Download Free Exercise and Establishment Clause Notes from Witte

Modern Free Exercise Law
I.
A.
B.
C.
II.
A.
B.
Introduction
New Era (erosion of federalism in religious liberty law) where
religious liberty is influenced more by US SC rather than states. First
150 years, 31 religious liberty cases NONE using the first
amendment. Last 70 years, 130 religious liberty cases, MOST using
first amendment. Why?
Incorporation – apply many of the Bill of Rights to states.
Consequences – states have not stopped legislating on religion, but
must keep one eye on constitutional law. Problem is, 70 years of
religious liberty law has been fraught with inconsistencies.
Mapping Modern Free Exercise Doctrine
Key points of conflict - Cases feature conflicts between private
religious practice/belief and governmental power/action. Claimants
argue that some law “prohibits” their free exercise of religion by
burdening (inhibiting acts of worship; commanding them to do
something that conflicts with their doctrines/practices;
discriminates by burdening their religious activities but not those of
others).
Easy cases – Jehovah Witnesses forced to swear an oath or Jews
forced to remove a yarmulke.
C.
Hard cases – unemployment insurance is denied to an applicant
because he refuses to work on Saturday for religious reasons; a
secular humanist refuses to serve in the military; a religious
university refuses to accept blacks because it thinks the Bible
requires separation of races; a business requires devotion
attendance for all employees.
*One rather consistent doctrine is that free exercise claims must be
“sincere” rather than contrived (this means religious probing).
Again, court has to explore and define what is religious (naturalist
faith and a farmland shrine? Personal religious convictions. Etc.)
III. Free Exercise Case law
A. Scrutiny level – if “low-level” (rational basis), then law is upheld if it
is reasonably related to a legitimate government interest; if “highlevel” (strict scrutiny), the law is upheld only if gov’t interest is
compelling and if it is narrowly tailored to achieve that interest
(last resort and least offensive). So, what level of scrutiny did
court use in Reynolds (the Mormon cases)?
B.
Scherbert and Smith – since Reynolds, court moved in a
heightened scrutiny direction.
1.
Scherbert vs. Verner (1963) – Scherbert gave us the strict scrutiny
test in FE cases (compelling interest and narrowly tailored). This
favored religious minorities.
2. Employment Division v. Smith (1990) – Court rejected strict scrutiny
and adopted a low-level test. A law is valid so long as it is facially
neutral and generally applicable. If not, strict scrutiny test.
3. Evaluation of Smith - The ‘Smith test” was used to overturn a local
anti-Santeria law in FL, but critics remain. They see the test as a
return to Reynolds (open season on practice) and hurting religious
minorities (if generally applicable, tough). Congress reacted to Smith
with the Religious Freedom Restoration Act (1993), but the SC ruled
that the Act was audacious and unconstitutional when applied to
the states. So, we are left with Smith test for state law (low-level)
and RFRA in federal law.
4. Court reluctant to apply Smith because it seemed to disfavor
minorities, but Smith is still the most frequently used test for Free
Exercise featuring state law challenges. From mid-1990s to Locke vs
Davey (2004), court even signaled that it might consider “unequal
access” to government funds as a violation of free exercise, but
Locke presents serious setback to that trend.
Modern Establishment Clause
I.
A.
B.
C.
Introduction
Nature of conflict – government has taken an action
“respecting an establishment of religion” (e.g., coercing
participation in religious activity; improper public use of
religious places or things; allied with religious causes or
groups; discriminates in favor of one religious interest
over others).
No other body of Const. Law is more ambiguous or
difficult to follow
Standards vary broadly under three headings
1. Separationism – government may take no actions
that aid religion, either directly or perhaps even
indirectly.
2. Accommodationism – government may show or
provide non-preferential support for religion.
3. Differing views of ‘Neutrality’ (gray area)
I.
Strict Separation – Justice Hugo Black articulated this doctrine in the
1947 Everson v. Board of Education of Ewing Township decision. Used
Jefferson’s metaphor from his letter to the Dansbury Baptists as the
lens through we interpret the establishment clause. Years later, the
court constructed an allegedly clearer and more relaxed test for
deciding establishment clause cases. Neutrality means secular
according to this view.
Black’s language: "The 'establishment of religion' clause of the First
Amendment means at least this: Neither a state nor the Federal
Government can set up a church. Neither can pass laws which aid one
religion, aid all religions or prefer one religion over another. Neither can
force nor influence a person to go to or to remain away from church
against his will or force him to profess a belief or disbelief in any
religion. No person can be punished for entertaining or professing
religious beliefs or disbeliefs, for church attendance or non-attendance.
No tax in any amount, large or small, can be levied to support any
religious activities or institutions, whatever they may be called, or
whatever form they may adopt to teach or practice religion. Neither a
state nor the Federal Government can, openly or secretly, participate in
the affairs of any religious organizations or groups and vice versa. In the
words of Jefferson, the clause against establishment of religion by law
was intended to erect 'a wall of separation between Church and State.'"
