Freedom of Religion

Question 1

Freedom of Religion

Answer 1

the First Amendment (1791) holds that Congress (and the state and local governments shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . . .to determine if there is a violation of the freedom of religion courts will consider (1) is religious freedom implicated; (2) what rules regulate the infringment of religion; and (3) has the government met the designated level of scrutiny.

Question 2

Exam purposes: The first amanemdnt has two distinct clauses that protect religious freedom: (the free exercise clause and the establishment clause.

Answer 2

The free exercise clause consists of two components and protects individuals to practice religious beliefs and conduct which is absolute and freedom to act, is not absolute. In contrast, the establishment clause focuses on protecting against the government unduly supporting or endosrsing a particular religion, however in times past the court followed a more separation doctrine, evolving to neutral and treating religion like any other social group, and then to almost a complete shift to recognizing the importance of religion and accommodating it as much a possibles, thereby not giving much legal weight to the Lemon test, then I could do the rule of 3.

Question 3

What do you look at first under 1st rule of three element; is freedom of religion implicated.

Answer 3

First, it will need to be determined whether religion is involved. The court has not provided a formal definition on religion. Courts are allowed to determine whether a person holds sincerely held beliefs but may not determine the veracity of those beliefs. Also, protection is still allowed even if a persons beliefs are not the dominant or dogma of their religion. Is this an issue? if it is not then stop there, if it is then need to analysis.

Question 4

THIS IS still under the threshold issues

Answer 4

under FE is government prohibits conduct that religion requires and when government requires conduct that religion prohibits and if government requires or burdens conduct that burdens or makes more difficult for religious observances.

Question 5

what rules govern

Answer 5

the FE clause prohibits the government from explicitly discriminating against having religious beliefs or engaging in religious conduct. If the government explicitly discriminates among religious groups or conveys animus, SS is required. this MUST BE A SUBSTANTIAL BURDN ON RELIGION.

If the government does not explicitly discriminate (valid and neutral law of general applicability): with respect to state and local governments, a FE challenge will not overide a valid neutral law of general applicability. Hence Rational basis would apply.

Since Employment Division v. Smith the court has begun to engage in a more fact-intensive analysis of FE claims and several areas of law have developed with respect to the state and local governments. In addition courts have recognized that some hybrid claims require SS. this is unemployment exception)

With respect to the federal government the Religious Freedom Act requires application of SS to assess a FE challenge to a valid and neutral law of general applicability.

VALID AND NEUTRAL LAWS OF GEENERAL APPLICABILITY
Elements: Neutral law: Gov fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of religious nature.

GENERAL APPLICABILITY
a law is not generally applicable if it invites the government to consider the particular reasons for a persons conduct by providing a mechanism for individualized exemptions.

Also lacks if it prohibits religious conduct, while permitting secular conduct that undermines the governments asserted interest in a similar way.

A neutral law of general applicability is subject to RB. A law not neutral is SS.

Question 6

Under RB

Answer 6

there must be a legitimate (permissable) government interest and the law is rationally related to achieving that interest.

Question 7

Why is
protecting
religion
important?

Answer 7

Promotes
community
Encourages moral
and ethical behavior
Advances autonomy
and personhood
Essential part of our
history and tradition

Question 8

Freedom of
religion
framework

and violating their freedom of religion clause.

Answer 8

1. Is religious freedom
   implicated?
2. If so, what rules
   regulate the infringement
   of religious freedom?
3. Does the government
   action meet the
   designated level of
   scrutiny?

Answer 9

Introduction
* United States v. Seeger
* United States v. Ballard
Free Exercise Clause
* Sherbert v. Verner
* Employment Division, Department of Human
Resources of Oregon v. Smith
* Masterpiece Cake Shop Ltd. v. Colorado Civil
Rights Commission
* Kennedy v. Bremerton School District
Establishment Clause
* Lemon v. Kurtzman
* County of Allegheny v. American Civil Liberties
Union
* McCreary County v. ACLU of Kentucky
* Van Orden v. Perry
* American Legion v. American Humanist
Society

Question 10

Rules

Answer 10

1. The Court has avoided providing a
   formal definition of religion.
2. The Court has indicated the
   judiciary may determine whether
   someone has sincerely held religious
   views.
3. The Court has indicated the
   judiciary may not determine the
   veracity of religious views.
4. The Court has indicated that an
   individual’s sincerely held religious
   beliefs are protected even if they are
   not the dogma or the dominant view
   within the religion.

Question 11

Free Exercise Clause

Answer 11

• The Free Exercise Clause embraces two
  concepts: freedom to believe and freedom
  to act.
  1. The freedom to believe is absolute
  2. The freedom to act is not absolute.
• Government action may implicate the Free
  Exercise Clause in three situations:
  1. When the government prohibits
  conduct that a person’s religion requires.
  2. When the government requires
  conduct that a person’s religion
  prohibits.
  3. When the government prohibits or
  requires conduct that burdens or makes
  more difficult religious observations.

Question 12

Timeline of Free Exercise Jurisprudence

Answer 12

• 1963: In Sherbert v. Verner, the Supreme Court held that strict scrutiny is the
  appropriate test in evaluating government laws that burden the free exercise of
  religion.
• 1990: In Employment Division, Dep’t of Human Resources of Oregon v. Smith, the
  Supreme Court held that a valid and neutral law of general applicability is not
  subject to strict scrutiny review.
• 1993: In the Religious Freedom Restoration Act (RFRA), Congress indicated that
  free exercise claims are subject to strict scrutiny review.
• Government shall not substantially burden a person’s exercise of religion unless it
  demonstrates that the application of the burden is necessary to achieve a compelling
  government interest and it is the least restrictive means of furthering that interest.
• 1997: In City of Boerne v. Flores, the Supreme Court held that RFRA is
  unconstitutional as applied to state and local governments. (However, RFRA
  remains applicable to the federal government.)

