FREEDOM OF RELIGION

Question 1

CONSTITUTIONAL PROVISION

Answer 1

The First Amendment provides “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Question 2

APPLICABILITY TO THE STATES

Answer 2

Both the Establishment and Free Exercise Clauses of the First Amendment apply to the states under the Fourteenth Amendment.

Question 3

FREE EXERCISE CLAUSE
1.
No Punishment of Beliefs

Answer 3

The Free Exercise Clause prohibits the government from punishing (denying benefits to, or imposing burdens on) someone on the basis of the person’s religious beliefs. It is sometimes said that the government can engage in such activity only if it is necessary to achieve a compelling interest; sometimes the rule is stated as a total prohibition of such government actions. In any case, the Supreme Court has never found an interest that was so “compelling” that it would justify punishing a religious belief.

Question 4

What Constitutes Religious Belief?
.

Answer 4

The Supreme Court has not defined what constitutes a religious belief. However, it has made clear that religious belief does not require recognition of a supreme being [Torcaso v. Watkins, 367 U.S. 488 (1961)], and need not arise from a traditional, or even an organized, religion [see Frazee v. Illinois Department of Employment Security, 489 U.S. 829 (1989)]. One possible definition is that the “belief must occupy a place in the believer’s life parallel to that occupied by orthodox religious beliefs.” [United States v. Seeger, 380 U.S. 163 (1965)—interpreting statutory, rather than constitutional, provision] In any case, the Court has never held an asserted religious belief to be not religious for First Amendment purposes

Question 5

Courts May Not Find Religious Beliefs to Be False

Answer 5

The courts may not declare a religious belief to be “false.” For example, if a person says he talked to God and that God said the person should solicit money, the person cannot be found guilty of fraud merely because the trier of fact doesn’t believe in God or doesn’t believe that God actually communicated with the defendant. However, the court may consider whether the person’s belief is sincere (in other words, whether he honestly and in good faith believed that God told him to solicit money).

Question 6

States Must Act with Religious Neutrality

Answer 6

The Free Exercise Clause requires states to act with neutrality toward religious beliefs. Thus, even if a state law is neutral toward religion on its face (such as a law requiring businesses not to discriminate on the basis of sexual orientation), evidence that a state’s action with respect to the law was based on a negative view of a person’s religious beliefs can result in a violation of the Free Exercise Clause.

Question 7

Religious Oaths for Governmental Jobs Prohibited

Answer 7

The federal government may not require any federal office holder or employee to take an oath based on a religious belief as a condition for receiving the federal office or job, because such a requirement is prohibited by Article VI of the Constitution. State and local governments are prohibited from requiring such oaths by the Free Exercise Clause

Question 8

States May Not Exclude Clerics from Public Office

Answer 8

A state may not exclude clerics (persons who hold an office or official position in a religious organization) from being elected to the state legislature, or from other governmental positions, because that exclusion would impose a disability on these persons based upon the nature of their religious views and their religious status.

Question 9

No Punishment of Religious Conduct Solely Because It Is Religious

Answer 9

The Supreme Court has stated that the Free Exercise Clause prohibits the government from punishing conduct merely because it is religious or displays religious belief (e.g., the state cannot ban the use of peyote only when used in religious ceremonies). [Employment Division v. Smith, supra—dicta] A law that is designed to suppress actions only because the actions are religiously motivated is not a neutral law of general applicability. If a government policy burdens a sincere religious practice and is not neutral or generally applicable, the government must satisfy strict scrutiny. It must demonstrate its actions were justified by a compelling interest and narrowly tailored to that interest. [

Question 10

No Exclusion from Government Benefits Programs Solely Because an Organization Is Religious

Answer 10

A state may not limit eligibility for a governmental benefit to nonreligious organizations. Even if a state has no obligation to create a benefit, once it has done so, it may not ban religious groups similarly situated to eligible secular parties from receiving the benefit merely because they are religious

Question 11

Laws with System for Exceptions Not

Answer 11

Generally Applicable
A law is not of general applicability, and therefore must meet strict scrutiny, if it gives government officials discretion to grant exceptions from the law (even if they never use it).