330 U.S. 1, 15-16.
A. Lemon test – A law is constitutional (not guilty of establishment) if:
• It has a ‘secular purpose’
• It’s ‘primary effect’ neither ‘advances nor inhibits religion’
• Does not ‘foster an excessive entanglement with religion’
B. Lemon’s criticisms –
1. Why a secular purpose and what is a secular purpose? Justice
Potter, we may be moving toward “an establishment of the religion
of secularism.” Does Lemon exempt newer philosophies like
liberalism/secularism? Does this empty traditional public religious
promotions like civil religion of all substance (Nebraska chaplain
does not aid religion)? In 1961 (McGowan v. State of MD), Justice
Earl Warren UPHELD Sunday closing laws. But, he did so using
Lemon finding no violation of the first prong. “Secular
justifications have been advanced for making Sunday a day of rest,
a day when people may recover from the labors of the week just
passed and may physically and mentally prepare for the week’s
work to come…” MD’s law “merely happens to coincide or
harmonize with the tents of some or all religions.”
2.
Can excessive entanglement be avoided? If government must be sure to
avoid advancing religion, then won’t it be progressively entangled with it? Is
this feasible in the age of the modern state (if gov’t gets in, religion get out;
but gov’t gets in everywhere today)
3.
Result – often ignored, partially applied, inconsistently interpreted, heavy
criticism from all sides on the court (Paul Marshall quote p. 129 of his book).
Most on the SC today have largely, though not explicitly, abandoned the test
(favoring either the old strict separation principle, or accommodation, or
equal treatment/positive neutrality principle).
*Strange case of Civil Religion – laws, like congressional prayer, Sunday closing,
etc., were upheld and said to secular in nature, not religious.
II. Accommodation - like Strict Separation, this groups recognizes a real
philosophical difference in religion and secularism, but insists that the only
intention behind the establishment clause is to prevent the establishment of
a particular church/denomination/religion. Beyond that, governments are
free to promote/support religion non-preferentially. Clearest articulation in
Rehnquist’s critique of Black and Stewart’s dissent in Engel v. Vitale (“I
cannot see how an ‘official religion’ is established by letting those who want
to say a prayer say it. On the contrary, I think that to deny the wish of these
school children to join in reciting this prayer is to deny them the opportunity
of sharing in the spiritual heritage of our nation…Since the days of John
Marshall, our Crier [of the SC] has said, ‘God save the U.S. and this
Honorable Court’…It was all summed up by this Court just ten years ago in a
single sentence, ‘We are a religious people whose institutions presuppose a
Supreme Being.’”
Rehnquist dissent in Wallace (handout)
IV.
Equal Treatment or ‘Positive Neutrality’ (government must be
evenhanded between religion and irreligion).
A.
Based on philosophy in part and supported by a series of SC
decisions (especially Rosenberger).
1.
Philosophy – religion is utterly pervasive in all human endeavors but
takes many forms (some include a god, gods, no god). Religion is
functionally synonymous with the concept of ‘worldview’. In an
atmosphere of proliferating religious pluralism (progressively since
founding), government neutrality requires that it be evenhanded
between worldview adherents. This respects everyone’s free
exercise of religion in the public space. Example of Univ. of Alabama
physiology prof. As James Reichley put it, “Banishment of religion
does not represent neutrality between religion and secularism;
conduct of public institutions without any acknowledgement of
religion IS secularism.” This is increasingly relevant in an age where
government activity and religious activity increasingly overlap. Tend
to argue that the intention of the founders is that government be
neutral (evanhanded) between real worldviews operating in society
(at first, only Christian denominations, but then different religions,
and today religious and secular worldviews).
2. Series of cases from early 90s to 2000: equal access to school and university
facilities, required a school to rent facilities to a church to show religious
film, required a state to fund the religious education of a blind student,
overturned previous decision now allowing public school teachers to
provide remedial instruction in religiously based schools.
3. Public policy support (Charitable Choice Act 1996) – federal government
may not exclude faith-based charities from contracting with government
to provide social services if it opens itself up to bids from other private
sector (secular) charities.
4. Rosenberger vs Univ of Virginia (1995) – Kennedy “We have held that the
guarantee of neutrality is respected, not offended, when the
government, following neutral criteria and evenhanded policies, extends
benefits to recipients whose ideologies and viewpoints, including
religious ones, are broad and diverse.” Basically, UVA could choose to
fund none, or all, but if it chose to fund secular organizations it must also
fund religious ones. Souter’s dissent – “The Court today, for the first
time, approves direct funding of core religious activities by an arm of the
State….The Univ exercises the power of the State to compel a student to
pay [for] it, and the use of any part of it for the direct support of religious
activity thus strikes at what we have repeatedly held to be at the heart of
the prohibition on establishment.”
• The only other viable establishment standard
worth noting is O’Conner’s ‘endorsement’ test.
In it, she wants to know only if the
government’s actions would be construed by
the ‘objective observer’ as endorsement of
religion. So, in Wallace vs. Jaffree, Alabama’s
moment of silence was unconstitutional to her
because the statute said students should pause
for a “moment of silence or prayer.” If prayer
had been excluded from the language, she said
she had no problem with it. But saying prayer
implied endorsement of a religious activity.