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First Amendment
University of Oklahoma College of Law
Tepker, Harry F.

First Amendment Outline
Prof. Tepker
Spring, 2010

I. Free Exercise Clause
A. Test Summarized
1. If a law is not neutral, it must be necessary to achieve compelling government interests
· A law is not neutral if it discriminates against religion or if it targets religious practice because it is religious
· A law may appear neutral on its face but still have a discriminatory purpose (Lukumi)
2. If a law is neutral, the state’s refusal to grant accommodations is constitutional if there is a rational basis for believingthat it serves legitimate government interests.
· A law is neutral if it is generally applicable
B. Cases
1. Church of the Lukumi Bablu Aye v. City of Hialeah (1993)
· Miami passed ordinances that prevented slaughter of animals for rituals/sacrifice
· Although the law appeared generally applicable, its purpose was to target the Santeria religion
2. Locke v. Davey (2004)
· Washington provided college scholarships, but not for students pursuing degree in devotional theology
· Does not violate the Constitution—no criminal or civil sanctions imposed
· The state is merely choosing not to fund a distinct category of academic instruction
3. Reynolds v. United States (1878)
· Court rejects a challenge by a Mormon requesting exemption from federal law making bigamy a crime
· Permitting an exemption would “make the professed doctrines of religious belief superior to the law of the land”
4. Braunfield v. Brown (1961)
· Local Sunday-closing laws do not discriminate in violation of the Free Exercise Clause despite disadvantage suffered by persons with religious duties to refrain from work on other days
· Plurality: Sunday-closing laws do not force a person to surrender their religious rights in order to enjoy a government benefit
5. Sherbert v. Verner (1963)
· A member of the Seventh Day Adventist Church was discharged and denied unemployment benefits because she refused to work on Saturday, the Sabbath Day of her faith
· 2 step test—Is there an infringement of the free exercise right? If so, is the burden justified by a compelling state interest?
· Burden on religion—ineligibility for benefits derives solely from the practice of her religion
· No compelling interest—preventing fraud can be solved in other ways without violating First Amendment
§ Distinguish Braunfield—Sunday-closing law was only way to accomplish government interest of having one day of rest per week from work
· Dissent—this case is indistinguishable from Braunfield
6. Wisconsin v. Yoder (1972)
· Amish refused to send daughter to school until she was 16, in violation of Wisconsin compulsory education statute
· Burden on religion—compulsory education requires Amish to perform acts at odds with tenets of their religious beliefs
· No compelling interest—Amish agree to send their kids to school through the eighth grade so an additional one to two years would not serve state’s interest very much
· Accommodating Amish is not an “establishment” of religion
7. United States v. Lee (1982)
· Amish seeking to be exempt from social security taxes
· Burden on religion—Yes
· Compelling interest—mandatory participation in the social security system is indispensible to fiscal vitality of the system

ny group of the American people to recite”
2. Abington School Dist. v. Schempp (1963)
· The Establishment Clause prohibits state laws requiring the reading of verses from the Holy Bible and the recitation of the Lord’s Prayer
· Foreshadows Lemon test—purpose and primary effect of the law was to advance religion
3. Wallace v. Jaffree (1985)
· Court strikes down Alabama statute that authorized the use of one minute for “meditation or voluntary prayer.”
· Lemon test—law is not motivated by a secular purpose and conveys government endorsement of religion
· O’Connor concurrence: true moment of silence would be constitutional
· Dissent: government may aid religion if it does not discriminate among sects
4. Lee v. Wiseman (1992)
· Rabbi delivered prayers at high school graduation
· Majority opinion—prayer exercises in public schools carry a particular risk of coercion by placing pressure on students to participate or at least maintain respectful silence
· Concurrence—coercion is a sufficient, but not a necessary, condition of an Establishment Clause violation
5. Epperson v. Arkansas (1968)
· A statute that prohibited the teaching of evolution violates the Establishment Clause
The law singled out one segment of the body of knowledge “for the sole reason that it is deemed to