RS 361E
Church & State Legal Perspective
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I. Legal Tests Used to Interpret First Amendment’s Religion Clause
1. Belief v. Action. Reynolds v. United States, 98 U.S. 145 (1878)
In a 6–3 decision, the Court upheld a federal law prohibiting multiple marriages in federal
territories as well as the conviction of Mormon George Reynolds for multiple marriages.
"Freedom of religion means freedom to hold an opinion or belief, but not to take action in
violation of social duties or subversive to good order," Chief Justice Waite wrote. The Court
found that while laws cannot interfere with religious belief and opinions, laws can be made to
regulate some religious practices, e.g., human sacrifices, and the Hindu practice of suttee, in
which the widow of a man would be burned alive on the funeral pyre of her dead husband. The
Court stated that to rule otherwise, "would be to make the professed doctrines of religious belief
superior to the law of the land, and in effect permit every citizen to become a law unto himself.
Government would exist only in name under such circumstances."
2. Clear and Present Danger. Cantwell v. State of Connecticut, 310 U.S. 296 (1940)
Unanimous Supreme Court overturned conviction of Jehovah's witnesses who were preaching
anti-Catholic message based on breach of peace and lack of a permit. The conviction violated
their rights to free exercise and freedom of speech under the First Amendment. Court held that
free exercise of religion is one of the “liberties” protected by the due process clause of the 14th
Amendment (and thus applied to the states). The freedom to believe is absolute but the freedom
to act is not absolute. While the maintenance of public order was a valid state interest, the
Cantwell’s expression did not pose a “clear and present danger” by inciting the commission of
criminal conduct or entailing threat of “bodily harm.” The Cantwell’s message, while offensive
to many, was protected religious speech.
3. Sherbert Test. Sherbert v. Verner, 374 U.S. 398 (1963)
Adeil Sherbert, a Seventh-day Adventist, was denied unemployment compensation after being
fired from his job as a textile-mill operator because he refused to work on Saturdays (after
employer changed work schedule). Supreme Court majority ruled that this denial violated his
free exercise rights because it imposed a substantial burden on his sincere religious belief
without a compelling state interest. Court formulated the following test:
A. Does individual have a sincere religious belief?
B. Does government action impose substantial burden on individual’s ability to act on
belief?
C. Is government acting to advance a compelling state interest?
D. Has government pursued such an interest in the manner least burdensome to
religion?
This test was employed to prevent the state from forcing Amish to attend high school but not to
prohibit a Jewish military chaplain from wearing a yarmulke. The test was all but eliminated in
Employment Division v. Smith, 494 U.S. 872 (1990) until it was restored by Congressional
legislation in the Religious Freedom Restoration Act (RFRA) of 1990. The Supreme Court then
limited the application of RFRA to federal laws only in City of Boerne v. Flores, 521 U.S. 507
(1997) and Gonzales v. UDV, 546 U.S. ___ (2006)
4.
Lemon Test.
In Lemon v. Kurtzman, 403 U.S. 602 (1971), Rhode Island and
Pennsylvania statutes supplemented the salaries of teachers in religiously based, private
schools for teaching secular subjects were found unconstitutional. The Supreme Court
identified three “tests” for determining whether a statute violates the establishment clause:
RS 361E
Church & State Legal Perspective
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A. the statute must have a secular legislative purpose;
B. its principal or primary effect must be one that neither advances nor inhibits
religion; and
C. the statute must not foster ‘an excessive government entanglement with religion.’
A tool for remembering this test: “PEE” Purpose, Effect, Entanglement. The Lemon Test has
largely dominated anti-establishment jurisprudence for the last three decades. However, it is
increasingly being challenged by at least two other anti-establishment tests.
5. Endorsement Test. In her concurring opinion in Lynch v. Donnelly, 465 U.S. 668 (1984)
Justice Sandra Day O’Connor proposed the following test: “Does the challenged law of
government action have the effect of endorsing religion or disapproving of it in the eyes of
the community members?” “Does it send a message to nonadherents that they are outsiders
rather than full members of the political community?
6. Coercion Test. In Lee v. Weisman, 505 U.S. 577 (1992) Justice Anthony Kennedy proposed
a “coercion” test: “Does the challenged law or government action coerce anyone to support
or participate in religion or its exercise?” He emphasized the psychological effect of prayers
at a middle or high school graduation.
II. Hammond’s Perspective
Origins of First Amendment: germ of the idea of a protected conscience was in earlier versions of
the First Amendment. This gives insight into its evolution and current use.
What constitutes a religious belief?
Justices seek to avoid the business of judging the content of religion (excessive entanglement by the
courts) and this contributes to
a. movement from content of conviction to fact of conviction or whether sincerely held
b. expansion of what is religious: deeply and sincerely held moral beliefs equals the
functional, legal equivalent of religious beliefs
c. movement toward protecting private, individual exercise of religion more than public,
communal exercise of religion and to view a preference for religious behavior or thought
as similar to establishing a state religion; rationale: allowing religiously motivated
exercises in public institutions and contexts is a virtual establishment of a religion
Hammond’s hypothesis about the future: If the concept of free exercise is broadened to mean “free
exercise of conscience,” then even cases outside the church-state realm can be affected by the
notion of religious liberty. This will be brought about the due process clause of the 14th
Amendment.
Questions.
1. What is meant by the dual nature of First Amendment’s religion clauses?
2. What does Hammond mean by Accommodationist? Separationist?
3. According to Hammond, why must the desire for non-preferentialism include those with
strong convictions or conscience? Do you agree? Why or why not?
4. According to Hammond, what will be the impact for future experiences of religious liberty?
How will it shape culture wars about issues such as abortion, euthanasia, and gay marriage?
How will the “soul of America” be formed? In the courts? Elsewhere? Do you agree?
Why or why not?