How much do you remember about the
beginning of the year???

Who argued for a Bill of Rights to be added to the
Constitution?

What IS the Bill of Rights, and what is the purpose of
it?
Let’s start at the beginning…
with the First Amendment!

The First Amendment protects our freedom of:
Religion
 Speech
 Press
 Assembly
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Believe it or not, it was not until 1925 that the
Supreme Court had to begin the process of
applying the First Amendment to the activities
of state and local governments!
NO level of government would be able to deny
citizens the freedom to enjoy these basic
liberties of free speech, press, and religion.

Many people filed suits in federal courts
claiming that state and local government
activities infringed upon these freedoms.
Supreme Court had to define the meaning of
these words and figure out when specific
actions taken by these governments denied
citizens their fundamental liberties.
Before a Friday night high school football
game, a group of students leads the stadium
crowd in prayer. Is this constitutional? How
are decisions like this made?
Well….we need to look at the Constitution!
“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof... ”
Establishment Clause- “Congress shall make no
law respecting an establishment of religion…”
What does this actually mean?
 Separation of Church and State
 Prohibits establishment of a national religion
 Prohibits the preferential treatment of one
religion over another
“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof... ”
Free Exercise Clause- “Congress shall make no
law… prohibiting the free exercise thereof…”
What does this actually mean?

Why was this so important to our Founding
Fathers?
Our freedom of religion is the very first
sentence in the very first amendment in the
Bill of Rights.
WHY???
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
Just as I asked you to interpret the meaning of
the these words, the Supreme Court has had to
do the same thing!
They have developed tests to determine when
citizens are afforded protection by the
provision in the First Amendment.
Today our focus will be on the
Establishment Clause of the First Amendment
(Freedom of
Religion).

Established during Lemon v. Kurtzman (1971)
Consists of 3 Prongs
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Must have a secular (non-religious) legislative
purpose (Lay)
Must not result in an "excessive government
entanglement" with religion. (Easily Monitored)
Must not have the primary effect of either advancing
or inhibiting religion (Openly Neutral)
If the statute fails any of the three prongs, it has
violated the Establishment Clause.
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Student led prayer before football games
State funding to parochial schools
Mandated prayer in public schools
Requiring schools to teach creationism
alongside evolution
Displaying a city-funded Nativity scene
Displaying a Christmas tree in city hall
National Prayer Day
Case #
Name
Your Tally
(Yes/No)
Supreme Court
Ruling
1
Engel v. Vitale
Yes! (6-1)
2
Abington SD v.
Schempp
Yes! (8-1)
3
Everson v. Board
of Education
No! (4-5)
4
Stone v. Graham
Yes! (5-4)
5
Lee v. Weisman
Yes! (5-4)
6
Edwards v.
Aguillard
Yes! (7-2)
7
Van Orden v.
Perry
No! (4-5)
8
McCreary v.
ACLU
Yes! (5-4)
9
Allegheny v.
ACLU
Yes! (5-4)
Prayer in Congress
Free Exercise Clause- the government cannot
prohibit the free exercise of religion
What exactly does this mean?


Establishment Clause – deals with court cases
that involve government policies aiding
religion.
Free Exercise Clause – deals with court cases
that involve government policies burdening
religion.

Most do not discriminate against a particular
religion directly but impose a hardship when
applied to certain groups.

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The freedom of belief is an ABSOLUTE right in
the Bill of Rights.
BUT belief can involve action, which the
government can regulate

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Can’t use religion as a justification for a crime
Free exercise class DOES NOT protect actions
that are violation of social duties or actions that
are contrary to society’s interests.

Examples of what the Court has said:
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Religious belief in human sacrifice does not exempt
you from murder.
Children must be vaccinated against parents’
religious beliefs.
Can’t use poisonous snakes in ceremonies.
Can’t deny children medical help because of
religious beliefs.
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Does the law target a particular group or
individual?
Beliefs must be “sincerely held” – weigh
interest of the individual against the
government’s interest.
Individuals must prove that the government is
forcing them to violate their beliefs.

Violations of Free Exercise:
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Unemployment Benefits – Can’t deny these to
people who quit jobs (7th Day Adventists – no
Saturday work)
Compulsory Education – Amish beyond the 8th
grade
Use of peyote by American Indians in rituals

Non-Violations (Compelling State Interest)
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Conscientious Objectors – government interest in a
uniform draft outweighs anti-war belief
Social Security – can make Amish pay social security
even though they never take it.
Racial Discrimination – can deny tax exempt status
to private schools that practice racial discrimination
Military dress – can force men to remove yarmulke.

