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Constitutional Law II
University of Maine School of Law
Friedman, James

       A.  History and Interrelationship of Religion Clauses (1246-top of 1253)
·         Two Clauses
o   Establishment Clause- prohibits any law “respecting an establishment of religion.”  Its main purpose is to prevent government from endorsing or supporting religion.
o   Free Exercise Clause- bars any law “prohibiting the free exercise of religion.”  Its main purpose is to prevent government from outlawing or seriously burdening a person’s pursuit of any religion or religious practices.
o   The two clauses have been summarized as requiring “that government neither engage in nor compel religious practices, that it effect no favoritism among sects or between religion and non-religion, and that it work deterrence of no religious belief.”  Abington School Dist. (Goldberg, concurring).
·         Applicable to Federal and State Governments
o   By their terms, both clauses are applicable only to action by Congress.  However, both have been made applicable to the states via the 14th Amendment.
§  Conflict Between the Clauses
o   There is some tension between the clauses. 
o   The Court has not yet found a precise way of harmonizing the two clauses.
Ø  However, the Court has articulated the concept of government neutrality toward religion as a vague guideline. 
o   See, e.g., Everson: The Establishment Clause prohibits the state from contributing tax-raised funds “to the support of an institution which teaches the tenets and faith of any church.”  On the other hand, the Free Exercise Clause commands that the state “cannot hamper its citizens in the free exercise of their own religion” by excluding individuals “because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”
Ø  Ultimately, the Court held that the First Amendment does not prohibit the state from “spending tax-raised funds to pay the bus fares of parochial school pupils attending public and other schools.”
Ø  The Court reasoned that the First Amendment “requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary.”
       B.  The Free Exercise of Religion
§  Overview
o   The Clause forbids the outlawing of any religious belief.
o   Conduct
Ø  Normally, free exercise problems arise when the government, acting in pursuit of non-religious objectives, either (1) forbids or burdens conduct which happens to be dictated by someone’s religious beliefs or (2) compels or encourages conduct which is forbidden by someone’s religious beliefs. 
o   Strict Scrutiny vs. Rational Basis Scrutiny
§  Strict Scrutiny
Ø  This test provides that if a law infringes on the free exercise of religion, the law must be “narrowly tailored” to serve a “compelling governmental interest.”
Ø  This test is typically applied in cases of purposeful interference with religion.  See, e.g., supra Lukumi.
§  Rational Basis Scrutiny
Ø  This test provides that if a law infringes on the free exercise of religion, the law must be “rationally related to a “legitimate government objective.”
Ø  This test is typically applied in situations where the statute is not motivated by the intent to interfere with religious conduct, but it nonetheless has that effect.  See, e.g., supra Sherbert.
§  There is debate over which standard to apply in particular circumstances.
§  This is the matrix under which the Court analyzes Free Exercise question, as well as other questions.
o   Exemptions
§  What if there is a generally applicable law that incidentally infringes on religious practice?  Should there be exemptions from these laws for religious practices?
§  Reynolds struck down a petition for a Mormon exemption from state laws banning polygamy. 
§  In Braunfeld, the Court considered the question of “Sunday closing” laws.  A Jewish store owner protested to the mandated closing of business on Sundays; he wanted to close on Saturday.  The Court held that Sunday was merely a day of rest, not a promotion of Christianity.  See pg. 1256.
§  The jurisprudence changed course beginning with Sherbert, see supra.
Ø  Even if the state is pursuing an important governmental goal, but that end could be achieved as well or almost as well by granting an exemption to those whose religious beliefs dictate non-compliance, such an exemption should be given.
             1.  Laws Discriminating Against Religion
                  Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
§  Facts: City passed ordinances in response to announcement that Santeria church would open within the city limits.  The ordinances were aimed to prohibit the church’s religious sacrifice of animals.  Notably, the ordinances had exemptions for Kosher slaughter, commercial slaughter, etc
§  The Court applied the strict scrutiny test in this case.
Ø  A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous scrutiny. 
Ø  “If the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral; and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.”
