FREEDOM OF RELIGION Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof General

Introduction I. Establishment Clause governmental action that is viewed as benefitting religion challenged under EC 1. Congress shall make no law respecting an establishment of religion 2. Incorporated: This was incorporated against the states through the due process clause. Thus states cant make laws respecting an establishment of religion. i. Justice Thomas: Thinks this is incorrect because Framers chose to use the language CONGRESS (let the states do what they want) 3. Major Issues: i. Government aid to religious institutions A. Mot of these cases involve government support to religious schools ii. Religion within government institutions A. Most of these cases deal with religion in public schools 4. History i. Varies A. Madison and Jefferson believed that Church and State for both Congress and the States, should be entirely separate. A hands off approach. a. History of European religious persecution; colonial persecution b. Many ratifying states disagreed with this and had state sponsored church at the time of ratification II. Free Exercise claim Government action that burdens or disfavors religion gives rise to FE

Original Meaning I. Generally a. Should religion receive special constitutional protection? i. Conscience of the individual should be free from compulsion ii. Freedom to worship iii. Prevent single Church of the United States reason they came to the US from England to begin with iv. Very difficult to define II. Memorial and Remonstrance Against Religious Assessments (Madison, 1785) a. Religion did not the support of the law b. No person, either believer o non-believer should be taxed to support a religious institution of any kind c. Best interest of a society required that the minds of men be wholly free d. Asserted that religion could NOT be forced on people e. State support actually corrupts religion

f. Government properly limited would promote a civil society in which people of different faiths could maintain their beliefs according to their own consciences g. US was to be an asylum from religious persecution h. CLASS NOTES: i. Establishment is bad because: 1. Bad for churches (religion should be heartfelt) a. Coerced religion is bad for religion b. Government would have to influence/enforce religion c. Government compels churches 2. Bad for society at large a. Religious discord and persecution 3. Bad for government a. Officials following church dogmas b. Anti-democratic III. Danbury Baptist Letter (Jefferson) (1802) & Jeffersonian Wall of Separation a. Jefferson first wrote of a wall between church and state b. Is this a misleading metaphor? Rehnquist seemed to think so in Wallace IV. Virginia Act to Establish Liberty by Thomas Jefferson (1786) a. To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; i. Compel to government speech ii. Should we limit religious opinions V. Everson v. Board of Education a. Came from religious persecution, people were compelled to pa taxes to support government-sponsored churches, etc. b. Virginia (as a colony) rebelled against these sorts of taxes (that funded religion) i. Madison wrote his Memorial and Remonstrance (see above) c. From Jefferson and Madison 1st A had the same objective and was intended to provide the same protection against governmental intrusion on religious liberty as the VA statute d. The establishment of religion means AT LEAST THIS i. Neither federal nor state government may establish an official church ii. The government may not force or influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion iii. Federal/state government may not prefer one religion over another e. In the words of Jefferson, the clause against establishment of religion by laws was intended to erect a wall of separation between church and state

VI. Wallace v. Jaffree a. Held: One minute of silence for voluntary prayer or meditative thought is unconstitutional b. Rehnquist dissent: mistake to rely on Jeffersons metaphor (misleading)

i. Criticized Jefferson as a detached observer ii. Madison also not a zealous advocate of Religion Clauses, just a good legislator and compromiser 1. In fact, Madison saw the 1st A as designed to prohibit the establishment of a national religion and to prevent discrimination among sects 2. Did NOT see 1st A was requiring neutrality on the part of the government between religion and irreligion a. Not concerned with government favoring religions indirectly b. Thus, government IS allowed to provide non-discriminatory aid to religion iii. Idea of a wall is totally bogus intent is just not present in history 1. Just cant PREFER VII. Lee v. Weisman (Justice Souter) a. Held: Inviting a member of the clergy to offer prayer at an official PUBLIC school graduation ceremony violated EC b. Textual development of the clause tells us thats what early actors intended i. Madison, Senate, House revisions reflect ii. Condemned all establishments, no matter how non-preferential, c. Respecting is a much broader term, intentionally d. Jefferson intended to forbid coercive state action and state endorsement of religious belief and observance History and Tradition I. McCreary County v. ACLU (2005) a. Held: 10 Commandments in courthouse violated EC b. Many examples of using government in prayer c. Invokes 9/11 d. Presidential Oath So help me god e. Repudiates Lemon test which aims to get at neutrality f. Even after Lemon, plenty of cases where government favors some religions (demonstrably false principle) g. We are allowed to acknowledge God, Creator, Almighty i. Government invocation of GOD is NOT an establishment h. 10 Commandments just honors God, not a specific religion II. Van Orden v. Perry a. Held: 10 Commandments at state capitol was constitutional b. Difference between personal speeches and government endorsements

I.

