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Freedom of Religion. Establishment Clause 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; 2. Federalizing influence of Amendment 14 (Gitlow v. New York).
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Establishment Clause 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; 2. Federalizing influence of Amendment 14 (Gitlow v. New York). 3. The basic meaning of the establishment clause is that government may not establish an official religion. • “Accommodationist view”: Government should bend a bit and allow a certain degree of church/state blending. • “Separationist view:” Government should allow virtually no blending of church and state. There should be a “wall of separation” between the two. • “Endorsement view”: forbids governmental practices that endorse religion. • “Non-preferentialist view”: The Constitution prohibits favoritism towards a particular religion, but allows governmental support for religion in general.
Lemon v. Kurtzman: established a 3-part test to determine if a statute or practice violates the establishment clause: If any of the following are present, the statute or practice is unconstitutional. • a. Non-secular (religious) purpose. • b. Advances or inhibits religion. • c. Excessive entanglement with religion.
Key Rulings: • 1. Everson v. Board, 1947: applied establishment clause to the states • 2. Engle v. Vitale, 1962: no state-sponsored, recited prayer in public school. • 3. Abbington v. Schempp, 1963: no devotional Bible-reading in public school. • 4. State laws that require the teaching of creation science are unconstitutional. • 5. Epperson v. Arkansas, 1968: state laws may not prohibit the teaching of evolution in public school. • 6. State laws that require the posting of the 10 Commandments in public school are unconstitutional.
7. Release time for students is constitutional. • 8. Tax exemptions for churches are constitutional as they are for other nonprofit institutions. • 9. Christmas displays in town squares are constitutional as long as they include some secular content. • 10. Permissible forms of state aid to parochial (private religious) schools: textbooks, lunches, bus transportation. • 11 Impermissible forms of state aid to parochial schools: field trips, teacher salaries, counseling services, remedial instruction.
Free Exercise Clause • 1. Provides freedom of worship. • 2. Federalizing influence of Amendment 14 (Gitlow v. New York). • 3. Problem of contradiction between the establishment clause and the free exercise clause. • 4. Distinction between belief and practice: the former is always allowed, but the latter is not always allowed. Freedom of worship is a relative, not absolute, right. Balancing test once again applies. • 5. Standard used by court’s for judging whether or not religious expression is constitutional: (next slide)
A. Old standard: government could not deny religious expression unless there was a compelling purpose for it to do so. Burden of proof was on the states. This made it difficult for states to restrain religion. • B. That standard was reversed by Oregon v. Smith, 1990: government no longer needed a compelling purpose to deny religious expression. Burden of proof was now on religion. The only laws that would be struck down would be those that were intended to stifle a particular religion. This made it easier for states to restrain religion. • C. A strange congressional coalition led by Orrin Hatch and Ted Kennedy sponsored the Religious Freedom Restoration Act, 1993: restored the old compelling purpose standard, and burden of proof was once again on states. This made it difficult for states to restrain religion. • D. In City of Boerne v. Flores, 1997, the Supreme Court struck down the Religious Freedom Restoration Act and restored the standard used in Oregon v. Smith. Burden of proof was once again on the religion. This made it easier for states to restrain religion.
6. Religious practices that have been restricted: • a. Polygamy (Reynolds v. U.S.). • b. Not paying Social Security taxes. • 7.Religious practices that have been permitted: • a. Not saluting the flag in public school • b. Covering up the New Hampshire state motto (“Live Free or Die”) on an automobile license plate. • c. Not sending children to school past the 8th grade. • d. Sacrificing of animals for religious purposes. (Church of Lukumi Babalu Aye v. Hialeah, 1993) • Article 6 bans religious tests and oaths as a qualification to hold public office.
