Freedom of religion

Question 1

How do we know that this was an important issue for the FF?

Answer 1

The constitution deals with religion in the very 1st amendment

Question 2

What does the first clause of the first amendment state?

Answer 2

The 1st amendment states ‘Congress shall make no law respecting an establishment of religion (1) or the free exercise thereof (2)’. This is the 1st clause in the 1st amendment of the BoR, so this was an important idea for the FF

Question 3

What two parts can this provision be separated out into?

Answer 3

The first part of this provision is called the establishment clause, the second is called the free exercise clause

Question 4

What does the establishment clause mean?

Answer 4

The establishment clause means that no official state church can be created. This clause ensures that the US does not have any state endorsed religion and that it does not write its laws based on any religious edicts

Question 5

What does the free exercise clause mean?

Answer 5

The free exercise clause means that you can’t be prohibited from being part of any religion, although it doesn’t mean that any religious practise is okay. If religious practise violates the law it is still illegal

Question 6

Why is it important to draw a distinction between religious belief and practise?

Answer 6

A distinction should be drawn between religious belief and religious practise, you can believe whatever you want to believe, including the belief that certain illegal things are actually necessary for their religion. However, you cannot practise whatever you want to practises, as some religious practises can be in defiance of the law

There have been a number of cases that have established the difference between religious belief and religious practise

Question 7

What has happened to these two clauses over the years?

Answer 7

What these two clauses mean have inevitably been clarified by SC decisions

Question 8

Give an example of one of these cases

Answer 8

Lemon v Kurtzman (1971).

Question 9

Why is this case complicated?

Answer 9

This decision is complicated because it combines two sets of facts, although they both involve public money and parochial schools – private schools supported by a particular church or parish…

Question 10

What were the two cases the SC faced here?

Answer 10

In one case in Rhode Island, the state was using taxpayer money to pay teachers in parochial schools in an effort to educate Rhode Island children

In the other case in Pennsylvania that state was using public funds to pay teachers in private schools to to provide secular education services

Question 11

What did the SC set up in response to these cases?

Answer 11

In this case, the SC set up a three-prong test to see if state law violates the religious freedom clauses of the 1st amendment.

Question 12

Describe the first prong

Answer 12

Under the first prong, the court looks at whether the law in question has a secular legislative purpose. In this case, the purpose of the law was educating children, which is one of the powers reserved to the states, and that usually has secular motivations

Question 13

Describe the second prong

Answer 13

Under the second prong, the court examines whether or not the laws primary effect neither enhances nor prohibits religion. Here, the court found that paying private school teachers or using private school facilities did not necessarily promote religion or prevent students from practising if they want to

Question 14

Describe the third prong and how it got the two schools into trouble

Answer 14

The third prong requires that the law under consideration does not create excessive entaglement between church and state. This is where the Rhode Island and Pennsylvania laws got into trouble. In Rhode Island, the schools where the children were learning were full of religious imagery and 2/3 of the teachers were nuns. The court paid close attention to the fact that those involved were kids, said that the idea that there could be religious inculcation is enhanced by the impressionable age of the children, pointing towards the fact that parochial schools involve substantial religious activity and purpose. The problem was different in Pennsylvania, saying that in order to make sure the teachers were not teaching religion, the state would have to monitor them so closely that it would constitute excessive entanglement and give the state way too much control

Question 15

Why was the Pennsylvania ruling controversial here?

Answer 15

The judges engaged in some slippery slope reasoning about the Pennsylvania case, arguing that even if the secular purpose was a good one in this case, there’s a tendency for states to take more and more power for themselves

Question 16

What was the problem with the use of the three prongs in this case?

Answer 16

Another problem is that all three prongs in the case were given equal weight

Question 17

Why can the ruling be seen as impractical?

Answer 17

Another problem with the ruling was that the solid secular purpose of educating children, was not going to happen, or at least would be made more difficult

Question 18

Why is the ruling an example of paternalism?

Answer 18

The ruling can also be seen as paternalistic, arguing that the children were incapable of blocking out the religious imagery. However, since they are kids, it can be argued that this paternalism was justified

Question 19

What earlier case did Lemon v Kurtzman build upon?

Answer 19

Engel v Vitale, which had ruled that prayer in schools violates religious freedom

Question 20

What still occurs despite the Engel v Vitale ruling, and what does the SC do in response to it?

Answer 20

Despite this, every few years a case will come along involving prayer in schools, and the SC applies the same three pronged test that it did in the Lemon case

Question 21

Give an example of one of these cases

Answer 21

For instance, one state adopted a statute mandating a moment of silence at the start of each school day. One of the purposes of this statute was to provide students with an opportunity to pray in school. Another purpose was to create a calming classroom environment to promote learning

Question 22

How did this case match up with the prongs?

Answer 22

The first purpose doesn’t seem so secular, so is in violation of the 1st prong, but it also doesn’t advance or inhibit a particular religion, so is not in violation of the second prong. It is difficult to say whether the statute involves excessive entanglement between church and state, since the term ‘excessive’ will always be a subjective one

Question 23

Why is the third prong particularly contentious?

Answer 23

If you take the Lemon case as a precedent, then almost any religious practise in school could be seen as excessive state interference, because the state is going to have to step and monitor it. Some schools have tried to get around this by having the prayers led by students, since they are not agents of the state. However, you then have the issue of how much student led prayer is actually led by a student, and how you find this out without more monitoring and therefore more state entanglement

Question 24

Why did the SC set up the Lemon test?

Answer 24

The Lemon test was set up by the court as a framework for analysing future situations where state and religion might get mixed up

Question 25

Why is it controversial?

Answer 25

It has a lot of wriggle room and as we have seen it has encouraged a lot of other cases