Civil Liberties
Wednesday, March 24, 2010
1
Freedom of Religion
• “Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof. . . . “
• Two clauses
– Establishment
– Free Exercise
Wednesday, March 24, 2010
2
Establishment Clause
• Everson v. Board of Education (1947)
– Facts
– Issue
• Does a law reimbursing parochial school parents for
cost of transportation violate the establishment
clause?
– Holding: No
• Money going to parents not religious schools
Wednesday, March 24, 2010
3
Abington School District v.
Schempp (1963)
• Facts
– Bible reading: student could be excused with a note
– Shempp family Unitarian and refused to send note
• Issue
– Did PA law on allowing reading of Bible violate the
establishment clause
• Holding and Opinion
– Holding: Yes
Wednesday, March 24, 2010
4
Abington School District v.
Schempp (1963)
• Opinion
– Government must remain neutral
– Two Tests
– Application of two test to this case
• Purpose of this law: religious purpose
• This law promoted religion
• Dissent
– Remand: not enough evidence to rule
– Need religion to combat “religion of secularism”
– Can promote reading of Bible but must allow opt-out
Wednesday, March 24, 2010
5
Abington School District v.
Schempp (1963)
• Brennan’s concurring opinion
– Prayer/Bible reading to promote authority of teacher and
harmony/tolerance among students is wrong
– Permissible governmental use of religion
• Goldberg’s concurring opinion
– Meaning of first Amendment
• Gov’t not compel or engage in religious practices
• Government not favor on sect or side with religion or nonreligion
– Not all gov’t/religious relationships are
unconstitutional
• Encouraging student recitation of historic documents
Wednesday, March 24, 2010
6
Lemon v. Kurtzman (1971)
• Facts
– Laws providing state support to religious schools in RI
and PA
– Alton Lemon brought suit against State Superintendant
David Kurtzman to stop payment
• Issue
– Did PA law violate establishment clause by permitting
money to go to parochial schools for teacher salaries?
• Holding
– Yes
Wednesday, March 24, 2010
7
Lemon v. Kurtzman (1971)
• Opinion
– Everson: transportation on the line-this is over the line
– 1st Amendment prohibits establishment of Church and
law promoting religion
– Three tests for laws
• Secular purpose
• Does not advance or prohibit religion
• No excessive entanglement
– Did these laws have a secular purpose?
• Unclear: statutes claim to have secular purpose
Wednesday, March 24, 2010
8
Lemon v. Kurtzman (1971)
• Opinion (continued)
– Was there excessive entanglement?
• Yes
– State entangled in essentially religious schools
– Too much state surveillance over use of funds
– Concern about progression argument
• Progression: once state support religion, it deepens
• Concern here: government programs accrete leading to
excessive entanglement
Wednesday, March 24, 2010
9
Van Orden v. Perry (2005)
• Facts of the case
• Constitutional Issue
• Finding
Wednesday, March 24, 2010
10
Van Orden v. Perry (2005)
• Reasoning
– Problem: balancing respect for
tradition and gov’t endangering
religion
– Lemon not relevant
– Long history of allowing religion
in public sphere
• Here: 10 Commandments are
religious; passive effect
– Limits
• Display has a religious purpose
• Where display may affect children
Wednesday, March 24, 2010
11
Is the following State Law
Constitutional?
(1) It shall be the duty of the superintendent of
public instruction, provided sufficient funds
are available as provided in subsection (3) of
this Section, to ensure that a durable,
permanent copy of the Ten Commandments
shall be displayed on a wall in each public
elementary and secondary school classroom in
the Commonwealth. The copy shall be sixteen
(16) inches wide by twenty (20) inches high.
(2) In small print below the last commandment
shall appear a notation concerning the purpose
of the display, as follows: "The secular
application of the Ten Commandments is
clearly seen in its adoption as the fundamental
legal code of Western Civilization and the
Common Law of the United States."
(3) The copies required by this Act shall be
purchased with funds made available through
voluntary contributions made to the state
treasurer for the purposes of this Act.
