Chapter 5
st
1
Amendment
Religion Clauses
Religion & the 1st Amendment
“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof . . .”
4-3
Religion & the 1st Amendment
Free Exercise Issues

Freedom to believe is the closest thing to an absolute
right
Warren Court’s move from a theistic to philosophical definition of
“religion”
Four components of “religion”

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
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Belief in God or equivalent
Acceptance of an external moral code
Associational/community dimension – “church”
Demonstrated sincerity of belief
Limits on free exercise of religion
Polygamy
Withholding medical services/inoculations
Poisonous snake handling
Drug use (peyote cult) in Native Am. Church (legalized by Texas
in 1970 and by U.S. in 1995)
Time, place, manner restrictions on religious solicitations
Compulsory patriotic rituals – W.VA v Barnett (1943)
Compulsory school attendance – WI v Yoder (1972)
4-3b
Religion & the 1st Amendment
Free Exercise Issues

Sherbert v Verner (1963) – laws or policies negatively
impacting religious freedom had to pass the “strict
scrutiny” standard
there is a compelling state interest
the “least restrictive means” possible has been used
to accomplish that interest

Unemployment Division of Oregon v Smith (1990)
strict scrutiny abandoned in favor of “general
applicability” standard

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4-3b
If law applies equally to all . . .
Incidental infringements on religious exercise is tolerable
Only laws which appear to specifically target a religious
practice fall afoul of 1st Am; can only be justified by meeting
strict scrutiny standards
Employment Div. (of Oregon) v Smith, 1990
“Smith Test”
NEUTRAL
NO
YES
GENERAL APPLICABILITY
VALID
LAW
YES
NO
Strict Scrutiny:
SHERBERT
“compelling state interest” SHERBERT
TEST
standard
(Sherbert v Verner)
1963
Religion & the 1st Amendment
Free Exercise Issues


Church of the Lukumi
Babalu Aye v City of
Hialeah (1993)
Even under “Smith test”
the law fails
Law clearly targets a
religious practice . . .
killing animals for
purpose other than food
consumption
Legitimate police powers
could have been achieved
far short of the total ban
on animal sacrifice.
4-3b
Reaction to Smith Test
Passage of the Religious Freedom Restoration Act of 1993 –
imposed strict scrutiny standard of Sherbert ruling on every
level of gov’t. when its actions negatively impact religious
freedoms
City of Boerne v Flores, 1997
 Texts invariably say Court struck down the RFRA as a
violation of separation of powers principle (Congress
imposing a standard of constitutional interpretation on Court)
 Actually only invalidated the portion of the act which bound
this standard on the states/localities
 Gonzales v. O Centro Espirita Beneficenteuniao do Vegetal,
2006
Invokes RFRA as binding on U.S. gov’t action, i.e., Sherbert rule
Ban on import of hallucinogenic tea for religious purposes under the
Controlled Substances Act overturned
The Establishment Clause
The Court’s evolving interpretation of the clause

Prohibits establishing an “official church” or
preferring one church/denomination over others for
benefits and privileges – “nonpreferentialism”
allowing for “accommodation”:
position held by Scalia, Thomas (and Rhenquist);
presumed to be position of Roberts and Alito;
position of Court prior to Everson case in 1947

4-3
Everson case introduced “separationist” principle
Jefferson’s metaphor of a “wall of separation” in 1802
private letter to the Danbury Baptist Association
even that case did not prohibit the challenged state action
involved
was basis of striking down prayer & Bible reading in
school [Engle v Vitale (1962), Murray v Curlett & Abington
School Dist. v Schempp, 1963]
The Lemon Test
Current (though weakening) Supreme Court
standard for evaluating any “state” action
challenged on “establishment clause” grounds
(Lemon v. Kurzman, 1971)

