First Amendment: Religion

Question 1

The Free Exercise Clause

Answer 1

The Free Exercise Clause provides that the government “shall make no law… prohibiting the free exercise [of religion]…” This clause generally prohibits the federal and state governments from enacting laws that discriminate against or excessively interfere with a person’s exercise of religious beliefs.

Question 2

Religious Discrimination

Answer 2

The Free Excercise Clause requires the government to remain neutral as to religion. Thus, laws that intentionally disciminate agianst, penalize, or interfere with religious beliefs or practices are subject to strict scrutiny:

The law is presumed to be invalid, and the government must prove that the law is necessary and narrowly tailored to achieve a compelling government interest.

Question 3

Generally Applicable Laws

Answer 3

Other laws place only incidental burdens on religion. If a generally applicable law places only an incidental burden on religion, it is evaluated under minimal scrutiny/rational basis:

The law is presumed to be valid, and the challenger must show that it is not rationally related to any legitimate government interest. A person is not entitled to an exemption from a generally applicable law on religious grounds, although the government may often provide an exemption if it chooses. (Smith Test).

Question 4

Religious Freedom Restoration Act (RFRA)

Answer 4

The rule of minimal scrutiny for generally applicable laws is the constitutional standard for Free-Exercise claims. However, Congress has imposed a higher statutory standard for federal laws that incidentally burden religion:

Under the RFRA, to justify any law substantially burdening the free exercise of religion, the federal government must advance a compelling interest and show that the law is the least restrictive means for achieving its interest. In other words, strict scrutiny.

Question 5

The Establishment Clause

Answer 5

The Establishment Clause provides that the government “shall make no law respecting an establishment of religion…” This clause prohibits the federal and state governments from establishing an official religion, from expressing a preference for a particular religion, and from otherwise violating the separation of church and state.

Question 6

The Lemon Test

Answer 6

For a law to pass the Lemon Test, three prongs must be satisfied:

1. The law must have a secular purpose,
2. The law’s primary effect cannot be to advance or inhibit religion, and
3. The law must not foster an excessive government entanglement with religion.

The government violates the establishment clause if any of these prongs are violated.

Question 7

Aid to Parochial (private) schools

Answer 7

Modified the Lemon test for these type of cases:

1. The law must have a secular purpose
2. The law’s primary effect cannot be to advance or inhibit religion

Criteria used to evaluate whether the government aid has the effect of advancing a religion in violation of the establishment clause:

i. If the aid results in government indoctrination
ii. If the aid defines its recipients by reference to religion.
iii. If the aid creates an excessive entanglement.