Do Now:
Grab today’s Agenda (4:4) and take out your homework.
The read the following excerpt and identify it. What is the message?
Whereas, Almighty God hath created the mind free;
That all attempts to influence it by temporal punishments or burthens, or by civil
incapacitations tend only to beget habits of hypocrisy and meanness, and therefore are a
departure from the plan of the holy author of our religion… Be it enacted by General
Assembly that no man shall be compelled to frequent or support any religious worship,
place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in
his body or goods, nor shall otherwise suffer on account of his religious opinions or belief,
but that all men shall be free to profess, and by argument to maintain, their opinions in
matters of Religion…
Religious Freedom
• Establishment Clause
• Free Exercise Clause
Establishment Clause
Define
• Freedom of religion has been an important issue throughout
American history.
• The Framers of the Constitution were concerned with preserving
religious freedom and preventing the federal government from
endorsing a single religion. And so they included the establishment
clause into the First Amendment.
Establishment Clause
A Wall of Separation
• The goal of the establishment clause was to create a “wall of separation”
between religion and the government.
• However, the Framers disagreed over the extent of the separation between
church and state.
• At the beginning of the Revolutionary War, 9 of the 13 original colonies financially
supported a single religion.
• Although citizens were free to practice other religions, those religions received no
financial support from the state.
• Some Framers believed that endorsing one religion was acceptable as long as the
practice of other religions was not limited.
• Many historians believe that the establishment clause was made
intentionally ambiguous to accommodate the Framers’ differing opinions.
Establishment Clause
A Wall of Separation (continued)
• Regardless of the intent, this ambiguity has prompted the various Supreme
Courts to interpret the Establishment clause in three different ways:
• A strict separation in which government takes no notice of religion and permits no hint of
religious sentiment or symbolism to attach to its actions.
• Government may not favor one religion over another, and certainly not one over all the
others, but that it may provide general support and benefit to all religions.
• Government should actively promote religions as beneficial to the nations’ moral strength
and health although, once again, no religion or religions should be favored over others.
• While the Establishment Clause has been understood that the national
government in general may not establish an official national religion nor favor
one religion over others, what is less clear is whether government using tax
dollars, public facilities, or moral suasion, may support, facilitate, or cooperate
with religious groups.
Establishment Clause
In Public Schools
Everson v. Board of Education (1946) - #1
oNo.
oServices like bussing and police and fire
protection for parochial schools are
“separate and so indisputably marked off
from the religious function’ that for the
state to provide them would not violate
the First Amendment.
oThe law did not pay money to parochial
schools, nor did it support them directly
in anyway. It was simply a law enacted as
a “general program” to assist parents of
all religions with getting their children to
school.
Bottom Line:
Establishment Clause
In Public Schools
McCollum v. Board of Education (1947) - #2
o Yes.
o Public schools are supported via taxes and so
their close cooperation with religious
authorities violated the Establishment Clause.
o Students are required by law to attend school.
However they were released, in part, from this
legal duty if they attended religious classes.
o And so the Court found that the Champaign
system was “beyond question a utilization of
the tax-established and tax-supported public
school system to aid religious groups and to
spread the faith.”
Bottom Line:
Establishment Clause
In Public Schools
Zorach v. Clauson (1951) - #3
oNo.
oThe Court noted that public facilities
were not being used for the purpose
of religious instruction and that “no
student was forced to go to the
religious classroom.”
Bottom Line:
Establishment Clause
In Public Schools
Engle v. Vitale (1961) - #4
oYes.
oNeither the prayer’s
nondenominational character nor its
voluntary character saves it from
unconstitutionality.
oBy providing prayer, New York officially
approved religion.
Bottom Line:
Establishment Clause
In Public Schools
Abington School District v. Schempp (1962) - #5
oYes.
oThe required readings and recitations
were essentially religious ceremonies and
were “intended by the State to be so.”
oFurthermore, the ability of a parent to
excuse a child from these ceremonies by
a written note was irrelevant since it did
not prevent the school’s actions from
violating the Establishment Clause.
Bottom Line:
Establishment Clause
In Public Schools
Epperson v. Arkansas (1968) - #6
oYes.
oThe law had been based solely on the
beliefs of fundamentalist Christians, who
felt that evolutionary theories directly
contradicted the biblical account of
Creation.
oThis use of state power to prohibit the
teaching of material objectionable to a
particular sect amounted to an
unconstitutional Establishment of
religion.
Bottom Line:
Establishment Clause
In Public Schools
Lemon v. Kurtzman (1970)- #7
o Yes.
o The Court articulated a three-part test for
laws dealing with religious establishment:
o Statute must have a secular legislative purpose
o Its principle effect can neither advance nor
inhibit religion
o It must not foster “an excessive government
entanglement with religion.”
o The Court found that the subsidization of parochial
schools failed the Lemon Test. While it passed the
first two prongs, it failed the third prong since the
enforcement of such a provision would inevitably
entangle the state in religious affairs.
