Someone recently bought our

students are currently browsing our notes.


The Religion Clauses Free Exercise Establishment Outline

Law Outlines > Constitutional Law Outlines

This is an extract of our The Religion Clauses Free Exercise Establishment document, which we sell as part of our Constitutional Law Outlines collection written by the top tier of Oklahoma City University School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Constitutional Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

The Religion Clauses: Free Exercise & Establishment Section 1. Overview of the Religion Clauses A. History of the Religion Clauses

1. The Dominant View: voluntarism & separatism a. Voluntarism: The advancement of a church would come only from the voluntary support of its followers & not from political support of the state

b. Separatism: Both religion & government function best if each remains independent of each other

2. A Minority View: Nonpreferentialism As long as aid to all religions is equal, OK- just don't prefer one over the other

3. Relevance The Court gave up trying to decipher framer's intent in Abbington School Dist., where the court struck down the practice of Bible-reading in public schools

B. The Incorporation of the Religion Clauses against the States Beginning w/ Everson, the Court has assumed that the Establishment Clause was incorporated into the 14th Amend & is applicable to the states.

C. Reconciling the Religion Clause

(1)Free Exercise compels some accommodation of religion (2)Establishment forbids other accommodations of religion (3)Between these 2 areas lies a broad zone where religious accommodation by gov. is neither forbidden nor required a. J. Harlan, dissenting in Sherbert v. Verner: There is, I believe, enough flexibility in the Constitution to permit a legislative judgment accommodating an umployment compensation law to the exercise of religious beliefs



Permissible Accommodation

Legislature may accommodate religion if it wishes, but it doesn't have to under the constitution

(4)Definition of Religion-BROAD Doesn't require a belief in a supreme being

(1)Seeger: The test of belief in relation to a Supreme Being is whether a given believe that is sincere & meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption

(2)Welsch: Based on average persons religious principles (a) Deeply held beliefs (b) Moral, ethical, philosophical, or religious principles

(3)Gilette: Must morally oppose all wars to be exempt

(5)Limits to Judicial Inquiry into Religious Content

1. Jury cannot determine the truth or veracity of parties' religious doctrines or beliefs

2. Jury can determine whether D sincerely believed their representations

3. J. Jackson, Dissent: How can a jury find that D's representations were false w/o inquiring into the truth or falsity of the underlying beliefs?

4. Courts may apply neutral principles of law in adjudicating church controversies, but the religion clauses preclude determining matters at the very core of a religion-the interpretation of particular church doctrines & the importance of those doctrines to religion.

Section 2. The Free Exercise of Religion 3 General Areas (1)Laws Targeting Particular Religions (Hialeah)=SS (2)Unemployment Compensation (Sherbert)=SS (3)Laws of General Applicability (Smith)=No Free Exercise Challenge

A. Laws Discriminating (Targeting) Against Religion

1. Hialeah Court unanimously invalidadted a city ordinance prohibiting the ritual slaughter of animals, finding that the law, while apparently neutral on its face, actually was targeted against practitioners of the Santeria Faith & so violated the Free Exercise Clause.

a. Court will do a motive review here

b. Look behind the Law for true purpose

c. At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons

d. If the object of the law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral: and it is invalid UNLESS it is justified by a compelling interest and is NT to advance that interest (SS)

e. Here, ordinances exclude almost all killings of animals except for religious sacrifices but exempts Kosher slaughter


Where gov. restricts only conduct protected by 1 st Amend and fails to enact feasible measures to restrict other conduct producing substantial or alleged harm of the same sort, the interest given in justification of the restriction is NOT Compelling

2. Cannot require belief in God for public officials (Torcasco)

3. Cannot disqualify clergy from holding public office (McDaniel)

4. Locke v. Davey Perfect example of J. Harlan's Dissent. Court Held that exclusion of scholarship $ from being spent at an institution where student is pursuing a degree in theology didn't violate FEC. a. No sanctions-State chose not to fund b. OK for a state to prohibit funding of religion c. Not suspect, no animus

B. Neutral Laws Adversely Affecting Religion

The freedom to believe is absolute, but the freedom to act is not

1. Reynolds Ct upheld application of fed law making bigamy a crime to Mormons

2. Prince Upheld law making it a crime for a kid under 18 to sell papers in public places as applied to Jehovah's witness kid

3. Braunfield Ct. rejected a FE challenge to a Penn. Sunday Closing Law OK if only an indirect burden on exercise of religion

C. Unemployment Compensation

1. Sherbert v. Verner Ct held that a state must pay unemployment benefits to a Saturday sabbatarian who was fired by employer because she wouldn't work on Saturday, the Sabbath day for her church a. RULE: if law burdens the free exercise of religion, then SS b. Limited Holding: A state may not constitutionally apply the eligibility provisions so as to constrain a worker to abandon his religious convictions respecting the day of rest.

2. Thomas: Court struck down Indiana's denial of unemployment comp to a Jehovah who quit his job in a munitions factory because of his religious objections to war.

3. Court also upholds unemployment compensation claims of an employee whose religious beliefs had changed during her course of employment

D. Amish

1. Compulsory Education Laws (Under Sherbert) Wisconsin v. Yoder Court reversed conviction of Amish man who refused to send 15 yr old to school after she had finished 8th grade.

a. Amish object to h.s. education because of fundamental belief that salvation requires life in a church community separate & apart from the world & wordly influence.

2. Refusal to pay SS taxes for employees U.S. v. Lee Strict Scrutiny applies cause substantial burden on free exercise: But ct upheld the SS Tax noting that "the State may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding gov. interest Tax system couldn't function if denominations allowed challenge it cause tax payments were spent in manner that violates religious beliefs

Free Exercises broken down into 3 areas:

If Substantial burden then gov. need compelling interest (Sherbert but only unemployment comp or if law targets a particular religion) Smith- deference, no heightened scrutiny and this is where most cases fall.

E. Federal Government-Military & Beyond

1. Military Goldman v. Weinberger Military case: no religious exemption for man wanting to wear a hat in violation of military uniform

Since was the military-gave great deference to need for uniformity & so didn't really search for a compelling interest Didn't use precedent

2. Food Stamps Bowen v. Roy Rejected free exercise challenge to requirement for needed a SS# to get food stamps & welfare benefits (makes no sense says Cantrell)

Ct. distinguished claims w/r/t personal conduct vs. gov conduct Gov doesn't have to itself behave in ways that the individual believes will further their spiritual development

3. Forest Service Lyng v. NW Indian Cemetary Protective Ass'n O'Connor tried stick to Sherbert SS & Substantial Burden test but then threw in coercion & said didn't exist

Before Smith but after Yoder & Sherbert couldn't predict what was gonna happen

4. Courts Methodology in the Era btwn Sherbert & Smith Court used 3 techniques to distinguish Sherbert (1) Overriding gov. interest in uniformity, for example in the administration of tax laws. (2) FE interests were attenuated & gov. interest paramount in specialized environments such as prisons & military (3) Applied narrow definition of what constitutes a burden on religious practice, rejecting FE claims seeking to alter internal gov. operations such as the use of SSN & development of federal property

Buy the full version of these notes or essay plans and more in our Constitutional Law Outlines.