Religion and the american constitutional experiment ch6

Religion and the american constitutional experiment ch6

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  RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT Chapter6 The Free Exercise of Religion
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  The Fourteenth Amendment The incorporation of the First Amendment religion clauses into the Fourteenth Amendment due process clause:  Shifted principal authority over the American experiment in religious liberty from the states to the federal courts.  After the 1940s, most laws in America that touched religion became subject to First Amendment influence, if not scrutiny.
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  Free Exercise RightsVersus Governmental Power  At the heart of a free exercise case if a conflict between the exercise of governmental power and the exercise of a private party’s religion.  The challenged governmental entity or officer can be at any level – federal, state, or local.  A free exercise claimant may be either a religious individual or a religious group.
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  Free Exercise Claimants “Justiciability” requirements:  The claimants must state an actual “case or controversy.”  They must have “standing” to bring the suit.  They must raise a constitutional issue on which a court has actual “jurisdiction” rather than a “political question.” Claimants must also demonstrate that it is their religious exercise that has been improperly burdened.
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  Resolving the Conflict The Court uses two principle methods to resolve this basic conflict between government power and free exercise rights. 1. Balance juxtaposed constitutional claims, reach a judicious decision, and then follow that reasoning and results in subsequent cases. 2. Examine the Court’s basic standard of review of the challenged law. This method is more commonly utilized.
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  Low-Level Scrutiny  Low-levelscrutiny. The Court will uphold the challenged law if:  (1) it is in pursuit of a legitimate governmental interest  (2) it is reasonably related to that interest.  This test, often called the rational basis test, features high judicial deference to the legislature and other branches of government.
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  Intermediate or Heightened Scrutiny Intermediate or heightened scrutiny. The Court will uphold the challenged law if:  (1) it is in pursuit of an important or significant governmental interest  (2) it is substantially related to that interest.  This test, often called the intermediate scrutiny test, is not as deferential to the legislature.
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  High-Level or StrictScrutiny  High-level or strict scrutiny. The Court will uphold the challenged law only if:  (1) it is in pursuit of a compelling or overriding governmental interest  (2) it is narrowly tailored to achieve that interest, not intruding on the claimant’s rights anymore than is absolutely necessary.  This test, often called the compelling state interest test, involves close judicial inquiry into the purposes and provisions of the law.
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  Free Exercise andPolygamy (1879-1890)  The Court first applied the free exercise clause in Reynolds v. United States (1879).  The Court used an extremely narrow reading of the free exercise clause to uphold congressional restrictions on individuals and groups that preached and practiced polygamy.  In this case and other similar cases, the Court quickly dispensed with the Mormons’ free exercise arguments.
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  Free Exercise andConscientious Objections (1918-1971)  The Court used similar logic to address the free exercise claims of pacifists who claimed conscientious objection to war or to oaths supporting warfare.  Arver v. United States (1918)  United States v. Schwimmer (1929)  United States v. Macintosh (1931)  Girouard v. United States (1946)
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  Freedom and Equalityof Religious Expression (1940-2002)  Freedom of expression was at the core of the free exercise clause.  Both the eighteenth-century founders and the nineteenth-century states regarded freedom of religious speech, press, assembly, and other expressions of faith to be essential to religious liberty.  The issue that emerged in the twentieth- century was whether the federal courts also should protect freedom of expression under the free exercise clause.
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  Liberty of Conscienceand Free Exercise Exemptions (1943-1989)  The “unalienable right of private judgment in matters of religion” includes the freedom to choose or to change one’s religious beliefs or practices without coercion or control by government, and without facing discrimination or penalties for the religious choices once made.  Initially, there was discordance between principle and practice.
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  Neutralizing the FreeExercise Clause (1982-1993)  From the 1940s to the 1980s, the Supreme Court read the free exercise clause in expansive terms.  In the 1980s, the Supreme Court gradually reduced the free exercise clause to a single and simple principle of neutrality.
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  Free Exercise inthe Age of Statutes  Employment Division v. Smith (1990)  Weakened free exercise review.  Aided somewhat the cause of religious liberty.  It has done so by pressing litigants and legislators to look elsewhere in the Constitution for fuller and firmer protection.  Another irony of the Smith case is that statutes now provide considerably more protection for religious liberty than the First Amendment free exercise clause itself.