Lukumi Babalu Aye, Inc. v. Hialeah (1993)
The city of Hialeah, Florida enacted a series of ordinances to
ban animal sacrifice shortly after a Santeria church announced
plans to open in the city.
Court ruled that ordinances were unconstitutional because they
targeted the church specifically

Employment Division v. Smith (1990)
Members of a Native American Church were fired from their
jobs and were refused compensation for ingesting
peyote, a powerful entheogen, as part of a religious
ceremony.
Court ruled in favor of the state because the state laws against
drug use applied to all citizens, and were not directed at the
Native American religious practice
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Texas Polygamist Compound
While the government cannot prohibit the free
exercise of religion, people are not free to
worship in ways that violate laws protecting
the health, safety, or morals of the community.

Hmmm…what about these:
Public officials take an oath of office in the name of
God
 “In God We Trust” is on our money!
 Church property and contributions are exempt from
taxes
 Sessions of Congress begin with a prayer

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Should the Establishment Clause prohibit these
practices?
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Strict separationists oppose ANY commingling
of church and state functions
Accommodationists believe that at times
government should make allowances for the
role of religion in society

Otherwise, government would be hostile to religion
and risk violating the Free Exercise Clause!

Strict Separation: Stevens, Souter, Ginsberg,
Breyer
Prevents government from providing any aid to
religion whatsoever
 No tax money for religion
 Can give religion same services as anyone else (fire,
police, etc.)
 Can provide assistance that makes it easier for
people to practice
 The notion of a high “wall” of separation between
church and state
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Accommodation – Rehnquist, Scalia, Thomas
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Only prohibits the establishment of an official
government religion
Wouldn’t prohibit the government’s participation in
religious practices
OK for the state to participate in Christmas celebrations
as long as we don’t declare Christianity the official state
religion.
The purpose of the Establishment Clause is not to erase
religion – just can’t make it official. Thus, vouchers,
moments of silence, faith-based initiatives are OK.
Test: As long as government isn’t establishing an official
religion, it can aid religion in an unbiased way.

Government Neutrality – O’Conner, Kennedy,
Breyer
Government can support religion in general so long
as it does not give one religion preferential
treatment.
 “In God We Trust” is OK on coins; nondenominational prayer is OK.
 Government can’t be hostile to religion or violate the
Free Exercise Clause.
 Test: In between Strict and Accommodation –
Government should be neutral to religion – the
LEMON test
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Parochiad: funding to religious schools
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Bus transportation to parochial schools OK
Parochial teachers can NOT be paid with state funds
Federal grants CAN be used to erect buildings at
religiously affiliated colleges as long as the buildings
are not used for religious purposes.

School Prayer – most controversial!
Banned use of prayer written by NY State
 Overturned PA ruling requiring the reading of the
Lord’s Prayer
 Overturned KY law requiring copies of Ten
Commandments posted in public schools
 Moment of silence law in Alabama unconstitutional
 Prayer can’t be part of graduation ceremony
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Equal Access
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Forbids teacher involvement
If school allows use of building after hours for nonreligious purposes, then must for religious groups
but not for religious purposes
Evolution
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Cannot prohibit teaching of evolution
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Holiday Displays
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Can have a nativity scene if it includes secular
symbols as well like Santa and his reindeer
Pittsburgh – OK to have a Christmas Tree, Menorah,
and Kwanzaa display – because it is cultural
 BUT cannot have a nativity scene inside the County
Building without secular symbols because it implies
government endorsement of religion.
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Prayer in Legislation
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Allowed in Congress – historical roots of legislative
bodies and these are adults, not children
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Sunday Closing Laws
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Serve a secular purpose of creating a uniform day of
rest and relaxation
Tax Exemption
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Government’s “benevolent neutrality” towards
religion, not its official support.
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How many parts does the Lemon Test have?
Name one of the two 1st Amendment clauses
on freedom of religion
Which clause prohibits the establishment of a
national religion?
Which clause separates church and state?
What does “secular” mean?
Which clause allows people to practice religion
without restraint as long as they do not violate
state or federal laws?