Question 12

States Can Regulate General Conduct—Criminal Laws and Other Regulations

Answer 12

The government is free to adopt religiously neutral, generally applicable laws
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regulating conduct, and this is true even if the prohibition or regulation happens to interfere with a person’s religious practices. The Free Exercise Clause cannot be used to challenge a law of general applicability unless it can be shown that the law was motivated by a desire to interfere with religion

Question 13

Generally No Exemptions Required

Answer 13

The Free Exercise Clause does not require exemptions from criminal laws or other governmental regulations for a person whose religious beliefs prevent him from conforming his behavior to the requirements of the law. In other words, a law that regulates the conduct of all persons can be applied to prohibit the conduct of a person despite the fact that his religious beliefs prevent him from complying with the law.

Question 14

Federal Statutory Exemption—Outside the Scope of Exam

Answer 14

The Religious Freedom Restoration Act (“RFRA”) allows a person to challenge federal laws of general applicability as burdening his religious beliefs and practices. If there is a substantial burdening of religious free exercise, under RFRA the government must meet strict scrutiny. In Burwell v. Hobby Lobby, Inc., 573 U.S. 682 (2014), the Court found that a federal requirement that businesses include contraceptive coverage in their insurance coverage for employees violates RFRA for close corporations whose owners object to this on religious grounds. However, RFRA is statutory in nature and is outside the scope of a constitutional law question

Question 15

Examples

Answer 15

The Supreme Court has held that no religious exemption was required from the following religiously neutral regulations, even though certain groups objected because the regulation interfered with conduct inspired by sincerely held religious beliefs:
1)
Prohibition against use of peyote [Employment Division v. Smith, supra—challenged by person whose religious beliefs require use of peyote during religious ceremony];
2)
Denial of tax exempt status to schools that discriminate on the basis of race [Bob Jones University v. United States, 461 U.S. 574 (1983)—challenged by religious school whose tenets require certain separations of races];
3)
Requirement that employers comply with federal minimum wage laws [Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985)—challenged by employer that argued minimum wages interfere with members’ religious desires to work without compensation];
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4)
Requirement that employers pay Social Security taxes [United States v. Lee, 455 U.S. 252 (1982)—challenged by person whose religious beliefs prohibited payment and receipt of Social Security type payments]; and
5)
Sales and use taxes [Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378 (1990)—challenged as applied to sales of goods and literature by religious group].

Question 16

Cases in Which Exemptions Were Required

Answer 16

1)
Ministerial Exemption
The Supreme Court has held that religious organizations must be granted an exemption from suits alleging employment discrimination by ministers against their religious organizations. The government may not interfere with a decision of a religious group to fire one of its ministers. Imposing an unwanted minister would infringe on the Free Exercise Clause, which protects a religious group’s right to shape its own faith through appointments. And allowing the government to determine who will minister within a faith also violates the Establishment Clause by interfering with ecclesiastical decisions. Moreover, this ministerial exemption is not limited to the head of a religious congregation; it can extend to others in positions considered by the congregation to be ministerial. [Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020)—ministerial exemption applied to parochial school teachers despite not having the title of “minister,” given that they performed “vital religious duties,” including praying with students and educating them in their faith]

Question 17

Unemployment Compensation Cases—Some Exemptions Required

Answer 17

Many state unemployment compensation programs make payments only to persons who are involuntarily unemployed (i.e., were fired or laid off rather than resigned), and who are available for work (i.e., willing to accept offered employment). Here, however, unlike other areas of regulation, the Supreme Court has held that the states must grant religious exemptions. Thus, if a person resigns from a job or refuses to accept a job because it conflicts with her religious beliefs, the state must pay her unemployment compensation if she is otherwise entitled.

Question 18

Need Not Belong to Formal Religious Organization

Answer 18

A person does not have to be a member of a formal religious organization to receive the above exemptions from unemployment compensation requirements. All that is required is that the person sincerely hold religious beliefs that prevent him from working on a certain day or on military products.

