Week 14: Religion and the Constitution
Free Exercise and the Establishment Clause
Role of Religion in US Government
Why is it a topic of constitutional concern? Are we worried for government -- or religion? And what is religion? If a narrow definition prevails, few FE rights . . . If a broad definition prevails, big EC trouble . . . Seeger, 1965: in defining religion, consider whether it is based on a belief that is sincere and meaningful, paralleling that of an orthodox belief in God Ballard, 1944: that religious views are “sincerely held” is enough; truth is beyond judicial scrutiny Thomas, 1981: it matters not the relation to orthodoxy
Free Exercise
Constitutional Scrutiny of Legally Compelled Actions or Inactions That Would Violate Religious Beliefs
The Classic FE Dichotomy: Opinion versus Action
Reynolds, 1878 (first FE case): government can control action, but not opinion; one has an “absolute constitutional” freedom to believe, but not to act
The Smith Test, 1990: Current Test for Burdens on Free Exercise
Testing neutral, generally applicable laws that incidentally compel actions or inactions violating religious beliefs, where no “hybrid” concern of speech or parental right is involved: Held: no heightened FE scrutiny in such settings -- rational basis okay; there is no constitutional mandate for govt. to respect religious practice IF another constitutional right were entwined (e.g., speech, press, schooling), higher scrutiny
Sherbert v. Verner (1963) and the Benefits Cases
In the unemployment benefits context, no denial of benefits for work terminations traceable to religious conflicts unless a compelling state interest is shown Strict scrutiny applied to these neutral unemployment laws that burden religious practice Thomas (1981), Hobbie (1987), Frazee (1989) all also struck unemployment insurance denials Note that Boerne, 1997, struck the attempt to revive Sherbert more broadly as beyond Congress’ Section 5 powers . . .
Other Cases Striking Laws Based on Interference with FE
“Hybrid” cases like Yoder, 1972 (homeschooling) “Targeting” cases like Church of the Lukumi v. Hialeah, 1993: strict scrutiny for Santeria animal sacrifice (even though the ordinance is facially neutral and of general applicability)
But Most FE-based Challenges Fail
Lee, 1982 (payment of taxes), Bob Jones, 1983 (tax exemption), Bowen, 1986 (SS#) Goldman, 1986 (yarmulke in military)
The Establishment Clause
Four Possible Judicial Approaches: Strict Separation Neutrality Accommodation Mutual harmony
Larson v. Valente, 1982: Discrimination Among Religions
Religious organizations that collect more than 50 percent of their funding were subjected to special reporting requirements by Minnesota Finding no “close fit” between the purposes and a “compelling governmental interest,” the Court struck the requirements
Lemon v. Kurtzman, 1971: EC Test for Non-Discriminatory Laws
Striking salary supplements to religious school teachers – and establishing the famed Lemon Test for checking when a law violates the EC First, the statute must have a secular legislative purpose Second, its principal or primary effect must be one that neither advances nor inhibits religion Third, the statute must not foster an excessive entanglement with religion
A Key Hybrid: Religious Speech
Widmar, 1981: school facilities must be available for students wishing to use facilities for religious purposes Good News Club, 2001: true even in elementary school setting Rosenberger, 1995: Virginia’s refusal to fund religious mag at UVA by an otherwise qualified student group held unconstitutional Santa Fe, 2000: forcing student-led prayer choice on football visitors held unconstitutional
Religion in Public Schools
Engel, 1962: no mandatory school prayer Abington, 1963: no reading from Bible Wallace, 1985: moment of silence for meditation or silent prayer unconstitutional
Lee v. Weisman, 1992: Prayers at Public School Graduation Held Coercive
Michael Newdow & Religious Speech: The Pledge Case
Government Activities and Religion
Epperson, 1968: curricular decisions may not be dictated by religion, such as outlawing evolution Marsh, 1983: chaplains and prayer at public law-making bodies: allowed in light of “unique history” Agostini, 1997: public teachers in private schools okay so long as no “religious indoctrination” occurs; coollapses parts 2 and 3 of Lemon Mitchell v. Helms, 2000: lending equipment okay Zelman, 2002: “true private choice” vouchers upheld where neutral on ultimate recipients of funding The Ten Commandments Cases from 2005: some okay, some not