The Establishment Clause Generally a. Congress shall make no law respecting an establishment of religion. b. Prohibits the establishment of a governmentally endorsed church

c. Government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate governmental power to a religious institution, and may not involve itself too deeply in such an institutions affairs d. Purpose - Making those who are not part of a favored religion from feeling unwelcome II. Theories a. Strict Separationist i. First amendment has erected a wall between church and state. The wall must be kept high and impregnable. 1. Government should only do secular things (no $) 2. Doesnt want to be neutral, solely against ALL religion ii. Loves the Lemon test b. Non-Preferentialism/Neutrality/Equal Aid i. Focuses on neutrality between religion and other religions/non-religion ii. Ok for some funds to go to religious recipients so long as to same extent as everyone else gets it iii. Concerned with favoritism 1. Dont want anyone to feel like an outsider, or that others are being favored 2. If we make funding available make it to neutral parties (non profits running soup kitchens) a. BUT Strict Separationist would say well if the recipient of the above fund is a CHURCH, then CANT DO IT iv. Any coercion is sufficient to establish and EC violation if reasonable observer believe it favors a religion c. Accommodation (Scalia) i. Recognizes the importance of religion in society and embrace, encourage, accommodate its presence in government ii. This is simply the belief of the majority, so let them have what they want! iii. Only violate the EC if it literally 1. Establishes a church 2. Coerces religious participation iv. Promotion, favoring, acknowledgment, funding is OK 1. So long as not coercing, OK d. French Secularism Laicite i. If France had an official religion it would be laicite or secularism, a principle thats enshrined in this countrys constitution and reflects its history of religious wars between Catholics and Protestants, as well as the French Revolution, that basically booted the Catholic Church from power. 1. Government employees dont wear religious garb 2. No burkas in public

e. Last Common Denominator i. No official church ii. No preference among/between religions****(e.g. tax differently) 1. Preference = benefits one religion over another 2. Endorsement of any kind is a sort of preference III. Standing a. 1st A CONGRESS shall make no law b. 5th A No person shall be deprived of LIBERTY without due process i. Applies to all federal government ii. Establishment is part of our understanding of liberty IV. Church Involvement with Government & Ceremonial Deism a. If GOD is only referred to, probably NOT enough for a EC violation i. Eg: Opening every daily session of federal or state legislature with prayer (Marsh v. Chambers) 1. Versus commencement prayer adults welcome to come and go at their will and at graduation minors where attendance is important b. Deep roots going back to the First Congress; Founding Fathers did not regard this as a violation of the principles of church and state c. What about the Pledge of Allegiance i. Primary Purpose is NOT to promote religion at all ii. Again, long standing religion and practice V. Financial Aid to Religion: a. Basic Principles i. Everson v. Board of Education (1947) 1. Facts: NJ statute authorized local districts to pay actual cost of transportation to elementary and secondary school children to and from school, BUT included some religious schools. Thus, some tax dollars are used for public busing to religious schools, but the money goes to the parents NOT the schools. 2. District taxpayer sued didnt want funds going to parochial schools 3. Tension at issue NJ cant contribute tax-raised funds to schools that that teach tenants and faith of any religion, but at the same time, cant deny them the benefits of public welfare legislation a. No aid v. Equal aid 4. Held: General program everyone is benefitting from this reimbursement, not just religious schools a. 1st A only requires 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. b. This program helps parents get their children to school, regardless of their religion

