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Freedom of Religion Analysis IIMT

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Constitutional Law II- general focus economic liberties through amendments

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Shared by: Roxie Lovett
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Freedom of Religion Analysis: Does statute fall under the purview of the first amendment? - “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” If YES, then is this a question of: - The Establishment Clause, OR; - Free Exercise Clause Establishment Clause: - Scrutinize statute under Lemon: o Gov’t action that has some relationship to religion will violate the Establishment Clause unless it satisfies ALL THREE:  Secular  Neutral (doesn’t advance or inhibit)  No gov’t entanglement - Possible variations of a statute: o Wallace – School Prayer – Violates neutrality o Zorach – Leaving school for religious purposes, okay. o Allegheny – Religious decorations okay so long as they are accompanied by secular and/or other religious symbols. o Weisman – Clergy members cannot speak at graduations. o Pinnette – KKK allowed to erect a cross in public square where other religious decorations stood. OR Free Exercise Clause - Does statute inhibit right to believe, or right to practice in furtherance of that belief? o Believe –  No law can be made to inhibit the right to believe, that right is absolute.  Unemployment – Sherbert standard – So long as a person’s employment is terminated b/c of a good faith belief in any religion, then they are able to receive unemployment. o Right to Practice in Furtherance of the Belief:  Does statute have purposeful intent, or incidental burden?  Purposeful Intent – o Apply strict scrutiny. o Statute will probably NOT be upheld. o If does not pass Strict Scrutiny – Then the entire statute will be stricken.  Hialeah – When creating a law that will outlaw certain religious acts, the government must still abide by the rules of the Est Clause in that they cannot pick out a particular act by a particular religion and outlaw it.  Incidental Burden – o Apply balancing test – Persons right to practice religious belief against the gov’t’s right to regulate. o Similar to Rational Relation Test o Statute will most likely be upheld. o If it does not pass Rational Relation, statute will be stricken as applied. o Criminal Matters – Smith standard – Case creates an exception for the Court to prohibit religious acts b/c they are outlawed by crim stat.

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