions to advance their own religion.
2) Invalidated because the statute goes beyond having an incidental or remote effect. It advances a religious purpose.
Under the third prong of the Lemon Test (Prohibition of Excessive Entanglement), what will be considered a violation?
A law violates the third prong when it reburies a comprehensive, discriminating, and continuing state surveillance. So, basically, some entanglement is alright. But the entanglement cannot be excessive.
Windmar v. Vincent
An University allowed most organizations to use their facilities, however, religious organizations were not allowed to. Did the Court allow this?
No. If the state wanted to limit the use of the facilities in this way, it must fulfill strict scrutiny. The university is discriminating against student groups and speakers based on their religion. This is protected by religion and speech.
Westside v. Mergens
Can the government pick and choose organizations that are allowed to use their facilities?
No. Once the government has made a location publicly available, it must be available to everyone. No matter their political basis, religion, etc.
Rosenberger v. University of Virginia
Can the government provide funding to religious organizations without violating the First amendment?
Yes. Providing funds for a religious organization is alright and would not violate the First Amendment as long as it is neutral towards religion.
Santa Fe School District v. Doe
Do student lead prayers violate the First Amendment?
Yes. The Court has consistently stated that student lead prayers violate the Establishment Clause.
Santa Fe School District v. Doe
Why do student lead prayers violate the First Amendment
Student prayer at school traditionally subjects students to it who do not wish to participate.
When these prayers are given, the listening audience may feel as though it is a public expression of the views of the majority and would make them feel left out.
McCreary County v. ACLU of Kentucky
The 10 Commandments were placed within the Courthouse. Was this allowed?
No. The principle of the First Amendment mandates government neutrality. When the government acts with ostensible and predominate purpose of advancing religion, it violates the neutrality and shows it favors a certain religion over others.
Van Orden v. Perry
Moses was holding the 10 Commandments on Courthouse Grounds.
Was this allowed?
yes. The court focused on the context of the symbol. Simply having religious content does not run afoul of the First Amendment.
What is the overarching rule of the Establishment Clause?
it is designed to avoid the coercion of others to be forced to do/think/believe something religious by the government.
Can students in school be allowed to have released time to study religion while at school? What is the determining factor?
The court held that allowing students to be released from normal classes is unconstitutional if it occurred on school grounds. However, it is allowed if it occurred off school grounds.
Is prayer in public schools allowed when done by:
1) a student;
2) teacher;
3) Outside clergy
1) unconstitutional;
2) unconstitutional;
3) Unconstitutional.
Prayer in schools is always unconstitutional.
Engel v. Vital
Is prayer before a graduation ceremony constitutional?
No. Prayer before a graduation ceremony is unconstitutional even if it is a non-denominational prayer because it is still government supporting that religion.
Abington School District v. Schempp
Is bible reading at the beginning of the school day constitutional?
No. The court invalidated this law because they were mandatory parts of the curriculum.
Epperson v. Arkansas
Is a law that required the teaching of Creationism constitutional?
No. because this was motivated for religious purposes and is unconstitutional. This violates the primary purpose part of the Lemon Test
Marsh v. Chambers
Is the state’s employment of a minister to begin the legislative session with a prayer constitutional?
Yes. this practice was upheld because of a long standing tradition.