c. No tax of any kind is going to support religious activities. The money is going to the parents not the school. Thus, the state is not making a preference, the parents are. d. Because this is a general law no heightened scrutiny i. *****SIMILAR STRUCTURE TO SMITH***** 5. Dissent: a. 1st A intended to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion b. Money raised by tax helps further childrens religious education c. Although the statute is neutral on its face, the only non-public, non-profit schools were Catholic. Thus, this isnt really neutral. b. NEUTRALITY THROUGH: No Aid v. Equal Aid i. No Aid = strictly separationist cant support religion at all 1. Dissent in Everson ii. Equal Aid = guarantees equality among religions as well as equality between religious and secular interests = non preferentialists 1. Prohibits discrimination in favor of religion and against religion 2. Neutrality between religion and nonreligion (Majority in Everson) c. Lemon Test as Modified (1971) i. Facts: RI law authorized state officials to supplement the salaries oft eachers of secular subjects in private schools by paying the teachers an amount not exceeding 15% of their annual salary (Government AND school pay to teacher); PA authorized DIRECT payments to nonpublic schools for the actual cost of teachers salaries, textbooks, and instructional materials ii. Issue: Is this entanglement? 1. How can we be certain when the school is giving the money that its only going to X? 2. Requires EXCESSIVE ENTANGLEMENT to make sure that techers dont infuse religion into secular courses will constantly need to survey iii. Three Prong Test for Evaluating Validity of Establishment Clause Issue 1. Statute must have a secular legislative purpose a. Similar to idea of neutrality i. If purpose is to advance or favor one religion neutral/secular b. Purpose can't be based on religion, or favor some religions c. CRITICISMS i. How to determine secular v. religious purpose? 1. Catholic senator supports aid to homeless because Christian thing to do 2. BUT MOTIVATION Purpose!! 3. Ask, does law ADVANCE/DISPARAGE religion 4. Establishment Clause not offended by subtle purpose 5. Wont be perceived y having a religious purpose

6. SECRET MOTIVE STIRS UP NO STRIFE 7. SO Defer to stated reason unless clearly a scam 8. Purpose determined by how a reasonable observer would perceive it ii. Whats wrong with a religious purpose? 1. Its OK for government to do this? We are a religious country, based on Judeo-Christian values 2. Assumption of secularism is just WRONG 2. Principal or primary effect must be one that neither advances nor inhibits religion. a. EX: Employer can't force employee to work on Sabbath? Violation of EC because clearly favors one religion over another; effect = promote and favor religion b. Again, fine to have a religious effect, dont want to be hostile to religion 3. Must not foster an excessive government entanglement with religion. a. Look at: i. Character and purposes of the institutions that are benefited ii. Nature of the aid that the state provides iii. Resulting relationship between government and religious authority b. If government gets too involved in religion religions are hurt and government is hurt c. We can't have a lot of involvement because causes strife iv. Number of justices disapprove of Lemon Test 1. Used sporadically and inconsistently judges use it when they see fit 2. Should move to a simpler, single test i.e. does the states conduct to an endorsement of religion LEMON TEST: All three parts must be satisfied in order for the governmental action to be acceptable under the Establishment Clause 1. The action must have a valid, secular purpose 2. The actions primary or principle effect must neither advance or prohibit religion (secular effect) 3. The action must not foster excessive government entanglement with religion a. This includes not creating an excessive degree of political division along religious lines Basic IDEA: If government spends on secular activity OK, even if recipient is religious,no big objection: BUT if spending on religious activity we gotta problem

**Think About: Who is Doing the Speaking? Compare to Wooley, Abood, Morse, etc.** d. Agostini v. Felton i. Facts: NY parochial school board challenged 12 year old decision that prohibited pubic school teachers from teaching in parochial schools as a violation of the EC.

ii. Holding: Altered Effect Prong of Lemon Test abandoned presumption that placement of public employees on parochial school grounds results in the impermissible effect of state sponsored indoctrination or constitutes symbolic union between government and religion 1. No presumption that public employee teacher will engage in religious activity while visiting 2. No symbolic union of church and state 3. Any incidental benefit to religious school has no impermissible primary effect or entanglement 4. OConnor in Agostini: [W]here the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis the aid is less likely to have the effect of advancing religion. e. Mitchell v. Helms i. Facts: Government pays for equipment that goes to religious schools ii. Holding: Permissable for loans to be made in this manner 1. Neutrality principle: If the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose 2. Equipment is offered equally to all applicants and is capable of secular use a. Government is only barred from funding items capable of only religious use 3. Thomas in Mitchell: If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government. iii. Souter dissent 1. Good: Government may ONLY fund items capable of ONLY SECULAR USE 2. Bad: Certain equipment is divertable to religious use iv. OConnor Concurrence 1. Good: Equipment is offered equally to all applicants and is capable of secular use and has not actually been diverted 2. Bad; government is barred from funding items capable of ONLY religios use; or that have been diverted for religious use VI. School Vouchers aid to students at religious schools/to their parents a. Zelman v. Simmons Harris (indirect aid) i. State created a pilot program designed to provide educational choices to families with children in the Cleveland school district. Aid went to childrens parents in the covered district to help send child to any school (public or private). Completely up to the parent as to where to enroll their kid.

