1. The Establishment Clause & The Free Exercise Clause
Freedom of Religion
The Establishment Clause
&
The Free Exercise Clause

2. Two guarantees of religious freedom:
Freedom of Expression
Two guarantees of religious freedom:
Establishment Clause
Guards against establishing a mandated religion.
In effect, freedom from religion
Free Exercise Clause
Guards against the government interfering in the exercise of any religion.
In effect, freedom for religion.

3. Separation of Church and State
“A wall of separation”? Thomas Jefferson
Church and government are constitutionally separated from one another.
However, the government supports churches and religion in a variety of ways, including tax exemption.

4. Establishment Clause 3 Tests to determine Constitutionality of laws:
Lemon Test
Endorsement Test
Coercion Test

5. Based on Lemon v. Kurtzman (1971)
The Lemon Test
Based on Lemon v. Kurtzman (1971)
Does the challenged law, or other governmental action, have a bona fide secular (non-religious) or civic purpose?
Does the primary effect of the law or action neither advance nor inhibit religion? In other words, is it neutral?
Does the law or action avoid excessive entanglement of government with religion?

6. The Endorsement Test Based on Lynch v. Donnelly (1984)
Does the challenged law or government action have the purpose or effect of endorsing or disapproving religion in the eyes of the
“Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. community members” ~O’Connor

7. Coercion Test Based on Lee v. Weisman (1992)
Does the law or practice have a psychological coercive effect
“The school district’s supervision and control of a high school graduation ceremony places subtle and indirect public and peer pressure on attending students to stand as a group or maintain respectful silence during the invocation and benediction.” ~Kennedy

8. Religion and Education
Establishment Clause

9. Other Establishment Clause Cases
Seasonal Displays
Lynch v. Donnelly, 1984— allowed the display of a nativity scene along with other nonreligious objects on public land
Pittsburgh v. ACLU, 1989—allowed a multi-faith holiday display
Chaplains
Marsh v. Chamber, 1983—allowed chaplains to open daily sessions of Congress and State legislatures

10. Free Exercise Clause: Changing Interpretations
Wisconsin v. Yoder (1972): accommodation of religious conduct is required except where a state could show a compelling interest and no less burdensome means to achieve that end
Employment Division v. Smith (1990): although religious exercise is generally protected, this does not prevent the passage of neutral laws that incidentally impact certain religious practices

11. The Free Exercise Clause
Limited
Actions that violate social duties or disrupt social order are not covered under the Free Exercise Clause.
Examples:
Bigamy
Using poisonous snakes during religious ceremonies
Schoolchildren who have not been vaccinated
Upheld
The Court has found many government actions to be counter to the Free Exercise Clause.
Examples:
Amish children cannot be forced to go to school after grade 8
Ministers are allowed to hold elective office
Unemployment benefits cannot be denied to someone who quit their job because of religious beliefs

12. Did the Government Violate the 1st Amendment
Does the case involve:
Establishment Clause Or
2) Free Exercise Clause
3) Both

13. Did the Government Violate the 1st Amendment
A state law disqualified members of the clergy from holding certain public offices.
Exercise Clause
Violation

14. Did the Government Violate the 1st Amendment
A high school student who has been deaf since birth asks his school district to pay for a sign language interpreter to accompany him to classes at a local religious school. A federal law requires school districts to provide for the education of all children with disabilities. The school district (which had provided him with an interpreter while he attended the public school) refuses to pay.
Establishment Clause
Non-Violation

15. Did the Government Violate the 1st Amendment
A state law authorizes a one-minute period of silence in all public schools “for meditation or voluntary prayer.”
Establishment Clause
Violation

16. Did the Government Violate the 1st Amendment
A group of high school students applies to the school principal to form a prayer club. The group agrees to follow the rules required of student clubs, which meet twice a week at the beginning of the school day during an activity period. A faculty member volunteers to supervise the group. However, the principle refuses the group’s request.
Trick Question: Violation of Free Speech
Establishment Clause

17. Did the Government Violate the 1st Amendment
A state requires citizens applying for unemployment benefits to accept appropriate jobs that are available. A citizen is denied continued unemployment compensation because she refuses to accept a job that requires her to work on the day she celebrates her Sabbath.
Violation
Exercise Clause

18. Did the Government Violate the 1st Amendment
A state passes a law that it says is designed to give parents greater freedom of choice when selecting schools for their children. Parents may use a government voucher to pay tuition at a private or religiously affiliated schools.
Non-Violation
Establishment Clause