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The Religion Clauses
This document provides an overview of key clauses in the First Amendment regarding religion, including the Establishment Clause and Free Exercise Clause. It summarizes the various tests the Supreme Court has used to interpret these clauses, including the Lemon test, Endorsement test, and Coercion test. It also discusses precedent related to issues like government funding of religious organizations, religious displays, school prayer, and protection of religiously motivated conduct. The document aims to outline the major areas of debate and evolution of jurisprudence around the religion clauses of the First Amendment.
Law◦
The Religion Clauses
- 1. First Amendment Clauses ImpactingReligion NOTE – text in blueblue will lead you to additional information. Text in redred indicate emphasis, NOT required vocabulary as in past slides.
- 2. Lecture Structure 1) Sourcesof religious liberty 2)2) Establishment ClauseEstablishment Clause Meaning and Problem Areas 3) Establishment Clause Tests 4) Current Establishment Clause Law 5) Free Exercise of Religion
- 3. What Does theConstitution Say? ● Article VI says that no “religious test” shall ever be required as a qualification for public office. ● What does this mean? – Cannot require office holder to be religious – Cannot prohibit clergy members from holding office http://www.youtube.com/watch?v=m1Yff-_9MZs
- 4. The First Amendment ● Passedas part of compromise with the Anti-Federalists. – This group was afraid of the new strong central government that was created by the new Constitution. – Goal was to create limits on new national government. – NOTE – state constitutions already had similar rights, but these only protected individuals from state government. Benjamin Franklin (age 81) at the Constitutional Convention
- 5. Text of the1st Amendment ● Establishment ClauseEstablishment Clause – “Congress shall make no law respecting the establishment of religion . . .” ● NOTE – the popular German translation of this “das die Einführung einer Staatsreligion zum Gegenstand hat” is far too limited. ● Free Exercise ClauseFree Exercise Clause – “or prohibiting the free exercise thereof (die freie Religionsausübung verbietet) ● So what do these mean? Follow links for competing views.
- 6. Take Note ● The twoclauses on the prior slide, as well language about no religious tests for elected office, is all we have in the U.S. constitution regarding this subject. ● Compare to the GG, which expressly: – Allows for taxes to be levied to support religious communities Artikel 137 (Weimarer Verfassung) – Requires religious instruction in schools GG Art. 7 – Gives some religions special public corporate status, and others associational status. Artikel 137 (Weimarer Verfassung)
- 7. Establishment Clause Problem Areas ● GovernmentFunding of Religious Activities – Particularly school related activity ● Government Acknowledgments of Religion – Religion in the public square – Religion in the public schools ● Activities based on historical relationship between church and state ● Religious speech in public forums Nativity scene (Krippa) inside the Texas State Capitol
- 8. Tests for allOccasions ● The Court has struggled to determine what “laws respecting the establishment of religion” mean. ● It has at times created specific tests as a means to define this. (see next slides) ● At other times it has adopted broad principles like neutrality.
- 9. Interpreting Establishment Strict Separation: “there should bea wall separating church and state.” Accommodation: recognize importance of religion in society and accommodate its presence in government. Neutrality: state cannot confer benefit or impose burden on religion Formalist Neutrality: state may support religion so long as done in neutral manner
- 10. Modern Establishment ClauseJurisprudence: EversonEverson v. Board of Ed. (1947) ● State of New Jersey has law that pays for the transportation to school of all children, regardless of whether they are attending a state or religious school. ● Is this a “law respecting the establishment of religion.” – Does aiding religion = “respecting religion?”
- 11. First Principles (Everson) ● Nostate church ● No laws that aids one religion, aids all religions or prefer one religion over another. ● Cannot force nor influence a person to engage in religious practices or profess (bekunden) a belief or disbelief in any religion. ● Cannot punish anyone based on religious beliefs or disbelief, for church attendance or non-attendance. ● No tax in any amount, large or small, can be levied to support any religious activities or institutions. ● Government cannot openly or secretly participate in the affairs of any religious organizations or groups and vice versa.
- 12. The Lemon TestTheLemon Test ● Facts – state law gives money to religious schools for educational material. ● Test created by Supreme Court – Governmental action must have a secular (non-religious) purpose AND – Primary effect of action can neither advance nor inhibit religion AND – Action must avoid excessive entanglement of government with religion. ● Holding – only way to ensure that state money not being used for religious purpose would be to create comprehensive oversight scheme = excessive entanglement
- 13. The Endorsement TestTheEndorsement Test ● Whether government action has purpose or effect of endorsing religion or disapproving of religion in the eyes of the community members. – Does the act send a message to non-adherents that they are outsiders, not full members of the political community.
- 14. The Coercion TestTheCoercion Test cliqr question 1cliqr question 1 ● “… at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.” – Coercion: two views ● Feeling pressured ● Being forced by law ● Question: is this also what the Free Exercise Clause protects against?
- 15. When Rights Conflict ● EstablishmentClause v. Free Speech – Generally these cases involve private religious speech on government property or with government funds. ● Capitol square shall be open “for use by the public ... for free discussion of public questions, or for activities of a broad public purpose….” – Ohio Admin. Code Ann. § 128-4-02(A) (1994) ● Facts – KKK asks to place temporary cross on square. Ohio denies request claiming it would violate the Establishment Clause. NOTE – In Capitol Square they did not want to burn it!
- 16. Freedom of Speechor Endorsement of Religion? ● “Religious expression cannot violate the Establishment Clause where it: – (1) is purely private and – (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms - Capitol Square Review Bd. v. PinetteCapitol Square Review Bd. v. Pinette ● Prohibiting religious speech in a public forum because it is religious in nature = content based restriction of speech. ● The Establishment Clause does not demand private religious speech be treated differently.