ii. 1st A prevents a state from enacting laws that have the purpose or effect of advancing or inhibiting religion 1. Purpose = valid secular purpose provide educational assistance to poor children in a failing school system 2. Effect = advance or inhibit religion? a. Program of true private choice sending money directly to parents b. No reasonable observe would think government was endorsing religious practices and beliefs iii. OConnor Concurrence: Passes the Lemon Test 1. A wide-ranging survey of government programs provide indirect, unrestricted support for religious institutions Ohios program is thus neither substantial or atypical iv. Thomas Concurrence: Let the states do as they please v. Souter Dissent: Active separationist 1. Even if the program were neutral and rested on independent private choice, it would still represent substantial aid to the religious teaching function of sectarian schools and therefore violate the Establishment Clause. vi. Breyer Dissent: Parental choice cant significantly alleviate the constitutional problem the vouchers present. Must do everything we can do avoid religiously based social conflict VII. School Prayer a. Engel v. Vitale (1962) silent, voluntary prayer i. Facts: State initiated prayer that was to be read aloud at the beginning of each school day. Almighty God, we acknowledge our dependent upon Thee, and we beg thy blessing upon us our parents, our teachers and our Country." ii. Issue: Is a voluntary prayer inside a public school OK? iii. Holding: NO. Government is NOT allowed to proscribe a school prayer in school. iv. Rationale: This prayer was written by the state and it was endorsed by the state. Looks like a state establishing a church. Also since its in a school, it seems like an implied coercion of the children. 1. Really bad that someone in the government is writing/supplying these prayers 2. Coercive: Indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion 3. Union of government and religion destroys/degrades both v. Dissent: But this IS voluntary, not coercive. Children have an opt out 1. Court is being hostile to religion by denying people who want to do it the ability to do so. vi. Takeaway: This bans state written teacher led prayers in schools. vii. Some backlash b. Schempp (1963) Bible reading in school i. Facts: Law required daily reading of a chapter in the Holy Bible and/or the use of the Lords Prayer in public school classes. Also at issue was a law which required

at least ten verses from the Holy Bible to be read without comment at the opening of each public school on each school day. Students allow to excuse themselves 1. States interest = promote moral values, contradict materialism of our times, teach literature ii. Was this a violation? iii. Holding: Bible readings were clearly a religious exercise. Failed two of the three Lemon Prongs 1. No Secular purpose 2. No Secular primary effect iv. Dissent: Non-compulsory reading of the bible did not violate the Establishment Clause and that nonparticipating students had alternative activities during the time of the reading c. Wallace v. Jaffree (1985) silent, voluntary prayer i. Facts: Moment of silence laws where schools could impose moment of silence during which children would choose to meditate, pray, or think what they wish as long as they are silent. ii. Holding: Struck down MOS law on theory that they were adapted with the purpose of promoting religion. 1. Emphasized that the bills sponsor stated in the legislative record, as well as in the testimony before the court, that his motive in sponsoring the laws was to return voluntary prayer to the public school. 2. FAILED LEGISLATIVE PURPOSE 3. Violated complete neutrality toward religion 4. Failed Lemon Test a. No secular purpose b. Primary effect was to aid religion iii. NOTE: Only struck down moment of silence law left open to have MOS law that had a purely secular purpose d. Lee v. Weisman (1992) i. Facts: School-sponsored prayer at middle schools and high school graduations. Prayers were supposed to be non sectarian/nondenominational and the clergy were given instructions about what not to say. Weismans didnt want any prayer at ALL even if pastor and a rabbi. ii. Issue: Does the prayer violate the Establishment Clause? iii. Holding: YES iv. Rationale: The court takes a pragmatic view. Since graduation is so important, everyone goes, this is really coercive, and not optional. 1. State effectively coerced students into participating or supporting the prayers a. Ceremony was too important for students to miss b. The only way students could attend was to accept participation in the prayer made the prayer involuntary