Wednesday, March 24, 2010
12
Newdow v. U.S. Congress (2002)
• Facts
– Newdow an atheist; daughter goes to Elk Grove USD
– Teacher begins with Pledge
– Daughter is injured when teacher leads pledge which
says that there is a God and nation is “under God”
• Issue
– Is the recitation of the Pledge in public schools a
violation of the establishment clause
Wednesday, March 24, 2010
13
Newdow v. U.S. Congress (2002)
• Holding
– Yes
– CA law coerces a religious act by citing Pledge and is
unconstitutional
• Opinion
– Court has developed three tests
• Court will use all three: violation of any prong invalidates
Pledge
– “Under God” is a profession of monotheism
• Children swear allegiance to unity, justice and God
Wednesday, March 24, 2010
14
Newdow v. U.S. Congress (2002)
• Opinion (continued)
– Coercion
• Coercive effect is particularly strong in lower grades
• Intent is religious/coercive
– Other SC decisions do not address the problem:
• Schools coercing students to recite pledge or stand mute
• Engel: OK to recite Declaration--not asking children to make
a profession of faith
• Sherman
– If student can’t be required to recite Pledge, and if recitation is
coercion, then Pledge is unconstitutional
– This case did not apply a religious test
Wednesday, March 24, 2010
15
Newdow v. U.S. Congress (2002)
• Dissent
– Establishment clause requires neutrality: government
will not discriminate for or against religion
• If Pledge did discriminate: it is far from establishing a
theocracy
– Court has recognized how insignificant religious statements are
– Small violations (de minimus) of the Constitution are not cause to
declare a public act unconstitutional
• Under God does not establish religion: except for those who
want to drive all religion out of public square
– Barnette: SC did not say that Pledge could not be said in class; only
that a person could not be coerced to say it
• This will lead to expulsion of all references to God from
pubic square
Wednesday, March 24, 2010
16
Santa Fe Independent School
District v. Doe (2000)
Wednesday, March 24, 2010
17
Santa Fe Independent School
District v. Doe (2000)
Wednesday, March 24, 2010
18
Freedom of Religion
The Free Exercise Clause
• “Congress shall make no law . . .
prohibiting the free exercise [of Religion] “
• Early Interpretations
– Reynolds v. United States (1879)
• Separation of religious belief and action
– Cantwell v. Connecticut (1940)
• Cantwell Test
– Law serves secular goal
– Law must be neutral toward religion
Wednesday, March 24, 2010
19
The Free Exercise Clause
• Early Interpretations
– Braunfeld v. Brown (1961)
• Facts
• Issue
• Holding
• Opinion
– Braunfeld Test
» Law must be secular
» No alternative to limiting religious exercise
Wednesday, March 24, 2010
20
The Free Exercise Clause
• Sherbert v. Verner (1963)
– Facts
– Issue
– Holding
Wednesday, March 24, 2010
21
The Free Exercise Clause
• Sherbert v. Verner (1963)
– Sherbert Test
• Government must have a compelling interest
• Use least restrictive means
– Opinion
• Sherbert Test
– Compelling Interest
– Least restrictive/burdensome means
• Is disqualification from benefits burdensome?
• Did the state have a compelling state interest?
