The Religion Clauses: Free Exercise & Establishment

Section 1. Overview of the Religion Clauses

History of the Religion Clauses

The Dominant View: voluntarism & separatism

Voluntarism:

The advancement of a church would come only from the voluntary support of its followers & not from political support of the state

Separatism:

Both religion & government function best if each remains independent of each other

A Minority View: Nonpreferentialism

As long as aid to all religions is equal, OK- just don’t prefer one over the other

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

The Incorporation of the Religion Clauses against the States

Beginning w/ Everson, the Court has assumed that the Establishment Clause was incorporated into the 14^th Amend & is applicable to the states.

Reconciling the Religion Clause

Free Exercise compels some accommodation of religion

Establishment forbids other accommodations of religion

Between these 2 areas lies a broad zone where religious accommodation by gov. is neither forbidden nor required

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

NOT_________| |__________MUST

Permissible Accommodation

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

Definition of Religion-BROAD

Doesn’t require a belief in a supreme being

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

Welsch:

Based on average persons religious principles

Deeply held beliefs

Moral, ethical, philosophical, or religious principles

Gilette:

Must morally oppose all wars to be exempt

Limits to Judicial Inquiry into Religious Content

Jury cannot determine the truth or veracity of parties’ religious doctrines or beliefs

Jury can determine whether D sincerely believed their representations

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?

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

Laws Targeting Particular Religions (Hialeah)=SS

Unemployment Compensation (Sherbert)=SS

Laws of General Applicability (Smith)=No Free Exercise Challenge

Laws Discriminating (Targeting) Against Religion

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.

Court will do a motive review here

Look behind the Law for true purpose

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

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)

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

Cannot require belief in God for public officials (Torcasco)

Cannot disqualify clergy from holding public office (McDaniel)

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.

No sanctions-State chose not to fund

OK for a state to prohibit funding of religion

Not suspect, no animus

Neutral Laws Adversely Affecting Religion

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

Reynolds

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

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

Braunfield

Ct. rejected a FE challenge to a Penn. Sunday Closing Law

OK if only an indirect burden on exercise of religion

Unemployment Compensation

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

RULE: if law burdens the free exercise of religion, then SS

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.

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.

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

Amish

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 8^th grade.

Amish object to h.s. education because of fundamental belief...

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