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Does law have a predominantly secular purpose?
Does law have a “neutral impact” which neither
advances nor restricts religion?
Does law create an “excessive entanglement”
between the Church and State?
If the answer to either of the first two questions is
“NO” or the answer to third question is “YES”, the
law is void
Application of the “Lemon test” to “parochiaid”

Invalidated supplementing parochial school
teachers’ salaries for secular subjects,
reimbursements for administering/grading tests
required by state, grants for building maintenance
and repair, tax benefits, tuition reimbursement,
“auxiliarly services” such as counseling, testing,
instructional materials (although not textbooks),
after-school enrichment courses, teachers’ salaries
and materials for remedial instruction [Agostini v
Felton (1997)], school district created for
handicapped children of a particular sect, required
teaching of “creation-science” [Edwards v Aguillard,
1987] moment of silence for prayer/meditation
[Wallace v Jaffree, 1985)], displaying of Ten
Commandments in classrooms
Application of the “Lemon test”


Upheld funding for secular buildings at religious
colleges, textbook loans, general purpose funds for
secular purposes in religious colleges, vocational rehab
assistance for student at religious college, sign
language interpreter for student at religious high school,
moment of silence when purpose not specified
Outside of School: Marsh v Chambers, 1983
Lemon test acknowledged but not followed
Clear historical practice trumps legal theory
Incorporation principles do not permit binding a stricter
standard on the states than those bound on the U.S.
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Lynch v Donnelly (1984)
Waltz v Tax Commission (1970) – pre-Lemon
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4-3
Evolution of “Separationist Interpretation” of
the Establishment Clause
Prohibits endorsing the Christian (or any other
religion) in any aspect over other religions; prohibits
conveying a message of endorsement – O’Connor
Prohibits expressing any “approval” or
“endorsement” of religion vs. non-religion or
irreligion – Douglas, Souter
Evolution of “Separationist Interpretation” of
the Establishment Clause

Prohibits any coercive element in state policy
Lee v Wiseman – clergy-led invocation (1993)
Santa Fe Independent School District v Doe – student-led
invocation at athletic events (2000)

Court rejected claim of valid secular purpose
Foster free expression
Solemnize sporting events
Promote good sportsmanship and student safety
Establish appropriate environment for competition
Kennedy did not rely on Lemon test in either of these
opinions, but stressed that government may not “coerce
anyone to support or participate in any religion or its
exercise”
4-3
Current Status of Lemon Test
Never overruled by Court, although Scalia
alleged in a concurring opinion in 1993 that a
majority of his colleagues no longer held to it
It continues to be invoked, although a
majority is willing to embrace an
“accommodationist” approach within the
framework of the Lemon test, i.e., the 3
prongs have become more pliable
Some schools have:
forbidden a student from reading the Bible in the
school bus.
forbidden a student from praying before a meal
in the cafeteria.
refused to accept a student history essay on the
life of an historical figure because the essay
described Jesus.
refused to allow a Bible study group to be
organized by students while permitting political,
philosophical, science, and other special interest
groups.
refused to allow a “Jesus costume” in a class
Halloween party
Equal Access Act of 1984
If school receives federal money and
allows non-curricular activities and club
meetings (a limited public forum), then it is
unlawful to deny student the right to meet
for religious activities as long as
Participation is voluntary
Student-initiated and not sponsored by the school
Not disruptive and follows any “time, place,
manner” regulations applicable to other groups
Must have equal access to all school facilities and
assets made available to other groups
“Equal access” rulings have shown Court’s
willingness to let free speech/association
rights trump establishment clause concerns,
i.e., state may not deny any benefit to a
group (in relation to other groups) just
because the group has a religious purpose
Test of the Access Laws
Board of Education of the Westside Community
Schools v. Mergens (1990)

Christian Club denied access – ruled in favor of
students
Lamb’s Chapel v. Center Moriches Union Free
School District (1993)

Free speech cannot be arbitrarily censured because
of content
The Good News Club v. Milford Central Schools
(1999)

Schools must allow religious groups access to
schools if they allow others access.