No Lemon Framework used by Kennedy

c. The combination of school sponsorship and peer pressure required students to stand or maintain a respectful silence during the prayer and this was enough for Court to consider as coerced participation v. Concurrence: This law violates the free exercise clause because this isnt a neutral law. Rather its a law targeting religion (pick a clergy member) vi. Scalia Dissent: This is nonsectarian. Not picking among religions. 1. Not accommodating here 2. NO official compulsion dont HAVE to go to graduation! 3. Invocations and benedictions are part of an old tradition, with the objective of unifying participants and this secular/historical purpose should keep this prayer from being a violation of the Establishment Clause VIII. School Curriculum: It may not be modified to promote one religion over another or at the expense of non-religious views a. Epperson v. Arkansas i. Facts: AK has anti-evolution statute. Forbids teachers at state-supported schools to teach the theory or doctrine that mankind ascended or descended from a lower order of animals or to adopt any textbook that teaches this theory. Epperson faced with a choice between using the textbook that discussed evolution or following the law. ii. Holding: Anti-evolution statute was religiously motivated because it is contrary to the belief of some that the book of Genesis must be the exclusive source of doctrine as to the origin of man. 1. Violated EC as the statutes sole purpose was to bar the teaching of a theory that was at odds with a religious doctrine (so, religiously motivated) 2. Advancing religious belief in creation 3. State cant ban teaching of evolution b. Edwards v. Aguilard what about teaching evolutionism along with creationism i. Facts: LA law required that if one was taught, the other should be taught too. ii. Holding: NO secular purpose 1. What IS a valid secular purpose 2. Read the legislative record and found that creationism was founded on religious doctrine and that the statute was to promote creationism iii. Scalia and Rehnquist Dissent: 1. Felt that the record of legislative history was inadequate to support the majoritys conclusion that the statute promoted religion 2. Secular purpose = promote academic freedom! c. Lemon After these cases: i. Only a religious purpose fails ii. Religious and secular purpose OK IX. Displays in Public Places > ASK: Whether or not these displays acknowledge historical context of if they have a religious purpose? a. Lynch v. Donnelly (1984)

i. Facts: RI has a crche/nativity scene sitting in a public Christmas display next to a bunch of inflatable secular things including Santas house, reindeer, candy striped poles, tree, carolers, teddy bar, colored lights and banner that reads Seasons Greetings ii. Issue: Does the nativity scene violate the EC iii. Test Applied: Lemon Test 1. Secular Purpose a. Argument the court accepts: Recognize origins of national holiday. This isnt endorsing one religion over another 2. Secular Effect a. Argument from court: its cheap and doesnt require maintenance or entanglement iv. Holding: Does NOT violate EC v. Extracted Rule: If religious display is sufficiently secularized, then this is ok. Here, reindeer, candy canes, etc. Must look at the context of the symbol to see if it passes muster. A nativity scene ALONE wouldnt pass muster. vi. OConnor Concurrence: Here the government isnt endorsing religion. Its just acknowledge historic context. It wouldnt be ok if the government was giving stamp of approval. 1. Government is not allowed to endorse religion because it sends a message to nonadherents that they are outsiders, not full members of the political community and the accompanying message to adherents that they are insiders 2. Overall display would negate any feeling of endorsement vii. Dissent: This is a symbol of the city that endorses religious aspect of holiday! 1. There IS endorsement here 2. Imprimatur of approval on the religious beliefs exemplified by the creche b. Allgheny County v. ACLU (1988) i. Symbolic Endorsement Test 1. Two Scenes a. Creche: Stands alone in front of the county courthouse (STRUCK DOWN) i. SS: Bad no need ii. Neutrality: Sense message that Christians are the favored members of the political community/insiders/outsiders 1. Unconstitutional effect of conveying government endorsement 2. No viewer would reasonably think that it occupies this location without support/approval of the government iii. Accomodationists: This is just FINE, doesnt force anyone to do anything look away. b. Menorah next to the Christmas Tree (UPHELD) i. SS: Strike down, no interaction between religion and government at all

ii. N: Accepted it because reasonable person sees secular holiday spirit 1. OConnor recognizes diversity 2. Pluralism and freedom of choice 3. Conced menorah is a religious symbol but part of overall holiday setting iii. A: No one is forced, if you prohibit, you are just being hostile to religion c. McCreary County v. ACLU (2005) i. Struck DOWN courthouse display of Ten Commandments ii. Multiple versions of displays one set surrounded by religious passages, also ceremony invoking God, last set titled Foundation of American Law iii. Holding: EC violation NO secular purpose 1. Reasonable observer knows the history of the 10 Commandments religious!! 2. CLEAR religious purpose 3. Statements of purpose after County got a lawyer a. No reasonable purpose would assume the county had cast off its original purpose iv. Dissent: It is OK to prefer religion over nonreligion. d. Van Orden v. Perry (2005) i. Supreme Court upheld constitutionality of a 10 Commandments display on grounds of TX state capital ii. Demonstrates importance of CONTEXT (acres of land, around other monuments of historic significance, likened to a museum) iii. Given by the Fraternal Order of Eagles iv. Breyer and perception 1. No fixed test; use best judgment to effectuate underlying purposes of the Religion Clauses 2. Relevant factors in Van Orden included: 3. Monument contains religious and secular messages 4. Monument indicates it was donated by private party 5. Mixed but primarily nonreligious purpose 6. Setting has 17 monuments and 21 historic markers 7. Setting not suited to meditation or religious activity 8. Not at a public school 9. Removal would be divisive 10. Determinative factor: unchallenged for 40 years e. Hein v. Freedom From Religion Foundation The Free Exercise Clause I. Generally