- 17. Current Precedent: Funding FormalistNeutrality ● The government may provide tuition vouchers for low-income families to use to send their children to the participating school of their choice, even if the school receiving the government-funded voucher is religious. Since individual families are choosing where to send their children, there is no perceived endorsement of religion by the government. – see Zelman v. Simmons-HarrisZelman v. Simmons-Harris ● The government may pay for educational materials and computer software and hardware at private, religious elementary and secondary schools, as long as it is used to implement secular, neutral, and non-ideological programs. The aid must be equally available to nonreligious organizations or schools as well. (Mitchell v. Helms) – NOTE: case did not overturn Lemon, instead focused on effect, not entanglement.
- 18. Government Funding Test CliqrQuestion 2 ● Must be indirect – Cannot directly fund religious activity. ● Must be neutral – Every kind of school must be able to get the funding = formalist neutrality ● Homelessness (Obdachlosigkeit) is a problem in Big City. The city decides to contract with an outside organization to provide services to the homeless population, including providing shelter and food. The organization that won the bid (Auschreibung gewonnen) for this contract is a religious organization that is loosely affiliated (lockere Verbindung) with a local church. The organization uses the public funding (öffentliche Mittel) to operate its overnight shelter (Obdachlosenheim), job-counseling program, and soup kitchen. Every evening at the shelter and the soup kitchen, the workers lead a prayer and Bible reading for all guests. Religious literature is distributed with every meal. Is this allowed?
- 19. Current Precedent: ReligiousDisplays Lemon and Endorsement Tests ● Facts – display in public area made up of nativity scene (Krippa), Santa and reindeer, Christmas tree, candy canes and “Seasons Greetings” sign. ● Question – does presence of religious display violate Establishment Clause – See LynchLynch v. Donnelley ● Court applies Lemon test – Purpose of overall display not overtly religious – Effect of overall display does not have primary effect of favoring religion.
- 20. The Importance ofthe Tests ● Christian nativity scene in front of County Courthouse. At the crest of the Nativity scene or creche, an angel held a banner proclaiming, “Gloria in Excelsis Deo,” meaning “Glory to God in the Highest.” ● The crèche was donated by the Holy Name Society, a Roman Catholic group and bore a sign indicating this.
- 21. ● 18-foot Chanukah menorah outsidethe City County Building next to the city’s 45- foot decorated Christmas tree. At the foot of the tree was a sign bearing the mayor’s name and containing text declaring the city’s “salute to liberty.” Importance of the Tests ● The menorah was owned by Chabad, a Jewish group, but it was stored, erected and removed each year by the city.
- 22. Applying the Tests ● 5Justices apply Endorsement test. – All 5 find nativity scene = endorsement – 2 find menorah & Christmas tree display ≠ endorsement – 2 + 4 dissenters = menorah/tree display OK ● 3 Justices find both displays to be violation of Endorsement Test ● 4 justices apply coercion test. – Neither display is coercive. No Est. Clause violation.
- 23. Court Precedent: ReligiousDisplays Cliqr Question 3 & 4 ● Test - Religious Displays Erected by Government: – must be done primarily for a non-religious purpose – reasonable person would see this as not advancing or inhibiting religion. – the reasonable person would not feel the display made them an outsider in the eyes of the state. ● NOTE – this is part of the Endorsement Test, which was established after the Lynch case. ● Cross on public property ● Erected after WWI as war memorial. ● No other displays near it ● Allowed?
- 24. Precedent: Government EndorsedPrayer Coercison Test ● Government initiated prayer in school is prohibited. – Even if it allows unwilling participants to opt out. See Engel v. VitaleEngel v. Vitale ● Government initiated prayer before legislative meetings permissible. – See Marsh v. ChambersMarsh v. Chambers – More recentlyMore recently the Court said that these prayers can take place before local government meetings as well. ● In these cases, the Court applies the coercion test! – What is the primary factual difference between these prayer cases?
- 25. Free Exercise ● General Rule– government may not compel or punish religious beliefs – people may think and believe anything that they want. ● Freedom to believe (absolutely protected) ● Test of belief - “whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one . . . .” – United States v. Seeger (1965)
- 26. Protection of ReligiouslyMotivated Conduct ● First Principles – no intentional restrictions – laws passed with the intent of restricting religiously motivated conduct will be judged under strict scrutiny. ● Church of Lukumi Babalu AyeChurch of Lukumi Babalu Aye v. Hialeahv. Hialeah – Laws enforced with hostility toward religion will judged under strict scrutiny. ● Master Cakeshop v. Colo. Civil Rights Comm. ● General Principle – laws that incidentally restrict religiously motivated conduct will be judged under the rational basis test. – Rationally related to advance a legitimate government interest.
- 27. Employment Division v.Smith ● Facts – Smith was fired from job after being found to have taken illegal drugs as part of religious ceremony. He was then denied unemployment benefits by the state because state law says such benefits will not be paid to person fired for misconduct. Smith claims state violated his free exercise rights by punishing him for taking part in a religious exercise. ● Put differently, he claims his conduct was not misconduct because it was done as part of a religious exercise.
- 28. Employment Division v.Smith ● Court holds: – An individual’s religious beliefs cannot be used as excuse to avoid compliance with the law. – So long as the law is of the general and neutral sort, the mere fact that incidentally interferes with religious practices does not mean in violates free exercise rights. ● A law aimed at restricting religious practices, however, would only be valid if it were necessary to serve a compelling interest (strict scrutiny test).
- 29. The Aftermath ofSmith ● Congress passed a law that says any federal actions that interfere with free exercise of religion must be judged using the strict scrutiny test. – Only applies to Federal actions! ● Many states have passed similar laws. ● ALSO, there is nothing in the Smith decision that prohibits states from creating religious exemptions to their criminal laws!