American Constitutional Law LAW-210

American Constitutional LawLAW-210 Freedom of Religion

Unit Objectives At the completion of this unit, students should be able to: Quote the language of the First Amendment that guarantees freedom of religion. Compare and contrast the Establishment Clause with the Free Exercise Clause. Describe how the Supreme Court explains the term religion. Identify the three major theories regarding interpretation of the Establishment Clause. Explain the effect of the First Amendment on prayer in the public schools.

Unit Objectives(Continued) Describe how the teaching of evolution created a freedom of religion issue. Summarize the arguments for and against grants of tax exemption to religious institutions. Analyze circumstances under which the government can give financial aid to religious schools. Explain the relevance under the Free Exercise Clause of the difference between religious conduct and religious beliefs. Describe how the Supreme Court applies the Free Exercise Clause to claims for unemployment benefits, compulsory education and Sunday closing laws.

Religious Protections of the First Amendment • The First Amendment prohibits Congress from making any law regarding the establishment of religion (the Establishment Clause) or the free exercise of religion (the Free Exercise Clause). “Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof.” (U.S. Const. amend. I)

Religious Protections of the First Amendment(Continued) • The religion clauses work in tandem to preserve a single ideal, religious freedom. • The Establishment Clause mandates a kind of mutual noninterference by church and state in each other’s affairs. • This mutual noninterference helps to foster the freedom of religious belief and practice mandated by the Free Exercise Clause.

Meaning of “Religion” • Although there is no exact definition of religion, the Supreme Court established the following criteria: • There must be a belief in God or the person must hold a parallel belief that is central in the person's life, • the religion must incorporate a moral code that goes beyond individual belief, • there must be some associational ties, some group of people brought together by common beliefs, and • the belief must be sincere.

United States v. Seeger380 U.S. 163 (1965) • Issue: Protected beliefs; conscientious objection to military service. • Held that: • The test of religious belief is whether it is a sincere and meaningful belief occupying in the life of the possessor a place parallel to that filled by God. • This requires no proof of comprehensible religious doctrine.

Welsh v. United States398 U.S. 333 (1970) • Casenotes • Issue: Protected beliefs. • Held that: • One can claim conscientious objector status even though he professes no religious-based objection. • Conscientious objector status applies to "all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war.”

The Establishment Clause • The Establishment Clause requires separation of church and state. • Test -- The government violates the Establishment Clause if: • the government's primary purpose is to advance religion (i.e., no “secular purpose”), or • if the principal effect is to inhibit or aid religion, or • if there is government entanglement with religion.

Theories Regarding Interpretation of the Establishment Clause • Strict Separation Theory • States that religion and government should be separated to the greatest possible extent. • Under this theory, government is to be secular, and religion is left to society. • Neutrality Theory • Under this theory, the government must remain neutral toward religion. • The government cannot prefer religion over secularism or favor one religion over others. • Accommodation Theory • This theory supports an interpretation of the Establishment Clause to mean that the Court should affirm the importance of religion in American society and it should accommodate its presence in the government.

County of Allegheny v. American Civil Liberties Union492 U.S. 573 (1989) • Casenotes • Issue: Displays of religious themes. • Held that: • A creche inside a courthouse unmistakably endorsed Christianity in violation of the Establishment Clause. By prominently displaying the words "Glory to God for the birth of Jesus Christ," the county sent a clear message that it supported and promoted Christian orthodoxy. • The Court also held, however, that not all religious celebrations on government property violated the Establishment Clause, concluding that a display involving a menorah was constitutionally legitimate given its "particular physical setting."

Prayer in Public Schools • The Supreme Court has stated that the First Amendment prohibits school-sanctioned prayer. • Specifically, the Court prohibited: • A public school policy voluntary prayer time, Engel v. Vitale (1962), • Clergy-led prayer at graduation, and • Reading the Bible in class and reciting the Lord’s Prayer, School Dist. v. Schempp (1963).

The Teaching of Evolution • The teaching of evolution has historically presented different questions: • Initially, the question was whether states could adopt laws prohibiting the teaching of evolution and only allowing the teaching of creationism – creationists argued that the theory of evolution was against their religious beliefs. • Later, the debate became whether a public school was required to teach creationist theory along with evolution.

Tax Exemptions for Religious Institutions • Argument against - Granting a tax exemption for religious institutions aids religion and therefore interferes with the Establishment Clause. • Argument for - Taxing religions puts a burden on the religion and interferes with the Free Exercise Clause. • The Supreme Court allows tax exemptions because of the social contributions of religions, but the same exemptions must be available for nonreligious charities.