1. Congress shall make no law prohibiting the Free Exercise of religion i. Does the state have to be hands off to all religions ii. Can the state not force you to believe something? iii. Lots of different conceptions of the scope of the right 2. Provides protection for religious freedom (right to believe, think, profess whatever religious doctrine you desire) i. SO government cant compel affirmation of a religious belief or punish religions it believes to be false ii. Embraces (1) freedom to believe (absolute); (2) freedom to act (NOT absolute i.e. cant always protect religiously motivated conduct) 3. Invoked i. When religious groups seek EXEMPTIONS (i.e. dont want to shave, wear a uniform because must wear religious garb) A. Government prohibits behavior that the persons religion requires B. Government requires conduct that a persons religion prohibits C. Individuals claim that laws burden or make more difficult religious observances 4. Test: i. Determine the scope of the right ii. Determine the degree of scrutiny for assessing government policy iii. Is the burden sufficiently justified? 5. Rule for federal Constitution? SMITH TEST i. Heightened scrutiny for TARGETED laws burdening acts motivated by SINCERE religious belief ii. No heightened scrutiny for general laws, whether they burden acts motivated by sincere religious beliefs or not 6. RFRA: Heightened scrutiny for neutral federal statutes that substantially burden acts motivated by sincere religious beliefs II. Pre-Smith 1. Reynolds v. US (1878) i. Facts: Mormon church members challenged anti-bigamy statute. R had been convicted. ii. Issue: Does the federal anti-bigamy statute violate the 1st A FEC because plural marriage is a part of religious practice? iii. Holding: Statute upheld NOT a violation. Can punish criminal activity without regard to religious belief. 1st A protects religious belief, but not if its criminal, such as bigamy. Those who practice polygamy could no more be exempt from the law than those who may wish to practice human sacrifice as part of their religious belief.
Pre-Smith Test: 1. Does government action BURDEN religion? a. Does law prohibit something religion requires? b. Does law require something religion prohibits? c. La generally burdens your ability to follow religion tenants and dictates 2. IF YES STRICT SCRUTINY a. Is the burden on religion justified by a compelling government interest or other alternatives?

A. Court held that government has broad authority to prohibit religious conduct and rejected idea that religious exemption was required 2. Cantwell v. Connecticut (1940) i. Jehovahs witness and his sons attempted to sell religious magazines without a permit and disorderly conduct ii. FEC protectes freedom to believe AND freedom to ACT iii. Freedom to believe is absolute but religious conduct remains subject to regulation for the protection of society iv. Rejected the distinction between religion and conduct. v. Holding: Overruled conviction because had a right to preach and diseeminate their religious views 3. Wisconsin v. Yoder HYBRID CASE applied strict scrutiny i. Facts: Wisconsin had a criminal statute that requires kids to stay in school until they are 16. Yoder is an Amish parent who doesnt want his kids to go to school after the 8th grade. Yoders religion believes that after 8th grade he should instruct them on the farms and that the children shouldnt be in society any longer. ii. Holding: Statute DOES violate the FEC iii. Rule: A states interest in education must balance fundamental rights and interests such as the FEC iv. Rationale: The Amish belief is sincere. The state compels Yoder with threat of criminal sanctions. Court tips to the side of allowing religious beliefs. v. Takeaway: This case just starting to develop the free exercise jurisprudence. The court looked at whether the religion and the exercise was real or not. Risky area for the courts to be looking at A. Free Exercise clause gives parents the right to control the religious upbringing of their children** 4. Sherbert v. Verner (1963) Applied strict scrutiny i. Facts: Sherbet is a 7th dat Adventist. She won't work on Saturday and as a result, she gets fired. Since she won't work on Saturday, the people in charge of unemployment determine that she has failed to take an acceptable job, so her unemployment insurance is cut off. A. NOTE: Unlike Yoder, the state does NOT compel her to act (he HAD to send kids to school, she did NOT have to do anything) B. Regardless, her religious choice is burdened ii. Rule: Any incident burden on the free exercise of religion may only be justified by strict scrutiny (favorable to FEC) A. Carve Out: The Court notes that public safet, peace, and order ARE compelling government interest where the government can do what they want, regardless of if it incidentally burdens religion iii. Holding: Law did VIOLATE her 1st Amendment Rights A. State interest simply not compelling

