Chapter 5 1 st Amendment Religion Clauses

1. Chapter 5 1st Amendment Religion Clauses

2. Religion & the 1st Amendment • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”

3. Religion & the 1st Amendment • Free Exercise Issues • Freedom to believe is the closest thing to an absolute right • Warren Court’s move from a theistic to philosophical definition of “religion” • Four components of “religion” • Belief in God or equivalent • Acceptance of an external moral code • Associational/community dimension – “church” • Demonstrated sincerity of belief • Limits on free exercise of religion • Polygamy • Withholding medical services/inoculations • Poisonous snake handling • Drug use (peyote cult) in Native Am. Church (legalized by Texas in 1970 and by U.S. in 1995) • Time, place, manner restrictions on religious solicitations • Compulsory patriotic rituals – W.VA v Barnett (1943) • Compulsory school attendance – WI v Yoder (1972)

4. Religion & the 1st Amendment • Free Exercise Issues • Sherbert v Verner (1963) – laws or policies negatively impacting religious freedom had to pass the “strict scrutiny” standard • there is a compelling state interest • the “least restrictive means” possible has been used to accomplish that interest • Unemployment Division of Oregon v Smith (1990) • strict scrutiny abandoned in favor of “general applicability” standard • If law applies equally to all . . . • Incidental infringements on religious exercise is tolerable • Only laws which appear to specifically target a religious practice fall afoul of 1st Am; can only be justified by meeting strict scrutiny standards

5. Employment Div. (of Oregon) v Smith, 1990“Smith Test” NEUTRAL GENERAL APPLICABILITY VALID LAW NO YES YES NO Strict Scrutiny: “compelling state interest” standard SHERBERT TEST (Sherbert v Verner) 1963 SHERBERT

6. Religion & the 1st Amendment • Free Exercise Issues • Church of the Lukumi Babalu Aye v City of Hialeah (1993) • Even under “Smith test” the law fails • Law clearly targets a religious practice . . . killing animals for purpose other than food consumption • Legitimate police powers could have been achieved far short of the total ban on animal sacrifice.

7. Reaction to Smith Test • Passage of the Religious Freedom Restoration Act of 1993 – imposed strict scrutiny standard of Sherbert ruling on every level of gov’t. when its actions negatively impact religious freedoms • City of Boerne v Flores, 1997 • Texts invariably say Court struck down the RFRA as a violation of separation of powers principle (Congress imposing a standard of constitutional interpretation on Court) • Actually only invalidated the portion of the act which bound this standard on the states/localities • Gonzales v. O Centro Espirita Beneficenteuniao do Vegetal, 2006 • Invokes RFRA as binding on U.S. gov’t action, i.e., Sherbert rule • Ban on import of hallucinogenic tea for religious purposes under the Controlled Substances Act overturned

8. The Establishment Clause • The Court’s evolving interpretation of the clause • Prohibits establishing an “official church” or preferring one church/denomination over others for benefits and privileges – “nonpreferentialism” allowing for “accommodation”: • position held by Scalia, Thomas (and Rhenquist); • presumed to be position of Roberts and Alito; • position of Court prior to Everson case in 1947 • Everson case introduced “separationist” principle • Jefferson’s metaphor of a “wall of separation” in 1802 private letter to the Danbury Baptist Association • even that case did not prohibit the challenged state action involved • was basis of striking down prayer & Bible reading in school [Engle v Vitale (1962), Murray v Curlett & Abington School Dist. v Schempp, 1963]

9. The Lemon Test • Current (though weakening) Supreme Court standard for evaluating any “state” action challenged on “establishment clause” grounds (Lemon v. Kurzman, 1971) • Does law have a predominantly secular purpose? • Does law have a “neutral impact” which neither advances nor restricts religion? • Does law create an “excessive entanglement” between the Church and State? • If the answer to either of the first two questions is “NO” orthe answer to third question is “YES”, the law is void

10. Application of the “Lemon test” to “parochiaid” • Invalidated supplementing parochial school teachers’ salaries for secular subjects, reimbursements for administering/grading tests required by state, grants for building maintenance and repair, tax benefits, tuition reimbursement, “auxiliarly services” such as counseling, testing, instructional materials (although not textbooks), after-school enrichment courses, teachers’ salaries and materials for remedial instruction [Agostini v Felton (1997)], school district created for handicapped children of a particular sect, required teaching of “creation-science” [Edwards v Aguillard, 1987] moment of silence for prayer/meditation [Wallace v Jaffree, 1985)], displaying of Ten Commandments in classrooms

11. Application of the “Lemon test” • Upheld funding for secular buildings at religious colleges, textbook loans, general purpose funds for secular purposes in religious colleges, vocational rehab assistance for student at religious college, sign language interpreter for student at religious high school, moment of silence when purpose not specified • Outside of School: Marsh v Chambers, 1983 • Lemon test acknowledged but not followed • Clear historical practice trumps legal theory • Incorporation principles do not permit binding a stricter standard on the states than those bound on the U.S. • Lynch v Donnelly (1984) • Waltz v Tax Commission (1970) – pre-Lemon

12. Evolution of “Separationist Interpretation” of the Establishment Clause • Prohibits endorsing the Christian (or any other religion) in any aspect over other religions; prohibits conveying a message of endorsement – O’Connor • Prohibits expressing any “approval” or “endorsement” of religion vs. non-religion or irreligion – Douglas, Souter

13. Evolution of “Separationist Interpretation” of the Establishment Clause • Prohibits any coercive element in state policy • Lee v Wiseman – clergy-led invocation (1993) • Santa Fe Independent School District v Doe – student-led invocation at athletic events (2000) • Court rejected claim of valid secular purpose • Foster free expression • Solemnize sporting events • Promote good sportsmanship and student safety • Establish appropriate environment for competition • Kennedy did not rely on Lemon test in either of these opinions, but stressed that government may not “coerce anyone to support or participate in any religion or its exercise”

14. Current Status of Lemon Test • Never overruled by Court, although Scalia alleged in a concurring opinion in 1993 that a majority of his colleagues no longer held to it • It continues to be invoked, although a majority is willing to embrace an “accommodationist” approach within the framework of the Lemon test, i.e., the 3 prongs have become more pliable

15. Some schools have: • forbidden a student from reading the Bible in the school bus. • forbidden a student from praying before a meal in the cafeteria. • refused to accept a student history essay on the life of an historical figure because the essay described Jesus. • refused to allow a Bible study group to be organized by students while permitting political, philosophical, science, and other special interest groups. • refused to allow a “Jesus costume” in a class Halloween party

16. Equal Access Act of 1984 • If school receives federal money and allows non-curricular activities and club meetings (a limited public forum), then it is unlawful to deny student the right to meet for religious activities as long as • Participation is voluntary • Student-initiated and not sponsored by the school • Not disruptive and follows any “time, place, manner” regulations applicable to other groups • Must have equal access to all school facilities and assets made available to other groups

17. “Equal access” rulings have shown Court’s willingness to let free speech/association rights trump establishment clause concerns, i.e., state may not deny any benefit to a group (in relation to other groups) just because the group has a religious purpose

18. Test of the Access Laws • Board of Education of the Westside Community Schools v. Mergens (1990) • Christian Club denied access – ruled in favor of students • Lamb’s Chapel v. Center Moriches Union Free School District (1993) • Free speech cannot be arbitrarily censured because of content • The Good News Club v. Milford Central Schools (1999) • Schools must allow religious groups access to schools if they allow others access.