Freedom Of Religion Flashcards
How does the Constitution define freedom of religion generally?
The first amendment provides that Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof. Both the Establishment Clause and the Free Exercise Clause have been incorporated into the Due Process Clause of the Fourteenth amendment and are therefore applicable to the states.
What is the standard of review for laws/acts violating the establishment clause?
When a governmental program shows preference to one religion over another, or to religion over no religion , strict scrutiny applies (so the creation of a special school district to benefit members of one religion is invalid.
When does a governmental action that benefits religion permissible?
- It has a secular purpose
- It’s principal or primary effect neither advances nor inhibits religion, AND
3, it does not result in excessive entanglement with religion.
NOTE: though still applied, the Lemon test (above) has often been modified or set aside in the SC’s more recent establishment Clause cases.
How is financial aid to religiously-affiliated institutions treated under the Establishment Clause?
Programs that provide aid to religiously-affiliated institutions, such as hospitals and schools, are tested under the three-part Lemon test, and generally fall into one of three categories:
- Indirect aid to schoolchildren
- Direct aid to colleges and hospitals
- Tax exemptions
How is indirect aid to schoolchildren treated under the establishment clause?
Financial assistance by the government that is widely available to a class of persons (not defined by religion) is likely valid, even if the aid benefits religion in some way. For example, aid to elementary and high-school students, including students at parochial schools, in the form of textbooks, computers, standardized tests, bus transportation and school lunches have all been upheld. Under the lemon test these forms of financial aid all have a secular primary purpose, neither advance nor inhibit religion, and have an extremely low risk of excessive entanglement.
Vouchers are also fine as long as they cab be used at non-religious schools.
How is direct aid to colleges and hospitals generally treated under the establishment clause/lemon test/
Government grants to religiously-affiliated colleges and hospitals are upheld only if the government requires that the aid be used for non-religious purposes.
How are tax exemptions for religious institutions treated under the establishment cause?
Property-tax exemptions for religious institutions have been held valid as being equivalent to other charitable exemptions and neither advancing more inhibiting religion.
BUT: tax exemptions that are available only for religious activities or organizations, however, violate the establishment clause as an endorsement of religion. Also, tax deductions to reimburse tuition expenses at only religious schools is invalid (valid only if benefits all private school tuition payers, not just religious)
What school activities violate the establishment clause?
Generally, religious activities conducted in public schools violate the establishment clause. The following practice have been held invalid for clearly promoting religion:
- Prayer and bible reading
- Designated period of silence for ‘meditation or voluntary prayer’
- Nondenominational prayer led be a cleric at graduation ceremonies
- Posting the 10 commandments on public-school classroom walls
- Prohibiting the teaching of Darwinism or mandating that such teaching by accompanied by creation science.
If a school allows student groups to use facilities when class is not in session, allowing religious groups to also do so is fine; in fact, prohibiting them would violate their first amendment guarantee of free speech. Often the court will focus on the free speech right of the students in establishment clause/school cases.
EX: state university could not refuse to pay for printing of various religious student newspapers on establishment clause grounds when it funded non-religious papers.
How are religious displays treated under the establishment clause?
Ten Commandments: A display on public property is impermissible if the display has a ‘predominantly religious purpose.’ So displaying it in courthouses has been found invalid, but displaying it where it could be found to have a secular moral or historical message can be permissible (like among other displays to show their cultural significance. because of the unique historical message, which is separate from any religious message, installing the 10 commandments in a public park did not violate the establishment clause; highly-context-driven inquiry.
Holiday displays: Gov’t holiday displays will generally be upheld unless a reasonable observer would conclude that the display is an endorsement of religion. Context is key.
Okay: outdoor display of christmas tree, menorah and other seasonal symbols b/c its simply recognizing that christmas and Hanukah are part of the winter season
What is the Free Exercise Clause?
The Free Exercise Clause of the First amendment has been construed to include two freedoms: the freedom to believe and the freedoms to act. The degree of protection that individuals are afforded from governmental interference in religion depends on whether religious belief or conduct is involved.
How are religious beliefs protected under the first amend?
The freedom to believe in any religion or none at all is absolutely protected and cannot be restricted by law. The government may not deny benefits or impose burdens based on religious belief; it cannot require affirmation of a belief; and it may not determine the reasonableness of the belief. IT MAY, however, determine the sincerity of the person asserting that belief.
How is religious conduct generally treated under the first amend?
Religious conduct, unlike belief, is not absolutely protected. Generally, only state laws that intentionally target religious conduct are subject to strict scrutiny. Neutral law of general applicability that have an impact on religious conduct are subject only to the rational basis test.
How are laws that target religious conduct treated?
Strict scrutiny applies when the government purposely targets conduct because it is religious or displays religious beliefs, so a city ordinance banning all ritual sacrifice of animals not for the purpose of food consumption was struck down for targeting the Santeria religion.
A state law that is designed to suppress an activity because it is religiously motivated is valid only if it is necessary to achieve a compelling government interest.
Other laws that have been struck down:
- compulsory school attendance for the Amish
- denial of unemployment b/c someone didn’t take a job that required work on the Sabbath
How are laws of general applicability that have the incidental effect of interfering with one’s ability to engage in religious practices treated?
Neutral state laws of general applicability that have the incidental effect of interfering with one’s ability to engage in religious practices are subject only to the rational basis test.
EX: criminalization of peyote that did not contain an exception for use in Native American rituals upheld, as the ban was not motivated by any desire to burden religious conduct.
EX: A parent’s right to pray over a child who has contracted meningitis rather that seeking medical assistance may be limited by the state child-neglect and manslaughter laws. Parents do not have the right to endanger their children on grounds of freedom of religion.
What is the Religious Freedom Restoration Act?
Under the Religious Freedom Restoration Act, which is applicable only to the federal gov’t, not the states, even neutral laws of general applicability are subject to strict scrutiny if they substantially burden the free exercise of religion.
