Freedom of Religion
• Establishment Clause
1. Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof;
2. Federalizing influence of Amendment 14 (Gitlow v. New York).
3. The basic meaning of the establishment clause is that
government may not establish an official religion.
• “Accommodationist view”: Government should bend a bit and
allow a certain degree of church/state blending.
• “Separationist view:” Government should allow virtually no
blending of church and state. There should be a “wall of
separation” between the two.
• “Endorsement view”: forbids governmental practices that
endorse religion.
• “Non-preferentialist view”: The Constitution prohibits
favoritism towards a particular religion, but allows
governmental support for religion in general.
• Lemon v. Kurtzman: established a 3-part test to determine if a
statute or practice violates the establishment clause: If any of
the following are present, the statute or practice is
unconstitutional.
• a.
• b.
Non-secular (religious) purpose.
Advances or inhibits religion.
• c.
Excessive entanglement with religion.
• Key Rulings:
• 1. Everson v. Board, 1947: applied establishment clause to
the states
• 2. Engle v. Vitale, 1962: no state-sponsored, recited prayer
in public school.
• 3. Abbington v. Schempp, 1963: no devotional Bible-reading
in public school.
• 4. State laws that require the teaching of creation science are
unconstitutional.
• 5. Epperson v. Arkansas, 1968: state laws may not prohibit
the teaching of evolution in public school.
• 6. State laws that require the posting of the 10
Commandments in public school are unconstitutional.
• 7. Release time for students is constitutional.
• 8. Tax exemptions for churches are constitutional as they
are for other nonprofit institutions.
• 9. Christmas displays in town squares are constitutional as
long as they include some secular content.
• 10. Permissible forms of state aid to parochial (private
religious) schools: textbooks, lunches, bus transportation.
• 11 Impermissible forms of state aid to parochial schools:
field trips, teacher salaries, counseling services, remedial
instruction.
• Free Exercise Clause
• 1. Provides freedom of worship.
• 2. Federalizing influence of Amendment 14 (Gitlow v. New
York).
• 3. Problem of contradiction between the establishment
clause and the free exercise clause.
• 4. Distinction between belief and practice: the former is
always allowed, but the latter is not always allowed. Freedom
of worship is a relative, not absolute, right. Balancing test
once again applies.
• 5. Standard used by court’s for judging whether or not
religious expression is constitutional: (next slide)
• A. Old standard: government could not deny religious expression
unless there was a compelling purpose for it to do so. Burden of
proof was on the states. This made it difficult for states to restrain
religion.
• B. That standard was reversed by Oregon v. Smith, 1990:
government no longer needed a compelling purpose to deny
religious expression. Burden of proof was now on religion. The only
laws that would be struck down would be those that were intended
to stifle a particular religion. This made it easier for states to
restrain religion.
• C. A strange congressional coalition led by Orrin Hatch and Ted
Kennedy sponsored the Religious Freedom Restoration Act, 1993:
restored the old compelling purpose standard, and burden of proof
was once again on states. This made it difficult for states to restrain
religion.
• D. In City of Boerne v. Flores, 1997, the Supreme Court struck
down the Religious Freedom Restoration Act and restored the
standard used in Oregon v. Smith. Burden of proof was once again
on the religion. This made it easier for states to restrain religion.
• 6. Religious practices that have been restricted:
• a.
• b.
Polygamy (Reynolds v. U.S.).
Not paying Social Security taxes.
• 7. Religious practices that have been permitted:
• a. Not saluting the flag in public school
• b. Covering up the New Hampshire state motto (“Live Free or Die”)
on an automobile license plate.
• c. Not sending children to school past the 8th grade.
• d. Sacrificing of animals for religious purposes. (Church of Lukumi
Babalu Aye v. Hialeah, 1993)
• Article 6 bans religious tests and oaths as a qualification to
hold public office.