Bottom Line:
Establishment Clause
In Public Schools
Edwards v. Aguillard (1986) - #8
oYes.
oUsing the three-pronged Lemon Test, the
Louisiana law failed on all three prongs.
o First, it was not enacted to further a clear
secular purpose.
o Second, the primary effect of the law was to
advance the viewpoint that a “supernatural
being created humankind,” a doctrine central
to the dogmas of certain religious
denominations.
o Third, the law significantly entangled the
interests of church and state by seeking
“symbolic and financial support of
government to achieve a religious purpose.”
Bottom Line:
Establishment Clause
In Public Schools
Elk Grove Unified School District v. Newdow (1986) - #9
oThe Court found that Newdow did not
have standing to bring suit on behalf
of his daughter because he did not
have sufficient custody over his
daughter. He and his wife were
divorced and his wife had full custody
over their daughter.
Bottom Line:
Establishment Clause
Tax Exemption
Walz v. Tax Commission of the City of New York (1969) #10
oNo.
oThe Court held that the purpose of the
exemptions was to neither advance nor
inhibit religion; no one particular church
or religious group had been singled out
to receive tax exempt status.
oThis is different from subsidies since that
would have “unduly entangled the state
with religion.” Tax exemption creates
only “minimal and remote involvement
between church and state and far less
than taxation of churches.
Bottom Line:
Establishment Clause
Tax Exemption
Texas Monthly, Inc. v. Bullock (1988) - #11
o Yes.
o The Texas government “directs a subsidy
exclusively to religious organizations” by
providing the exemption.
o Since taxing religious publications did not
inhibit the exercise of religion, a state could
not singularly remove taxes for religious
publications while still taxing nonreligious
publications.
o This would use state mechanisms to give
religious publishers an advantage over
nonreligious publishers in violation of the
Establishment Clause.
Bottom Line:
Establishment Clause
Religious Displays
Lynch v. Donnelly (1983) - #12
oNo.
oThe Court found that the display, viewed
in the context of the holiday season, was
not a purposeful or surreptitious effort to
advocate a particular religious message.
oThe Court found that the display merely
depicted the historical origins of the
Holiday and had “legitimate secular
purposes.”
oThe symbols posed no danger of
establishing a state church.
Bottom Line:
Establishment Clause
Religious Displays
County of Alleghany v. ACLU Greater Pittsburgh Chapter (1988) #13
o Yes.
o The Court held that the nativity scene inside
the courthouse unmistakably endorsed
Christianity in violation of the Establishment
Clause.
o By prominently displaying those words, the
county sent a clear message that it
supported and promoted Christian
orthodoxy.
o The Court also held, however, that not all
religious celebrations on government
property violated the Establishment Clause.
Bottom Line:
Establishment Clause
Religious Displays
McCreary County v. ACLU of Kentucky (2004) - #14
oYes.
oThe Court held that the displays
violated the establishment clause
because their purpose had been to
advance religion.
oIn the case of each of the displays, the
Court held, an observer would have
concluded that the government was
endorsing religion.
Bottom Line:
Free Exercise Clause
Define
• Many of the English settlers who immigrated to America left England to escape
religious persecution.
• The Free Exercise Clause states that the federal government shall make no law
prohibiting the exercise of religion. This requires the government to respect and
permit all religious ceremonies and activities.
• The only instance in which the government can prohibit a religious practice is when
the practice violates a law.
• Religious activities that may seem socially unacceptable or bizarre to some are
protected under the Free Exercise Clause as long as no laws are broken.
• It gives citizens the right to believe and practice their religion without government
interference.
Free Exercise Clause
Challenges
Reynolds v. United States (1878) - #15
oNo.
oThe statute can punish criminal activity
without regard to religious belief.
oThe First Amendment protected religious
belief, but it did not protect religious
practices that were judged to be criminal
such as bigamy.
oThose who practice polygamy could no
more be exempt from the law than those
who may wish to practice human
sacrifice as part of their religious belief.
Bottom Line:
Free Exercise Clause
Challenges
Sherbert v. Verner (1962) - #16
oYes.
oThe Court held that the state’s eligibility
restrictions for unemployment
compensation imposed a significant
burden on Sherbert’s ability to freely
exercise her faith.
oFurthermore, there was no compelling
state interest which justified such a
substantial burden on this basic First
Amendment right.
