1. Homework: Assignment 3 Consider: What examples of the mixture of “church and state” can you cite?

2. Homework: Assignment 3 for tomorrow; Fri quiz – 1-4

3. The First Amendment and Religion “the separation of church and state” Not in the Constitution Questions of interest: How high is Jefferson’s “wall of separation”? What defines a “religion”? Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof…

4. Jefferson’s letter to Danbury, CT Baptists Gentlemen, … Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. … Th Jefferson Jan. 1. 1802.

5. The Establishment Clause Congress shall make no law respecting an establishment of religion…” The first phrase in the Bill of Rights – What do you think it intended? Have we gone too far? Not far enough? Incorporated via the Everson vs. Board of Ed case “Tests” used to determine whether government is “establishing a religion” Coercion Test Does the action “coerce” non-believers into belief? Lemon Test Secular purpose? Neither aid nor inhibit religion? Not excessively entangle gov and religion? Endorsement Test Could action appear to “endorse” religion? Neutrality Test government can be neither the ally nor adversary of religion. Must treat religious groups the same as other similarly situated groups.

6. The Free Exercise Clause The Court in Reynolds vs. US establishes the idea that government can prevent citizens from practicing certain beliefs. In the ruling, the court quoted a letter from Thomas Jefferson in which he stated that there was a distinction between religious belief and action that flowed from religious belief. Belief, he said, "lies solely between man and his God," therefore "the legislative powers of the government reach actions only, and not opinions." The court argued that if polygamy was allowed, someone might eventually argue that human sacrifice was a necessary part of their religion, and "to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." The Court believed the true spirit of the First Amendment was that Congress could NOT legislate against opinion, but COULD legislate against action. What must the government show if it passes laws that limit your ability to practice your religion?

8. RFRA, the ACA, and Hobby Lobby Religious Freedom Restoration Act Passed in 1993, amended in 2003 (text is incorrect; refers to a 1997 case which challenged a 2000 law? – might be referring to RLUIPA) Info on the law… Hobby Lobby vs. Burwell Facts of the case Arguments The decision

9. The decision in Hobby Lobby Does RFRA protect corporations in this situation? Yes. Justice Samuel A. Alito, Jr. delivered the opinion for the 5-4 majority. The Court held that Congress intended for the RFRA to be read as applying to corporations since they are composed of individuals who use them to achieve desired ends. Because the contraception requirement forces religious corporations to fund what they consider abortion, which goes against their stated religious principles, or face significant fines, it creates a substantial burden that is not the least restrictive method of satisfying the government’s interests. In fact, a less restrictive method exists in the form of the Department of Health and Human Services’ exemption for non-profit religious organizations, which the Court held can and should be applied to for-profit corporations such as Hobby Lobby. Additionally, the Court held that this ruling only applies to the contraceptive mandate in question rather than to all possible objections to the Affordable Care Act on religious grounds, as the principal dissent fears.

10. The dissent in Hobby Lobby The contraception mandate does not violate the RFRA. For-profit corporations cannot be considered religious entities, thus the burden the respondents claim is not substantial. The government has shown a sufficiently compelling interest in requiring this company to follow ACA The majority’s decision was precluded by the Court’s decision in Oregon v. Smith in which the Court held that there is no violation of the freedom of religion when an infringement on that right is merely an incidental consequence of an otherwise valid statute.