First Amendment: religion Flashcards
Establishment Clause: Lemon test
The Lemon v. Kurtzman test applicable in Establishment Clause cases evaluates whether:
(1) The law has a secular purpose;
(2) The law has a primary effect that neither advances nor inhibits religion;
(3) The law avoids excessive government entanglement with religion[, another element of the second factor].
Once applied to condemn aid to religious schools, it now allows neutral aid directly to parents, who then make the decision whether to give the money to religious schools.
Establishment Clause: endorsement
Whereas some endorsements are acceptable—e.g., “In God We Trust” on currency—coercive endorsement is prohibited.
For example, the Establishment Clause prohibits:
- Officially sponsored school or graduation prayer;
- Laws prohibiting the teaching of evolution.
But some practices are okay, for example:
- Non-religious and non-inspirational reading of the Bible;
- Non-inspirational or non-endorsing display of the Ten Commandments;
- Legislative prayer, largely for historical purposes;
- Nativity scenes on public property if there is something else there to dilute the religious message, e.g., Rudolph the red-nosed reindeer.
Free Exercise Clause: religious belief
The right to religious belief is absolutely protected—i.e., one is free to hold any belief or none at all.
Free Exercise Clause: religious conduct
Conduct is qualifiedly protected:
- Laws regulating religious conduct because of its religious significance are unconstitutional;
- Neutral, generally applicable laws are constitutional and must be obeyed despite religious objections.
Free Exercise Clause: right to accommodation or exemption
Generally, there is no constitutional right to exemption from neutral, generally applicable regulations of conduct.
Free Exercise Clause: ministerial exception
Standing for a narrow exception to the anti-exemption rule, the ministerial exception prohibits non-discrimination laws from being applied to religious institutions and their ministers.
Free Exercise Clause: campus access
A state university that allows student groups to meet on campus must allow student religious groups equal access.
Free Exercise Clause: religious preference
When a governmental program shows preference to one religion over another, or to religion over nonreligion, strict scrutiny applies.
Establishment clause: governmental holiday displays
Government holiday displays will generally be upheld unless a reasonable observer would conclude that the display is an endorsement of religion.
Tiers of scrutiny
Generally, only laws that intentionally target religious conduct are subject to strict scrutiny.
Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test.