Bottom Line:
Free Exercise Clause
Challenges
Employment Division v. Smith (1989) - #17
o Yes.
o The Court has never held that an individual’s
religious beliefs excuse him from compliance
with an otherwise valid law prohibiting conduct
that government is free to regulate.
o Allowing exceptions to every state law or
regulation affecting religion “would open the
prospect of constitutionally required exemptions
from civic obligations of almost every
conceivable kind.”
o Justice Scalia, who wrote for the majority, cited
as examples compulsory military service,
payment of taxes, vaccination requirements, and
child-neglect laws.
Bottom Line:
Free Exercise Clause
Challenges
Church of Lukumi Babalu Aye v. City of Hialeah (1992) - #18
o Yes.
o The Court held that the ordinances were
neither neutral nor generally applicable.
o The ordinances had to be justified by a
compelling governmental interest and they
had to be narrowly tailored to that interest.
o The core failure of the ordinances were that
they applied exclusively to the church. The
ordinances singled out the activities of the
Santeria faith and suppressed more religious
conduct than was necessary to achieve their
stated ends.
Bottom Line:
Free Exercise Clause
Challenges
Bob Jones University v. United States (1982) - #19
o Yes.
o The Court found that the institution did not meet the
requirement by providing “beneficial and stabilizing
influences in community life” to be supported by taxpayers
with a special tax status.
o The school could not meet this requirement due to their
discriminatory policies.
o The Court declared that racial discrimination in education
violated a “fundamental national public policy.”
o The government may justify a limitation on religious
liberties by showing it is necessary to accomplish an
“overriding governmental interest.”
o Prohibiting racial discrimination was such a governmental
interest. Hence, the Court found that “not all burdens on
religion are unconstitutional.
Bottom Line:
Free Exercise Clause
Challenges
Burwell v. Hobby Lobby (2013) - #20
o Yes.
o The Court held that Congress intended for the RFRA to be
read as applying to corporations since they are composed
of individuals who use them to achieve desired ends.
o Because the contraception requirement forces religious
corporations to fund what they consider abortion, which
goes against their stated principles, or face significant fines,
it creates a substantial burden that is not the least
restrictive method of satisfying the government’s interest.
o In fact, a less restrictive method exists in the form of the
Department of Health and Human Services’ exemption for
non-profit religious organizations, which the Court held can
and should be applied to for for-profit corporations such as
Hobby Lobby.
o Additionally, the Court held that his ruling only applies to
the contraceptive mandate in question rather than to all
possible objections to the ACA on religious grounds .
Bottom Line:
Free Exercise Clause
Burwell v. Hobby Lobby Stores (2013) - continued
• Justice Ruth Bader Ginsburg wrote a dissent:
• She argued that the majority’s decision ignored the decision in Employment Division v.
Smith, in which the Court held that there is no violation of the freedom of religion when
an infringement on that right is merely an incidental consequence of an otherwise valid
statute.
• Additionally, judicial precedent states that religious beliefs or observances must not
impinge on the rights of third parties, as the sought-after exemption would do to
women seeking contraception in this case.
Conclusion
• Courts have taken a broad interpretation of the Establishment Clause and
have ruled that the government cannot use tax money to provide direct aid
to religious institutions. However, religious institutions are allowed to use
government services such as police and fire services, and pupil
transportation. The government also makes reasonable accommodations
for religious practices, such as allowing children in public schools to be
excused for religious holidays.
• The “Lemon Test” allows school districts, legislatures, and courts to more
easily determine whether assistance to religious groups is protected under
the Establishment Clause. Despite the criteria established in Lemon, the
Supreme Court has been criticized for its inconsistencies. The Court allows
prayer in Congress and the words “In God We Trust” on federal currency.
• Like much of the First Amendment, the Establishment Clause has been
passionately debated. Despite some inconsistencies, the court has
established rules and criteria that allow citizens to more easily determine
whether certain behaviors are allowed under the Establishment Clause.
Conclusion
• In a nation as diverse as the United States, it is no surprise that conflict arises between
individuals’ religious beliefs and the federal laws, and that those conflicts eventually end
up in the judicial system.
• The Court determined that an individual’s religious beliefs do not exempt him from laws
which the federal government has a constitutional right to make and enforce. The Court
has also determined that state laws that limit the free exercise of religion are only
constitutional if the state has a compelling interest, such as enforcing drug laws. The
deciding factor for the Court is whether the purpose of a law is to limit the rights of a
specific religion or if the impact on the free exercise of religion is just a byproduct of a law.
• Although the free exercise clause protects citizens’ rights to have and practice religious
beliefs, it does not afford absolute freedom. Religious activities must not harm others or
violate laws. The concept of freedom with boundaries can be difficult to understand and
interpret, which is reflected in the Supreme Court’s sometimes seemingly contradictory
rulings. However, no one can deny that the United States affords its citizens with the
religious freedom that our forefathers sought as they fled Europe centuries ago.