Free Exercise and the Establishment Clause: The Latent Tension

1
Free Exercise and the Establishment Clause The
Latent Tension

• Constitutional Scrutiny of Government Action
  Hindering Religious Practice, and of Governmental
  Action Aiding Particular Religious Practice to
  the Point of Official Endorsement

2
The Smith Test

• Testing neutral, generally applicable laws that
  incidentally compel actions or inactions
  violating religious beliefs, where no hybrid
  concern of speech or parental right is involved
• No heightened First Amendment scrutiny (rational
  basis test enough)
• Note the aftermath, first the RFRA . . .
• Then Boerne, held, an improper use of the Section
  5 power and a SOP issue as well

3
Sherbert v. Verner and the Benefits Cases

• In the unemployment benefits context, no denial
  of benefits for work terminations of religious
  origin unless a compelling state interest is
  shown

4
The Few Situations In Which Free Exercise is
Infringed to such a Degree that a Law is Struck

• Hybrid cases like Yoder (Amish exemption for
  compulsory schooling SDP parental rights issue
  enmeshed with exercise issue)
• EP Targeting cases like Church of the Lukumi v.
  Hialeah strict scrutiny here
• Free Speech cases (like Watchtower Bible)
• Most cases that raise free exercise concerns
  fail Lee (payment of taxes), Bob Jones (tax
  exemption), Bowen (SS), Goldman (yarmulke in
  military)

5
The More Typical FE Case

• Locke Washingtons exclusion of scholarships for
  devotional theology held not to violate the FE
  clause

6
Establishment

• Allegheny an example of how strict separation is
  one theory of the Establishment Clause,
  neutrality another, and accommodation a third . .
  .
• Larson striking a law discriminating on
  religious organizations based on degree of
  contributions held violative
• Lemon THE test

7
The Lemon Test

• Governments purpose to advance religion?
• Principal effect is aid or hinder religion?
• Excessive entanglement with religion?