The First Am. - Religion/Establishment Clauses Flashcards
The Establishment Clause Generally
Bars laws that tend to support specific religious groups or religious activity in general.
A state or federal law that discriminates against or among specific religious groups is inherently suspect under both the Establishment Clause and equal protection and will be upheld only if it’s narrowly tailored to achieve a compelling governmental interest, that is, if it survives strict scrutiny.
The Free Exercise Clause Generally
Limits the government’s ability to interfere with how private individuals exercise their religious beliefs.
The Establishment Clause Lemon Test
Unlike nearly all the other Rights, Establishment is treated as a binary constitutional choice: establishment/no establishment - Government can not justify an establishment by presenting that the establishment furthers a compelling interest and that the level of establishment is no more than necessary to accomplish that compelling interest. There are no levels of scrutiny that apply when government engages in an establishment! (Bowser)
When a nondiscriminatory state or federal law is challenged on Establishment Clause grounds, courts apply the so-called Lemon test, named after the Supreme Court’s decision in Lemon versus Kurtzman. The Court continues to follow its three prongs, all of which must be satisfied for a law to withstand an Establishment Clause challenge.
(1) First, the law must have a secular legislative purpose. Thus, legislative action that is designed and intended to advance religion violates the Establishment Clause even if it’s nondiscriminatory.
(Ex: The Court has invalidated a county law requiring that all public buildings display the Ten Commandments, but it has upheld a state law requiring businesses to close on Sunday. The former law reflected a clear religious purpose, whereas the latter law, although derived from religious origins, served the secular purpose of providing all citizens with a day of rest.)
(2) Second, the law’s principal or primary effect must neither advance nor inhibit religion. More recently, courts have expressed this requirement in terms of symbolic endorsement. Government action that symbolically endorses religion or a specific religious group will fail this prong of the Lemon test. (Ex: A state law that prevents employers from requiring their employees to work on whatever day an employee’s religion treats as the Sabbath is unconstitutional because the state has thereby endorsed religion over irreligion.) Importantly, if not intuitively, the Court has distinguished laws creating direct benefits based on religion, which fail this prong of the Lemon test, from those that exempt religious groups from otherwise applicable legal requirements such as anti-discrimination law, which don’t.
(3) Thirdly, the law must not foster excessive government entanglement with religion by requiring the government to repeatedly monitor whether particular individuals or groups are engaging in secular activities versus religious activities.
(Ex: Governments can’t pay the salaries of secular teachers in parochial schools, even for nonreligious subjects, because of the need this distinction would create for government monitoring of religious activity.)
The Free Exercise Clause Test
A valid and neutral law of general applicability will not run afoul of the Free Exercise Clause even if it incidentally burdens a specific religious practice. These are subject to rational basis review.
However, if the law’s objective is to burden religious practices or groups, or if it appears to be more specifically targeted at particular religious practices or groups, then strict scrutiny will apply, and the law will only be upheld if it’s narrowly tailored to achieve a compelling government purpose.
Bowser’s Free Exercise After Smith
(1) If the Government’s law (statute, ordinance, regulation) is “religiously-neutral and generally-applicable,” the rule is constitutional under the Free exercise Clause if it is reasonably related to a legitimate government interest UNLESS:
A. RFRA applies – the rule is federal and it burdens a sincerely-held religious belief. Strict Scrutiny would apply.
B. Religious Land Use and Institutionalized
Persons Act (RLUIPA) applies. In such a case, governments must demonstrate a compelling interest and that the law/rule is narrowly tailored to achieve that interest (Strict Scrutiny).
(2) If the governmental rule is NOT religiously neutral (“when [government] proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature), government must meet strict scrutiny.
(3) If the governmental rule is NOT “generally applicable” (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 [or if the law]. . . prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way. - Fulton v. Philadelphia), government must meet strict scrutiny.
(4) If the governmental rule (even if neutral and generally-applicable) intrudes on the religious body’s decision regarding its “ministers” – it violates the religious body’s rights under the Religion Clauses because it “[interferes] with an internal church decision that affects the faith and mission of the church itself.
Use of Religious Symbols and Religious Language by Government
Three Historical Approaches and One Present Approach:
HISTORICAL APPROACHES:
(1) Use of the Lemon Test
A. The purpose of the government’s use must be secular.
B. The government’s action (use of the symbol/language in this case) must not advance or inhibit religion.
C. The government action (use of the symbol/language) must not cause “excessive entanglement” with religion.
(2) O’Connor’s “endorsement” test:
Would a reasonable observer, who is knowledgeable and aware of the history and context of the community in which the religious practice occurs, conclude that the use of the symbol or language would communicate to “non-adherents that they are outsiders, not full members of the political community.”
(3) Coercion: Does the use of religious language or symbols coerce an individual to affirm/assent to the religious beliefs presented by the language or the symbol?
PRESENT APPROACH:
Focus on the particular issue at hand and look to history for guidance.
(a) The symbol took on a secular meaning - sacrifice.
(b) The symbol has acquired historical importance – reminds the people of the sacrifices made for democracy.
(c) The monument has acquired additional layers of historical meaning.
(d) No evidence that the placement of the symbol was intended to disregard or disrespect those who were not adherents to the religion symbolized by the object.