§  Reasoning/Holding: The Court applied the strict scrutiny test, stating that such a law is invalid unless the government act is both: (1) neutral and (2) of general applicability.
Ø Not “neutral”: Here, the Court found that the ordinances were not “neutral” since they were transparently enacted for the purpose of disfavoring a particular religious practice.
Ø Not “generally applicable”: Nor were the ordinances of “general applicability; they were “under-inclusive.”
§  The asserted governmental interest was the prevention of animal cruelty, protecting public health, etc.  Even if the ordinances served a “compelling governmental interest” the law is not “narrowly tailored” to serve that interest; it is “overbroad and under-inclusive.” 
             2.  Neutral Laws Adversely Affecting Religion
                  Sherbert v. Verner (1963) (1266-1269)
§  Facts: A woman lost her job because she was unwilling to work on Saturdays because of her practices as a 7th Day Adventist.  She was subsequently denied unemployment benefits because she failed, without good cause, to accept “suitable work when offered.”
§  The Court applied strict scrutiny.
§  The government objective of the unemployment law was to prevent the filing of fraudulent claims by unscrupulous claimants feigning religious objections, which would dilute the unemployment fund.
§  The Court reasoned that “even if there were such risks, it would plainly be incumbent upon [the state] to demonstrate that no alternative forms of regulation would combat such abuses without infringing on First Amendment rights.
§  This is the first decision to hold that a generally applicable law is unconstitutional as applied to effected religious practices.
                  Wisconsin v. Yoder (1972) (1269-1271)
§  Facts: An Amish father did not allow his son to go to high school (pursuant to Amish practice), in violation of the sta

ligious instruction (constitutional)?  No.  McCullum.
§  Allowing students to be released during the school day to go elsewhere for religious instruction?  Yes.  Zorach.
§  Bible reading and the recitation of the Lord’s Prayer where the parents could remove their children?  No.   Abington School Dist. v. Schempp.
§  Non-denominational prayer for use in public schools?  No.  Engel.
§  Speeches by clergy members at high school graduation ceremony?  No.   Lee v. Weisman. 
§  A moment of silence for “meditation or voluntary prayer”?  No.  Wallace v. Jaffree. 
§  A moment of silence per se???
§  A student invocation to “solemnize” a football game?  No.  Santa Fe School Dist. 
§  Compare Marsh v. Chambers- A prayer to be read at the opening of congressional sessions?  The Court held that it was constitutional.  This case can be distinguished from the school-prayer decisions by the fact that the audience is comprised of adults, not children. 
                  Engel v. Vitale (1962) (193-1294)
§  Facts: A school district directed that a non-denominational prayer be recited daily by each class.
§  The Court held that this was unconstitutional.
                  Abington School District v. Schempp (1963) (1294-1295)
§  A state law provided that the bible be read at the opening of each public school day.  Any child could be excused upon written request of the parent.
§  The Court held that this was unconstitutional.
                  Wallace v. Jaffree (1985) (1295)
§  A state law authorized schools to set aside one minute of each day “for meditation or voluntary prayer.”
§  The Court held that this was unconstitutional, citing legislative history as evidence of the intention to reintroduce prayer into school.
                  Lee v. Weisman (1992) (1295-1303)
§  A middle school principal invited a rabbi to deliver prayers at the school’s graduation ceremony, pursuant to the school district’s longstanding custom of inviting members of the clergy for this purpose.
§  The Court held that this was unconstitutional.
§  A 4-member of the majority voted on the basis of the “no endorsement” analysis.  The 5th member of the majority was Kennedy, who voted on the basis of the “no coercion” analysis (psychological coercion in this case).  The dissent (based on the “no coercion” analysis) dismissed the argument regarding psychological coercion.
                  Santa Fe Independent School District v. Doe (2000) (1303-1304)
§  The student body was empowered to vote each year on whether to have a student speaker preceding varsity football games who would “deliver a brief invocation and message to solemnize the event and who the speaker would be.
§  The Court held that this was unconstitutional.
§  The Court found that this was government action because the students used public school announcement systems, public school grounds, etc.