iv. Takeaway: Heightened scrutiny for general laws burdening sincere religious belief A. Belief must be sincere and religious B. Governments reason must be compelling By granting a religious exemption, is the government establishing religion? IN SHERBERT, the Court found no establishment because the exemption reflects nothing more than the governmental obligation of neutrality in the face of religios differences, and does not represent that involvement of religious with secular institutions which is the object of the Establishment Clause to forestall 5. Torcaso i. Facts: State constitutional provision required public officials to declare a belief in God as a prereq to assuming office as a notary. ii. Holding: Government may not compel anyone to affirm or deny a religious belief. A. What legal theories was the Court using? a. Free Exercise? > Not preventing practice of religion just cant get a job because of your religion b. Establishment Clause? > Government may not constitutionally require an applicant to swear or affirm belief in god c. Compelled speech? > If you want a job with us, must say X d. Article VI of the Constitution? > All executive and judicial officers of US and several states shall be bound to support the Constitution but no religious test shall ever be required e. Equal Protection? > Singles out aetheists for no reason I. What level of scrutiny? f. SDP?> Violates one of your liberties privacy? 6. John Africa & MOVE i. What IS religion? ii. Family resemblance is there something that all religions have in common? iii. III. Employment Division v. Smith (1990) Test 1. Facts: Smith is a Native American with a sincere religious practice that involves ingesting peyote for sacramental purposes. He was fired and is disallowed to collect unemployment because he was fired for work related misconduct. 2. Note: Applying the SHERBERT test law would have been upheld 3. NEW RULE: Heightened scrutiny for TARGETED laws burdening acts motivated by sincere religious belief because they are religious 4. Holding: Law is UPHELD. NOT a FEC violation 5. Rationale: The law was NOT targeted at a religion. Although there was an incidental burden, court now just uses a rational basis test. 6. Distinguish from Yoder/Sherbert: Unlike Yoder, this doesnt involve a fundamental right; Unlike Sherbert, this is an unemployment compensation case

7. Takeaway: This is the rule we use today. This rule retreats from robust protection of individual religious practice. Thus, states can burden religious exercise as long as you arent targeting a particular religion. i. Pros: Government is not in the business of deciding which religion is legitimate and which practes are central to religious belief ii. Cons: Allows the police process to regulate issues surrounding religious practice 8. IF we hand out exemptions all over the place, exceptions will encompass the rule!! 9. Political Reaction i. A few states liked the Sherbert rule, so they acted statutes to interpret their constitution like Sherbert A. Most states follow Smith ii. Fed passes Religious Freedom Restoration Act A. Any time you do ANYTHING that SLIGHTLY burdens religion SS B. Only applies to federal statutes but not the states NEW SMITH TEST: Really, heightened (not strict) scrutiny  Neutral law? o Facially neutral + discriminatory purpose =NOT NEUTRAL o Non-facially neutral law and targets religious practice = NOT NEUTRAL  Of general applicability? o Is the law equally applicable to everyone (religions and otherwise)?  Imposes burden on all?  Or is the law substantially UNDER-inclusive o If it is a neutral law of general applicability which incidentally burdens religion, will NOT violate FEC.  Look to the TEXT, wording, background and function!!  If it is NOT NEUTRAL SS (Lukumi

IV. Post-Smith 1. Political Reaction i. A few states liked the Sherbert rule, so they acted statutes to interpret their constitution like Sherbert A. Most states follow Smith ii. FED passes Religious Freedom Restoration Act A. Congress eclared that the Framers viewed free exercise of religion as an unalienable right and Smith had eliminated requirement that government justify burdens on religious exercised if law was neutral B. RFRA Rule a. Government cant substantially burden a persons exercise of religion even if the burden results from a rule of general applicability, unless it demonstrates the burden is (1) in