Wednesday, March 24, 2010
22
The Free Exercise Clause
• Sherbert v. Verner (1963)
– Concurring Opinion
• Douglas: violates individual conscience
– Dissenting Opinion
• Over turns Braunfeld
• State carving out an exception for religious belief
but not secular beliefs
Wednesday, March 24, 2010
23
The Free Exercise Clause
• Employment Division, Department of Human
Resources of Oregon v. Smith (1990)
– Facts
– Issue
• Does the Oregon law outlawing the use of peyote violate the
free exercise clause
– Holding
• No
Wednesday, March 24, 2010
24
The Free Exercise Clause
• Employment Division, Department of Human
Resources of Oregon v. Smith (1990)
– Introduction
• Distinguish between belief and action
– Some religious acts cannot be regulated
• Religious belief does not excuse compliance with valid and
religiously neutral law
• Individual religious action is protected when tied to other
freedom
– Throws out Sherbert test
• Test: government actions substantially burdening religious
practice must be justified by a compelling government interest
Wednesday, March 24, 2010
25
The Free Exercise Clause
• Employment Division, Department of
Human Resources of Oregon v. Smith
(1990)
– Throws out Sherbert test
• First, only used in unemployment compensation
• Second, if applied broadly this would lead to
anarchy
– Makes individual a law unto himself
Wednesday, March 24, 2010
26
The Free Exercise Clause
• Employment Division, Department of
Human Resources of Oregon v. Smith
(1990)
– Smith Test
• Law must be valid
• Neutral toward religion
• General applicability
Wednesday, March 24, 2010
27
The Free Exercise Clause
• Employment Division, Department of Human
Resources of Oregon v. Smith (1990)
– Concurring Opinion
• Problem with “generally applicable”
– 1st Amendment does not distinguish general/specific laws
» General laws CAN prohibit justifiable religious expression
» Government compelling interest is necessary
• Stare decisis overlooked
– Cantwell, Braufeld, and Sherbert overturned
• Return to 1st amendment precedents
– New Test?
• Minority religions are put at a disadvantage
Wednesday, March 24, 2010
28
The Free Exercise Clause
• Employment Division, Department of
Human Resources of Oregon v. Smith
(1990)
– Dissent
• Majority rejects stare decisis
• Reasonable to apply Sherbert
– No evidence of compelling government interest
– No evidence that peyote use by religious members
threatens society
Wednesday, March 24, 2010
29
Exercise
The Institutionalized Persons Act of 2000 (IPA)
provides in part: "No government shall impose a
substantial burden (restriction) on the religious
exercise of a person residing in or confined to a
prison," unless the restriction furthers "a
compelling governmental interest," and does so by
"the least restrictive means." Petitioners, current
and former inmates of Ohio state institutions, allege
that respondent prison officials violated the Act by
failing to accommodate petitioners' exercise of their
"non-mainstream" religions by denying them a time
to worship. The state moved to dismiss that claim,
arguing, among other things, that the Act
improperly advances religion in violation of the First
Amendment's Establishment Clause. Furthermore
that IPA permits safety and security--undisputedly
compelling state interests--to outweigh an inmate's
claim to a religious accommodation.
Wednesday, March 24, 2010
30
Religious Freedom Restoration Act
• Congress responded with the RFRA
Wednesday, March 24, 2010
31
Gonzales v. UDV
• Facts of the case
• Issue
– Whether the RFRA requires the government to
permit the use of hoasca where Congress has
found it has a high potential for abuse, it is
unsafe under medical supervision, and its
importation and distribution would violate an
international treaty.
Wednesday, March 24, 2010
32
Gonzales v. UDV
• Legislation/Treaties at issue
– Controlled Substance Act
• Para. 844: can’t possess Schedule I drug with intent
to dispense
• Para. 812: one schedule I drug is DMT
• Para. 823: cannot distribute or dispense DMT except
as part of a controlled research project or limited
industrial purposes
Wednesday, March 24, 2010
33
Gonzales v. UDV
• Legislation/Treaties at issue
– U.N. Convention on Psychotrophic Substances
(1971)
• Purpose: prevent and combat abuse of drugs and their
trafficking
• Art. 7: Nations must prohibit use of Schedule I drugs
except for scientific and medical purposes
• Art. 32: provision for reservations (DMT not on list)
– Religious Freedom Restoration Act
Wednesday, March 24, 2010
34
Gonzales v. UDV
• Major Problem to Consider
– What standard will the justices use in deciding this
case?
• Sherbert and the RFRA?
• Health Department v. Smith?
– How must appellant and appellee taylor their briefs to
meet the above problem?
Wednesday, March 24, 2010
35
The End
Wednesday, March 24, 2010
36