Committee for Public Education & Religious Liberty v. Nyquist413 U.S. 756 (1973) • Casenotes • Issue: Aid to parochial schools. • Held that: • The propriety of a legislature’s purpose may not immunize from further scrutiny a law that either has a primary effect that advances religion or fosters excessive church-state entanglements.

Zelman v. Simmons-Harris536 U.S. 639 (2002) • Casenotes • Issue: Aid to parochial schools. • Held that: • A state school voucher program was entirely neutral with respect to religion. • It provided benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district, and permitted such individuals to exercise genuine choice among options public and private, secular and religious. • The program was therefore a program of true private choice.

Tilton v. Richardson403 U.S. 672 (1971) • Casenotes • Issue: Construction grants to religious colleges. • Held that: • An act that provided grants to church-sponsored higher educational institutions. for the construction of non-religious school facilities did not violate the religion clauses of the First Amendment.. • The church-related institutions in question had not used their federally-funded facilities for religious activities, and that the facilities were "indistinguishable from a typical state university facility." The Court also held that the Act did not excessively entangle the government with religion.

Roemer v. Board of Public Works426 U.S. 736 (1976) • Issue: Grants of aid to religious colleges. • Held that: • A state law granting annual aid to private institutions of higher learning, including religious institutions, but excluding those awarding only seminarian or theological degrees, did not violate the religion clauses of the First Amendment.

Financial Aid to Religious Schools • The government can give aid to religious elementary and high schools if the aid is for nonreligious activities, such as school busing, but similar assistance must be available to nonreligious schools. Everson v. Board of Education (1947) • The Supreme Court also favors aid given directly to students and not to the religious school. Zelman v. Simmons-Harris (2002) • The Court is more lenient in reviewing aid to colleges and universities, noting the difference in age of students and their ability to understand that government aid is not an endorsement of a religion. Tilton v. Richardson (1971),Roemer v. Board of Public Works (1976)

The Free Exercise Clause • The Free Exercise Clause prohibits government regulation of one's religious beliefs, but does allow some regulation of conduct required by or prohibited by one's religion. • Tests – • Laws that intentionally interfere with or burden the free exercise of religion must meet strict scrutiny. • Laws that unintentionally interfere with or burden the free exercise of religion when the government is pursuing other objectives has to meet a balancing of the interests test.

Religious Conduct vs. Religious Beliefs • Religious belief is protected by the Free Exercise Clause. • Religious conduct, like any conduct, can be regulated by the state. • Religious conduct that is illegal, such as smoking peyote or polygamy, is not protected by the Free Exercise Clause. Employment Division v. Smith (1990)

Employment Division v. Smith494 U.S. 872 (1990) • Casenotes • Issue: Illegal religious behavior. • Held that: • The Free Exercise Clause may not be employed to challenge a law of general applicability. • A law may burden a religious practice and be constitutional as long as it does not target religious behavior for punishment. • Also, the law cannot be motivated by an intent to interfere with religion.

Other Specific Settled Areas • Unemployment Benefits – • Denying unemployment benefits to people who do not work on a Sabbath because it violates their religious beliefs is unconstitutional. Hobbie v. Unemployment Appeals Comm’n (1987) • Compulsory Education - • The Supreme Court sided with Amish families in finding that compulsory high school education of their children violated the Free Exercise Clause. Wisconsin v. Yoder (1972)

Other Specific Settled Areas(Continued) • Sunday Closing Laws – • Laws requiring merchants to be closed on Sundays generally do not violate the Establishment Clause. • A Free Exercise challenge was rejected in connection with Sunday closing laws where an Orthodox Jew claimed that he had to close on Saturday because of his religious beliefs, and that forcing him to close on Sunday in accordance with the law interfered with his religious beliefs. Braunfeld v. Braun (1961)

Braunfeld v. Braun366 U.S. 599 (1961) • Casenotes • Issue: Sunday closing law. • Held that: • The freedom to hold religious beliefs and opinions is absolute; however, the freedom to act (even in accordance with religious convictions) is not totally free from government restrictions. • The law is valid despite its indirect burden on religious observance unless the state can accomplish its secular goal of providing a uniform day of rest for all through other means. • That an indirect burden, such as economic sacrifice, may be a result of the statute, does not make the blue law unconstitutional.

American Constitutional Law LAW-210