Freedom of Religion Flashcards
what are the five areas protected under the free exercise clause? what SOR?
o What is protected? – Employment Division v Smith – strict scrutiny
(1) the government may not compel affirmation of religious belief, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious status, or lend its power to one or the other side in controversies over religious authority or dogma
(2) the government cannot ban religious exercise (acts or abstentions) where there is a religious reason for the act or abstention while not banning the same act or abstention where the reason for the act is non-religious
(3) nor may government ban the act or abstention only because of the religious belief that is displayed thereby
(4) where a state has in place a system of individual exemptions, it may not refuse to extend that system to cases of “religious hardship” without compelling reason (Sherbert)
(5) hybrid claims where other fundamental rights are also in play (Yoder)
what is expressly not protected by the free exercise clause? what do we need to look out for
o What is not protected? – Employment Division v Smith – rational basis
**the Constitution does not require accommodations for religiously motivated acts or omission from neutral criminal or civil laws of general applicability
but if you see hostility toward the religion, go strict scrutiny!
**also, beware of facially neutral laws that are aimed at religious conduct or belief – these will invite strict scrutiny
how does “play in the joints” function? what is a good example
o “play in the joints”: there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause (Locke v Davey)
• Witters application: giving money to students that they may use towards any education they choose – the court sees this as ultimately the decision of a private citizen, and thus not a violation of the Establishment Clause
o **even though this is permissible under the Establishment Clause, it is not required by the Free Exercise Clause – so states could limit scholarships as they please
what is the “traditional establishment” test applied to? what is the conclusion we draw?
(1) Traditional Establishment (school prayer cases – Engel v Vitale)
• application: where the govt tries to write prayer/require prayer to be recited
conclusion: unlawful
what is the “neutrality and establishment” test applied to? what is the governing rule in this area
(2) Neutrality & Establishment (Witters; Zelman; Mitchell)
• application: where the govt is giving money to an institution, but the decision-maker is NOT the gov’t
o **distinguish indirect funding (giving money to parents/students is usually fine) from direct funding (giving money right to the school is usually suspect and can lead to entanglement) – however, direct aid is not presumptively unconstitutional (Agostini)
• governing rule: the 1st Am requires the state to be neutral in its relationships with groups of religious believers and non-believers – it does not require the state to be their adversary – state power is no more to be used so as to handicap religions than it is to favor them (heavily based in neutrality, even if it requires some entanglement) (Everson)
what is the original lemon test? where was it applied?
o Lemon application: govt provides salary supplements for any public school teachers that are not teaching via religion (in Lemon, the statute was deemed impracticable because it was impossible to enforce)
(1) the statute must have a secular legislative purpose;
(2) the statute’s principal/primary effect must be one that neither advances nor inhibits religion; AND
(3) the statute must not foster an excessive govt entanglement with religion
what is strict application lemon and where does it apply?
• Strict Application Lemon
o here, we look with more scrutiny – where you are giving something to a school that could be diverted for a religious purpose – that is unconstitutional
**key thing here is that this was a tax credit offered only for parochial schools, and not for both parochial and public schools
what is the Lynch version of Lemon and where does it apply? what is our rule of thumb here?
o Lynch application: where the state put up a nativity scene in a shopping center in Pawtucket – essentially makes the first prong of Lemon meaningless because you can always have some secular purpose
(1) the statute must have a secular legislative purpose;
• **the Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded there was no question that the statute or activity was motivated wholly by religious considerations – i.e. all it needs is some conceivable secular purpose to be validated
(2) its principal or primary effect must be one that neither advances nor inhibits religion, AND
(3) the statute must not foster an excessive government entanglement with religion
o “three reindeer rule”: government entities can display religious symbols as part of holiday celebrations or allow private organizations to do so on government property so long as the religious symbols are surrounded by sufficient secular elements in close proximity (Allegheny County)
what is the o’connor endorsement test? where does it apply?
• O’Connor’s Endorsement Test
o application: is the govt trying to endorse religion? often in the field of religious instruments being used by govt
o this test encompasses the secular purpose and primary effect prongs of Lemon
o (1) does the government intend to convey a message of endorsement or disapproval of religion (not saved from unconstitutionality by the existence of some secular purpose)
stand-in for the Lemon “secular purpose” prong
o (2) does the government practice have the effect of communicating a message of endorsement or disapproval of religion (even if the primary effect is to advance religion can be constitutional if endorsement/disapproval is not the effect of the communication)
stand-in for the Lemon “effects” prong
o (3) the statute must not foster an excessive government entanglement with religion
what are the competing views of the coercion test?
(4) Coercion – 2 Varieties
• application: school prayer at school events (football game; graduation)
• Kennedy’s Approach
o rule: the inclusion of clergy offering prayers at a public school graduation ceremony violates the Establishment Clause because it creates subtle and indirect coercion, forcing students to act in ways which establish a state religion (Lee majority)
• Scalia’s Approach
o rule: the coercion which constitutes establishment is coercion of religious orthodoxy or financial support by force of law and threat of penalty – not peer pressure at a graduation (Lee dissent)
what is justice breyer’s divisiveness analysis? where does it apply?
(5) Justice Breyer’s Divisiveness Analysis (McCreary County; Perry)
• application: focused on the 10 Commandments context consider the effects of taking down the religious speech as opposed to leaving it alone – do whatever causes less division
what is justice brennan’s de minimis analysis? where does it apply?
(6) Brennan’s De Minimis Analysis
• application: “in god we trust” on currency; or “one nation under god” in the pledge – not a big deal, ties into ceremonial deism
what are the four elements of o’connor’s ceremonial deism analysis?
• Elements o (1) History and Ubiquity, o (2) Absence of Worship or Prayer, o (3) Absence of Reference to Particular Religion, AND o (4) Minimal Religious Content
how does the “historical precedent” approach work and where is it applied?
(8) Historical Precedent (Marsh; Galloway)
• application: where there is a clear historical principal that governs, we must apply that standard (generally in the case of prayers at legislative meetings)
o **coercion remains a fact-sensitive inquiry that considers both the setting in which the prayer arises and the audience to whom it is directed
what is the strict creationism analysis and where does it apply?
(9) Strict Creationism Analysis (Epperson & Edwards)
• application: you can’t prohibit the teaching of evolution and you can’t tag on “creation science”
