F i r s t Amendment

Clauses Impacting Religion

What Does the Const i tu t i on Say?

● Article VI says that no “religious test” shall ever be required as a qualification for public office.

● What does this mean?– Cannot require office holder to be religious– Cannot prohibit clergy members from holding

office

So What About Th i s?

http://www.youtube.com/watch?v=m1Yff-_9MZs

What Does the 1s t Amendment Say?

● Establishment Clause– “Congress shall make no law respecting the

establishment of religion . . .”

● Free Exercise Clause– “or prohibiting the free exercise thereof

How to In te rp re t “Es tab l i shment”

● Strict Separation - “there should be a wall separating church and state.”

● Neutrality – state cannot confer benefit or impose burden on religion

● Accommodation/Equality – recognize importance of religion in society and accommodate its presence in government.

St r i c t Separa t ion : Eng le v . V i ta le

● What is claimed to violate the Establishment Clause?

● Where is the state action here?● How did the New York Court of Appeals

rule on the issue?● Why does the Supreme Court overrule the

lower court?● What are some of the rationale's used by

the Court to support its ruling?

Neut ra l i t y

● Government violates the Establishment Clause if it symbolically endorses a particular religion or if it generally endorses either religion or secularism.

● See Zelman v. Simmons-Harris

Accommodat ion

● Government violates clause ONLY if establishes a church, coerces religious participation or favors one religion over others.– See Lee v. Weisman for example of coercion.– See Marsh v. Chambers for example of

originalist interpretation of the Establishment Clause.

Theor ies App l ied : Re l ig ious D i sp lays

● County of Allegheny v. American Civil Liberties Union– Nativity scene standing alone placed in a

stairway of a county courthouse.– Christmas tree, menorah and sign saying that

the city salutes liberty during the holiday season placed in front of a government building.

App ly ing the Tes ts

● Strict Separation Approach (three justices)– Both displays are unconstitutional because

these were clearly religious symbols placed on government property. Violates wall!

● Accommodation Approach (four justices)– would have allowed both displays because

there was no coercion

App ly ing the Tes ts

● Neutrality Approach (two justices)– stand alone nativity scene was

unconstitutional because a reasonable observer seeing only a nativity scene inside a government building would conclude that the state was endorsing religion.

– Multi-symbol scene was okay because it contained both religious and secular displays.

● The Dearborn Example● The Candy Cane example

The Lemon Tes t

● Statute (action) must have a secular purpose

● primary effect must neither advance nor inhibit religion, AND

● must not create excessive government entanglement.– as set forth in the case Lemon v. Kurtzman

(1971)

Secu la r Pu rpose

● Look at the history of and rationale for the law or action.

● Examples– 10 Commandments in public schools– teaching “creation science” in public schools– moment of silence in public schools– Sunday closing laws

Ef fec t o f the Law

● Recently this has been merged with the “symbolic endorsement” test under the Neutrality approach.– The government's action must not be

perceived to symbolically endorse religion or a particular religion.

Excess ive En tang lement

● Some believe this is no longer required● Two recent cases have allowed:

– public school “special education” teachers to provide remedial education in religious schools

– government may give “instructional equipment” to religious schools as long as it is not used for religious purposes.

● Entanglement?

The B la ine Amendment

● Mo. Const. art. I, § 7: “That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such . . . “– an example of how states can create an even

higher wall between church and state.

Go ing a B i t Deeper

● Establishment Clause v. Free Speech● Generally these cases involve private

religious speech on government property or with government funds.

● Generally, courts deem restrictions of these sorts as content-based and impermissible under strict scrutiny test.

Not Speech Cases

● Prayer over school PA system● Prayer at school graduation

– split in circuits, although football prayer case may have decided this.

● Posting of Ten Commandments● Erection of government owned religious

displays

Free Exerc i se

● General Rule – government may not compel or punish religious beliefs– people may think and believe anything that

they want.– Freedom to believe (absolutely protected)– Freedom to act (not absolutely protected)

● When is Free Exercise Clause an issue?

What i s Re l ig ion?

● Test of belief - “whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one . . . .”– United States v. Seeger (1965)

● What about the person applying for naturalization who refuses to take an oath to “defend the country” because it violates her pacifist beliefs?

Except ion

● Free Exercise Clause cannot be used to challenge a neutral law of general applicability.

● Employment Division v. Smith (1990)

– no matter how much a law burdens religious practices, it is constitutional so long as it does not single out religious behavior for punishment and

– was not motivated by desire to interfere with religion.