Week 14: Religion and the Constitution

1
Week 14 Religion and the Constitution

• Free Exercise
• and the Establishment Clause

2
Role of Religion in US Government

• Why is it a topic of constitutional concern?
• Are we worried for government -- or religion?
• And what is religion?
• If a narrow definition prevails, few FE rights .
  . .
• If a broad definition prevails, big EC trouble .
  . .
• Seeger, 1965 in defining religion, consider
  whether it is based on a belief that is sincere
  and meaningful, paralleling that of an orthodox
  belief in God
• Ballard, 1944 that religious views are
  sincerely held is enough truth is beyond
  judicial scrutiny
• Thomas, 1981 it matters not the relation to
  orthodoxy

3
Free Exercise

• Constitutional Scrutiny of Legally Compelled
  Actions or Inactions That Would Violate Religious
  Beliefs

4
The Classic FE DichotomyOpinion versus Action

• Reynolds, 1878 (first FE case) government can
  control action, but not opinion one has an
  absolute constitutional freedom to believe, but
  not to act

5
The Smith Test, 1990 Current Test for Burdens on
Free Exercise

• 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
• Held no heightened FE scrutiny in such settings
  -- rational basis okay there is no
  constitutional mandate for govt. to respect
  religious practice
• IF another constitutional right were entwined
  (e.g., speech, press, schooling), higher scrutiny
  

6
Sherbert v. Verner (1963) and the Benefits Cases

• In the unemployment benefits context, no denial
  of benefits for work terminations traceable to
  religious conflicts unless a compelling state
  interest is shown
• Strict scrutiny applied to these neutral
  unemployment laws that burden religious practice
• Thomas (1981), Hobbie (1987), Frazee (1989) all
  also struck unemployment insurance denials
• Note that Boerne, 1997, struck the attempt to
  revive Sherbert more broadly as beyond Congress
  Section 5 powers . . .

7
Other Cases Striking Laws Based on Interference
with FE

• Hybrid cases like Yoder, 1972 (home-schooling)
• Targeting cases like Church of the Lukumi v.
  Hialeah, 1993 strict scrutiny for Santeria
  animal sacrifice (even though the ordinance is
  facially neutral and of general applicability)

8
But Most FE-based Challenges Fail

• Lee, 1982 (payment of taxes),
• Bob Jones, 1983 (tax exemption),
• Bowen, 1986 (SS)
• Goldman, 1986 (yarmulke in military)

9
The Establishment Clause

• Four Possible Judicial Approaches
• Strict Separation
• Neutrality
• Accommodation
• Mutual harmony

10
Larson v. Valente, 1982 Discrimination Among
Religions

• Religious organizations that collect more than 50
  percent of their funding were subjected to
  special reporting requirements by Minnesota
• Finding no close fit between the purposes and a
  compelling governmental interest, the Court
  struck the requirements

11
Lemon v. Kurtzman, 1971 EC Test for
Non-Discriminatory Laws

• Striking salary supplements to religious school
  teachers and establishing the famed Lemon Test
  for checking when a law violates the EC
• First, the statute must have a secular
  legislative purpose
• Second, its principal or primary effect must be
  one that neither advances nor inhibits religion
• Third, the statute must not foster an excessive
  entanglement with religion

12
A Key Hybrid Religious Speech

• Widmar, 1981 school facilities must be available
  for students wishing to use facilities for
  religious purposes
• Good News Club, 2001 true even in elementary
  school setting
• Rosenberger, 1995 Virginias refusal to fund
  religious mag at UVA by an otherwise qualified
  student group held unconstitutional
• Santa Fe, 2000 forcing student-led prayer choice
  on football visitors held unconstitutional

13
Religion in Public Schools

• Engel, 1962 no mandatory school prayer
• Abington, 1963 no reading from Bible
• Wallace, 1985 moment of silence for meditation
  or silent prayer unconstitutional

14
Lee v. Weisman, 1992 Prayers at Public School
Graduation Held Coercive
15
Michael Newdow Religious Speech The Pledge
Case
16
Government Activities and Religion

• Epperson, 1968 curricular decisions may not be
  dictated by religion, such as outlawing evolution
• Marsh, 1983 chaplains and prayer at public
  law-making bodies allowed in light of unique
  history
• Agostini, 1997 public teachers in private
  schools okay so long as no religious
  indoctrination occurs coollapses parts 2 and 3
  of Lemon
• Mitchell v. Helms, 2000 lending equipment okay
• Zelman, 2002 true private choice vouchers
  upheld where neutral on ultimate recipients of
  funding
• The Ten Commandments Cases from 2005 some okay,
  some not