Freedom of Religion
The Establishment
Clause
&
The Free Exercise Clause
Freedom of Expression
Two guarantees of religious freedom:
Establishment
Clause
• Guards against
establishing a
mandated religion.
• In effect, freedom
from religion
Free Exercise
Clause
• Guards against the
government
interfering in the
exercise of any
religion.
• In effect, freedom
for religion.
Separation of Church and State
“A wall of separation”? Thomas Jefferson
Church and
government
are
constitution
ally
separated
from one
another.
However, the
government supports
churches and religion
in a variety of ways,
including tax
exemption.
Establishment Clause
• 3 Tests to determine Constitutionality of
laws:
– Lemon Test
– Endorsement Test
– Coercion Test
The Lemon Test
Based on Lemon v. Kurtzman (1971)
• Does the challenged law, or other
governmental action, have a bona fide
secular (non-religious) or civic purpose?
• Does the primary effect of the law or action
neither advance nor inhibit religion? In
other words, is it neutral?
• Does the law or action avoid excessive
entanglement of government with religion?
The Endorsement Test
Based on Lynch v. Donnelly (1984)
• Does the challenged law or government action
have the purpose or effect of endorsing or
disapproving religion in the eyes of the
• “Endorsement sends a message to nonadherents that they are outsiders, not full
members of the political community, and an
accompanying message to adherents that they
are insiders, favored members of the political
community. community members” ~O’Connor
Coercion Test
Based on Lee v. Weisman (1992)
• Does the law or practice have a psychological
coercive effect
• “The school district’s supervision and control
of a high school graduation ceremony places
subtle and indirect public and peer pressure on
attending students to stand as a group or
maintain respectful silence during the
invocation and benediction.” ~Kennedy
Religion and Education
Establishment Clause
Released Time—students can be released during school hours to
attend religious classes, as long as the classes do not take place in a
public facility
Prayers and the Bible—the use of prayer and the Bible in a religious
way is not allowed in school or at school functions
Student Religious Groups—are allowed to meet in the school on
the same basis as other student organizations
Evolution—a doctrine can not be preferred or prohibited according to its
relation to a religious theory
Aid to Parochial Schools—the Supreme Court uses the Lemon test
to determine what public funding of church-related schools is acceptable
Other Establishment Clause Cases
Seasonal Displays
• Lynch v. Donnelly, 1984— allowed the display of
a nativity scene along with other nonreligious
objects on public land
• Pittsburgh v. ACLU, 1989—allowed a multi-faith
holiday display
Chaplains
• Marsh v. Chamber, 1983—allowed chaplains to
open daily sessions of Congress and State
legislatures
Free Exercise Clause: Changing
Interpretations
• Wisconsin v. Yoder (1972): accommodation of
religious conduct is required except where a
state could show a compelling interest and no
less burdensome means to achieve that end
• Employment Division v. Smith (1990):
although religious exercise is generally
protected, this does not prevent the passage of
neutral laws that incidentally impact certain
religious practices
The Free Exercise Clause
Limited
Upheld
• Actions that violate social
• The Court has found many
duties or disrupt social
government actions to be
order are not covered under
counter to the Free Exercise
the Free Exercise Clause.
Clause.
– Examples:
– Bigamy
– Using poisonous snakes
during religious ceremonies
– Schoolchildren who have not
been vaccinated
– Examples:
– Amish children cannot be
forced to go to school after
grade 8
– Ministers are allowed to hold
elective office
– Unemployment benefits
cannot be denied to someone
who quit their job because of
religious beliefs
Did the Government Violate the 1st
Amendment
Does the case involve:
1) Establishment Clause
Or
2) Free Exercise Clause
Or
3) Both
Did the Government Violate the 1st
Amendment
• A state law disqualified members of the clergy
from holding certain public offices.
Exercise
Clause
Violation
Did the Government Violate the 1st
Amendment
• A high school student who has been deaf since birth asks his
school district to pay for a sign language interpreter to accompany
him to classes at a local religious school. A federal law requires
school districts to provide for the education of all children with
disabilities. The school district (which had provided him with an
interpreter while he attended the public school) refuses to pay.
Establishment
Clause
Non-Violation
Did the Government Violate the 1st
Amendment
• A state law authorizes a one-minute period of
silence in all public schools “for meditation or
voluntary prayer.”
Establishment
Clause
Violation
Did the Government Violate the 1st
Amendment
• A group of high school students applies to the school principal
to form a prayer club. The group agrees to follow the rules
required of student clubs, which meet twice a week at the
beginning of the school day during an activity period. A
faculty member volunteers to supervise the group. However,
the principle refuses the group’s request.
Establishment
Clause
Trick Question:
Violation of
Free Speech
Did the Government Violate the 1st
Amendment
• A state requires citizens applying for unemployment benefits
to accept appropriate jobs that are available. A citizen is
denied continued unemployment compensation because she
refuses to accept a job that requires her to work on the day she
celebrates her Sabbath.
Exercise Clause
Violation
Did the Government Violate the 1st
Amendment
• A state passes a law that it says is designed to give
parents greater freedom of choice when selecting
schools for their children. Parents may use a
government voucher to pay tuition at a private or
religiously affiliated schools.
Establishment
Clause
Non-Violation