Question 19

Limitation—Criminal Prohibitions

Answer 19

The unemployment compensation cases do not give individuals a right to disregard criminal laws due to their religious beliefs. Thus, unemployment compensation laws may disqualify persons fired for “misconduct” (which includes any violation of criminal law

Question 20

Right of Amish Not to Educate Children

Answer 20

The Supreme Court has required an exemption for the Amish from a neutral law that required school attendance until age 16, because a fundamental tenet of Amish religion forbids secondary education. The Court found that the Amish are productive and law-abiding, and ruled that the right to educate one’s children (see XIX.B.6.a., supra) and the Free Exercise Clause outweighed the state’s interest here

Question 21

Right of Amish Not to Educate Children

Answer 21

The Supreme Court has required an exemption for the Amish from a neutral law that required school attendance until age 16, because a fundamental tenet of Amish religion forbids secondary education. The Court found that the Amish are productive and law-abiding, and ruled that the right to educate one’s children (see XIX.B.6.a., supra) and the Free Exercise Clause outweighed the state’s interest here

Question 22

ESTABLISHMENT CLAUSE

Answer 22

Like the Free Exercise Clause, the Establishment Clause compels the government to pursue a course of neutrality toward religion. At the least, it prohibits government sponsorship of religion, meaning that the government cannot aid or formally establish a religion. In determining whether a particular action will be seen as sponsorship of religion, the Supreme Court has indicated it will consider historical practices and the understandings of the founding fathers. [Kennedy v. Bremerton School District, supra] Broadly speaking, the Establishment Clause cases can be grouped into four categories: (1) cases preferring one religious sect over others; (2) a limited group of cases unconnected to financial aid or education; (3) cases involving financial aid to religiously
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affiliated institutions; and (4) cases concerning religious activities in public schools. The details regarding the Supreme Court rulings are given below.

Question 23

Sect Preference

Answer 23

Government action that prefers one religious sect over others violates the Establishment Clause, at least if such action is not necessary to achieve a compelling interest.

Question 24

Cases Unconnected to Financial Aid or Education

Answer 24

In cases unconnected to financial aid or education, a good rule of thumb is that government action favoring or burdening religion or a specific religious group in particular will be invalid, but a law favoring or burdening a larger segment of society that happens to include religious groups will be upheld. Of course, history will also come into play—long accepted government practices that touch on religion will usually not be found to violate the Establishment Clause

Question 25

State Legislature Can Employ a Chaplain

Answer 25

Despite the principle of separation of church and state, the Court has held that a state legislature could employ a chaplain and begin each legislative day with a
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prayer. [Marsh v. Chambers, 463 U.S. 783 (1983)] This decision was based on the history of legislative prayer in America.

Question 26

Town Board Can Begin Town Meetings with a Prayer

Answer 26

Extending Marsh v. Chambers, supra, the Court has held that a town board may begin its meetings with prayers led by clergy members listed in the town’s congregation directory, even if the clergy is predominately Christian. The Court found the practice is consistent with the tradition of legislative prayer and does not discriminate against minority faiths nor coerce the participation of nonadherents, and therefore does not violate the Establishment Clause. The Constitution requires only that the town is equitable in drawing from available clergy, not that it ensure equal representation of all faiths

Question 27

Displays of Religious Symbols on Public Property

Answer 27

Longstanding monuments are presumed constitutional because they likely have historical significance and their original purpose may be unclear. [American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019)—holding that a World War I memorial consisting of a 40-foot-tall cross did not violate the Establishment Clause]

Question 28

Cases Involving Financial Benefits to Church-Related Institutions

Answer 28

A statute authorizing governmental aid to a religiously affiliated institution (hospital, school, etc.) must also pursue a course of neutrality toward religion.
a.
Recipient-Based Aid
The government may give aid in the form of financial assistance to a defined class of persons as long as the class is defined without reference to religion or religious criteria. A neutral benefit program is valid even if, as a result of the independent choices of private benefit recipients, it allows public funds to be directed to a religious organization (such as a religious private school).

Question 29

Compare—Tuition Tax Deductions or Credits Limited to Religious School Tuition

Answer 29

A state may not use a system of statutory grants, tax credits, or tax deductions to reimburse parents or students for tuition paid only to religiously affiliated schools. However, a tax deduction to all students or parents based on the actual expenditures for attending any public or private school (including religious schools) has been upheld. [Mueller v. Allen, 463 U.S. 388 (1983)] It would appear that a valid tax deduction statute must allow a deduction for: (1) expenditures for public as well as private schools; and (2) some expenditures other than tuition (such as expenditures for school supplies or books) so that public school students or their parents may benefit from the deduction.

Question 30

Aid to Colleges, Hospitals, and the Like

Answer 30

The Court will uphold a government grant of aid to the secular activity of a religiously affiliated hospital or college (such as a grant to build a new hospital ward or a laboratory-classroom building).