Question 13

Free Exercise Framework

Answer 13

If the government explicitly discriminates among
religious groups, strict scrutiny is required.
* Note: there must be a substantial burden on religion
* If the government does not explicitly discriminate
(valid and neutral law of general applicability):
* With respect to state and local governments, a Free
Exercise challenge will not override a valid and
neutral law of general applicability.
* Thus, you would apply rational basis review.
* Since Employment Division v. Smith, the Court has
begun to engage in a more fact-intensive analysis of
Free Exercise claims and several areas of law have
developed with respect to state and local
governments.
* In addition, the Court has recognized that some
hybrid claims require strict scrutiny.
* With respect to the federal government, the
Religious Freedom Restoration Act requires the
application of strict scrutiny to assess a Free Exercise
challenge to a valid and neutral law of general
applicability.

Question 14

Valid and Neutral Law of General Applicability

Answer 14

Elements
* Neutral Law
* Government fails to act neutrally when it proceeds in a manner
intolerant of religious beliefs or restricts practices because of their
religious nature.
* General Applicability
* A law is not generally applicable if it “invite[s] the government to
consider the particular reasons for a person’s conduct by providing
‘a mechanism for individualized exemptions.’”
* A law also lacks general applicability if it prohibits religious conduct
while permitting secular conduct that undermines the
government’s asserted interests in a similar way.
Consequences
* A neutral law of general applicability is subject to rational basis review.
* A law that is not neutral or of general applicability is subject to strict
scrutiny review.

Question 15

What tests are applied for regulating conduct of religious activity?

Answer 15

Strict scrutiny will apply for government action implicating the establishment clause if the government is explitcidly discriminating against religious groups. However if the law is not discriminating then the court will use the Lemon test.

Question 16

Lemon test?

Answer 16

the law must have a (1) secular purpose; (2) its principal or primary effect must be one that neither advances not inhibits religion and (3) the law must foster excessive government entanglement with religion.

Question 17

the court has began applying a different approach although the Lemon test is still good law

Answer 17

(1) history of practices and understandings; (2) whether the government compels religious exercise; (3) fact-intensive and case specific test in discreet area of law.

Question 18

Privileges or immunities clause

Answer 18

the P & I clause of the 14th A that protects citizens from government action has been narrowly tailored applied by the court. This clause has only been used in the Slaughterhouse cases (where court held does not protect citizens from state action) and Saenz v. Rose where the court struck down a ca law vioalting a persons right to travel.

Question 19

Under P or I clause there are three types of right to travel that are protected?

Answer 19

(1) right to move freely from state to state; (2) right to stop in a state and be treated like a welcomed visitor and not an enemy, and (3) right to permanently move to another state.

If a right to travel is at issue, the court will analyze this under strict scrutiny as well.

Question 20

Exam: Freedom of Religion Establishment Clause

Answer 20

The First Amendment holds that Congress (and the state and local governments) shall make no
law respecting the establishment of religion or prohibiting the free exercise thereof. To determine
whether there is a violation of the freedom of religion, courts will consider: (1) is there a
substantial burden on the freedom of religion; (2) if so, what rules regulate the infringement on
freedom of religion; and (3) does the government action meet the designated level of scrutiny.

Question 21

Is there a Substantial Burden on the Freedom of Religion

Answer 21

First, it will need to be determined whether religion is involved. The Court has not provided a
formal definition on religion. Courts are allowed to determine whether a person holds sincerely held religious beliefs, but the court may not determine the veracity of those beliefs. Also,
protection is still allowed even if a person’s beliefs are not the dominant or dogma of their
religion. Here, Legend’s own religion is not at issue so the court does not need to determine
whether she has sincerely held beliefs.

Next, it will need to be determined whether the free exercise or establishment clause is at issue.
The free exercise or establishment clauses are encompassed in the first amendment. The free
exercise clause consists of two components– freedom to believe (absolute) and freedom to act
(not absolute). Free exercise is implicated if the government prohibits conduct that a person’s
religion requires, if the government requires conduct that a person’s religion prohibits, or if the
government prohibits or requires conduct that burdens or makes more difficult religious
observation. Because Legend’s own religion is not at issue, the free exercise clause is not at issue
here.

The establishment clause is implicated when the government seeks to establish a national religion or when the government unduly supports a particular religion.

Here, Legend takes issue with the appearance of the Latin cross on the seal that appears on public owned billboards. This implicates the establishment clause as it may appear that the government is supporting the Christian religion by the existence of the cross on the seal on the public-owned billboards. This can be seen as a substantial burden on the freedom of religion.

Question 22

2. What Rules Regulate the Infringement on the Freedom of Religion

Answer 22

Because the establishment clause is at issue, there are two potential rules that regulate. First, if the government is found to explicitly discriminate or favor a particular religion,
strict scrutiny is required. If there is no explicit discrimination, then courts have historically turned to the Lemon test. To determine whether a government’s actions are constitutional, the law must meet the Lemon test, which holds: (1) the law must have a secular purpose; (2) the primary or principal purpose must neither be to advance or inhibit religion; and (3) the law must not foster excessive government entanglement with religion.

Today, the Lemon test has essentially been overruled (although not explicitly stated so by the court) in favor of an approach that is more accommodating toward religion. Under this new approach, courts consider (1) the history of practices and understandings; (2) whether the government compels religious exercise; and (3) fact intensive and case-specific test in discrete areas of the law.

Here, it is likely the courts will consider the presence of the Latin cross on the seal to not explicitly discriminate, thus, the above approach in favor of religious accommodation will likely apply.