furtherance o a compelling government interest and (2) is the least restrictive means of furthering that compelling government interest C. Any time you do ANYTHING that SLIGHTLY burdens religion SS D. Only applies to federal statutes but not the states iii. Religious Land Use and Institutionalized Persons Act A. No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, unless burden furthers a compelling and does so by a least restrictive means a. Ohio inmates claimed that they were adherents to nonmainstream religions and complained that prison officials violated RLUIPA by failing to accommodate their religious exercise in various ways. I. Court REJECTS their challenge: Distinguished RFRA on basis that RULIPA was more limited II. Only applies when a program that receives Federal financial assistance or the substantial burden affects. 2. When does a law violate the FEC? i. Law that prohibits religious belief would violate ii. Facial discrimination government prohibits, singles out religious practices subject to SS A. Not a neutral law (i.e. no Muslim garb in school) iii. Law not of general applicability iv. IMPACT on religion is NOT ENOUGH V. Church of Lukumi (1993) 1. Facts: When Santeria was spreading in Florida, the government passed a law that prohibited animal sacrifice. Animal sacrifice is a tenant of Santeria. There was clear legislative evidence that the law targeted religion. City council held an emergency session to adopt the ordinance. City couched the ordinance in notions of public morals, peace and safety 2. Issue: Was this an FEC violation? 3. Held: YES blatant here! i. Law was NOT neutral or of general applicability ii. Neutral A. Facially neutral with a discriminatory purpose is NOT neutral a. Look at record iii. Generally applicable A. Under inclusive a. If purpose was to protect animals, prevent cruelty, then there are other ways of doing it. 4. VERY clear that the PURPOSE was to discriminate against religion based on citizen objections to Santeria Practices which led to enactment of ordinances.

VI. Christian Charities (2004) VII. Ballard v. US 1. Facts:Guy Ballard was the leader of the "I Am" Movement and claimed to have had remarkable spiritual experiences - including personal encounters with Saint Germain and even Jesus. As a result of these experiences, he believed that he knew things like the secret of good and even claimed that he could heal incurable diseases/ Ballard and his family sent out mass mailings repeating these claims and soliciting contributions in exchange for his healing services. The government claimed that he 'well knew' that these claims were false and he used them to defraud others of their money - thus, he was convicted of mail fraud. Ballard challenged his conviction by arguing that the government had no right to judge his religious beliefs in this manner. 2. VIII. Compelled Speech + Religion 1. Smith suggested that the Court might strike down a law that burdens religion when it implicates other constitutional rights, particularly free speech rights BUT found that Smith did NOT discriminate against religion and didnt present a combination of claims i. Wooley v Maynard (1977): Court held that state could not compel an individual to display a license plate containing a slgan that offended his religious beliefs A. Free speech + cant be forced to associate with beliefs one finds to be repugnant ii. W. VA v. Barnette (1943): Court struck down statute requiring flag salute. Relied heavily on free speech principles IX. HYPOS 1. Group of college students ban to form a new religion devoted to the use of LSD. Illegal to use LSD. File a judgment seeking to have the laws declared unconstitutional as applied to them (SOUNDS LIKE PEYOTE!) i. Smith rule even if incidental burden on religion OK because no LSD is a generally applicable and otherwise valid law against criminal activity A. Neutral? Yes not designed to discriminate against any religion ii. Does it burden free speech rights too? A. Not really 2. Congress passes law prohibiting sale, manufacture, distribution of alcohol. But Catholics use wine in their religious ceremonies, so the law provides an exemption for Catholics ONLY. Constitutional to exclude other religions? i. NO. Favoring one religion against others (Lukumi) 3. No public alcohol consumption i. Neutral yes, no facial discrimination or target of religion ii. Generally applicable? Yes iii. Burdens religion but incidental 4. No public consumption for religious worship i. Neutral NO facially targets religious use

ii. Generally applicable iii. Apply SS (failed prong 1) 5. No consumption of alcohol except for at bars and restaurants i. Neutral yes, not singling out religion. ii. But what was the purpose? iii. Generally applicable? Yes

ON EXAM: IF Free Exercise Clause Question ASK 1. Smith Rule: States not required to create exceptions for generally applicable and otherwise valid laws that have the incidental effect of burdening religion a. Rejected Sherbert s compelling government interest test (only applicable to unemployment compensation) 2. In general, unwilling to delve into the sincerity of an inividuls religious belifs or to determine whether they are genuine or valid.

IF Establishment Clause Question ASK 1. Lemon Test a. Neutral legislative purpose (purpose can t advance/inhibit religion) b. Neutral legislative intent (effect must neither advance or inhibit) c. No excessive entanglement (government shouldn t be monitoring religion) 2. Coercion? Ex: Lee v. Weisman 3. Endorsement? a. Focus should be on the message that the government s practice communicates based on the context in which it appears b. Holiday Display cases i. Does OVERALL DISPLAY convey a message of endorsement