Question 31

Aid to Religiously Affiliated Grade Schools or High Schools

Answer 31

Programs of aid to religiously affiliated grade schools or high schools are subject to the same test as are all other laws under the Establishment Clause. Most of the time, programs that include both religious and secular private schools will be valid

Question 32

Aid Upheld

Answer 32

The Supreme Court has upheld state programs that:
a)
Provide state-approved textbooks to all students [Board of Education v. Allen, 392 U.S. 236 (1968)] (but note that the state may not loan textbooks to students attending schools that discriminate on the basis of race, since this would violate the Fourteenth Amendment [Norwood v. Harrison, 413 U.S. 455 (1973)]);
b)
Lend religiously neutral instructional materials (e.g., library books, computers) to parochial schools as well as to public and other nonprofit private schools, where the program did not define recipients by reference to religion. [Mitchell v. Helms, 530 U.S. 793 (2000)—overruling Meek v. Pittenger, 421 U.S. 349 (1975)];
c)
Provide transportation to and from school to all students [Everson v. Board of Education, 330 U.S. 1 (1947)];
d)
Reimburse private schools for the expenses of compiling state-required data, such as student attendance records, or administering and grading standardized state educational achievement tests [Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646 (1980)]; and
e)
Provide “auxiliary services” (e.g., remedial education, guidance, or job counseling) to all disadvantaged children at their school, including children at parochial schools

Question 33

State Must Not Discriminate

Answer 33

If a state subsidizes private education, it cannot deny the same funding to religious schools. Such across-the-board funding, treating religious private schools the same as non-religious private schools, does not violate the Establishment Clause and is required by the Free Exercise Clause under the neutrality principle.

Question 34

Tax Exemption for Religious, Charitable, or Educational Property

Answer 34

An exemption from property taxation for “real or personal property used exclusively for religious, educational, or charitable purposes” does not violate the Establishment Clause. In granting the exemption, the “government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state

Question 35

Tax Exemption Available Only to Religions

Answer 35

Although religious schools or religious associations may be included in tax exemptions available to a variety of secular and religious organizations, a tax exemption that is available only for religious organizations or religious activities violates the Establishment Clause. [Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)—an exemption from the sales and use tax for religious magazines or books (but no other publications) violates the Establishment Clause]

Question 36

Religious Activities in Public Schools
a.
Prayer and Bible Reading During School or School Events

Answer 36

Prayer and Bible reading in school are invalid as establishments of religion. [Engel v. Vitale, 370 U.S. 421 (1962); Abington School District v. Schempp, 374 U.S. 203 (1963)] It does not matter whether participation is voluntary or involuntary, and neither does it matter that the prayer period is designated as a period of silent prayer or meditation. [Wallace v. Jaffree, 472 U.S. 38 (1985)] This rule extends to prohibit public school officials from having clerics give invocation and benediction prayers at graduation ceremonies. [

Question 37

Posting Ten Commandments in Classroom Is Invalid

Answer 37

Posting the Ten Commandments on the walls of public school classrooms plainly serves a religious purpose and is invalid, despite the legislature’s statement that it was for a secular purpose

Question 38

Released-Time Programs

Answer 38

1)
In Public School Building
Programs in which regular classes end an hour early one day a week and religious instruction is given in public school classrooms to students who request it are invalid. [McCollum v. Board of Education, 333 U.S. 203 (1948)]
2)
Nonpublic Building Used
Programs in which participating children go to religious classes conducted at religious centers away from the public school do not violate the Establishment Clause.

Question 39

Accommodation of Religious Students—On-Campus Meetings

Answer 39

As discussed at XX.B.1.d., supra, under the Free Speech Clause, if a public school allows members of the public and private organizations to use school property when classes are not in session, it cannot deny a religious organization permission to use the property for meetings merely because religious topics will be discussed. Such an “equal access rule” does not violate the Establishment Clause.

Question 40

Curriculum Controls

Answer 40

A government statute or regulation that modifies a public school curriculum will violate the Establishment Clause if it was enacted to promote religion.

Question 41

Postgame Prayer

Answer 41

The Establishment Clause is not violated when a football coach offers a silent prayer on the field following a public high school football game. The Clause is not violated whenever a public school or other government entity fails to censor private religious speech.