1. The First amendment Freedom of religion
Third-Year Law – Class 5

2. Questions about last week
Why is the concept of “state action” important in First Amendment cases?
Give examples of free speech and low speech activities.
Is hate speech unconstitutional?
How can the American government regulate speech?
What are the two bedrock principles of a free press?
Is a discriminating association protected under the U.S. Constitution?

3. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

4. Freedom of Religion: Two Clauses
The Establishment Clause:
It prohibits the government from creating an official or established church, preferring one religion over another, or benefitting believers instead of non- believers.
The Free Exercise Clause:
It prohibits the government from interfering with the expression of religious beliefs.
Sometimes these two clauses conflict.

5. The Establishment Clause
Everson v. Board of Education (1947) was the first Establishment Clause case.
In this decision, the Supreme Court incorporated the Establishment Clause. It cited Jefferson’s phrase of “a wall of separation between church and state.”
In addition to Everson, the Court has used a variety of legal tests regarding Establishment Clause issues:
- the Lemon test (the law needs to have a legitimate secular purpose, its primary effect is not to advance or inhibit religion, it does not create an excessive government entanglement with religion);
- the absence of government endorsement;
- the absence of government coercion.

6. Religion and Education
By far most Establishment Clause cases are about religion in schools.
Schools cannot be involved in or sponsor religious activities. In Engel v. Vitale (1962), the Supreme Court ruled that official prayer in public schools violated the Establishment Clause, even if students were not forced to participate in such prayers. However, the Supreme Court has never outlawed voluntary prayer by individual students. The study of religion or of the Bible can be included in public school instruction, as long as it is carried on in a secular manner.
Schools cannot prohibit the teaching of evolution (Epperson v. Arkansas, 1968) and cannot require the inclusion of creation science in the curriculum (Edwards v. Aguillard, 1987).

7. The Free Exercise Clause
The government cannot deliberately target religious practices.
The Supreme Court used to provide strong constitutional protections for religious practices which were in conflict with general rules.
- Sherbert v. Verner (1967): a Seventh-Day Adventist who quit a job that conflicted with her beliefs was entitled to unemployment benefits.
- Wisconsin v. Yoder (1972): the Amish do not have to comply with a compulsory attendance law beyond the eighth grade. (The Supreme Court did require them to pay social security taxes, despite their belief in self-sufficiency).
This changed in 1990 with Employment Division v. Smith (1990).

8. Exercise 1
The Establishment Clause prevents the government from creating an official or established church, preferring one religion over another, or benefitting believers instead of non-believers.
If a law deliberately targets religious practices, it may be struck down by the Supreme Court.
If a state attempted to ban the teaching of the theory of evolution in its public schools, it would not respect the Establishment Clause of the First Amendment.
The Free Exercise Clause protects the American people’s expression of religious beliefs.
Since the Supreme Court’s decision in Employment v. Smith (1990), a law may interfere with an individual’s religious practices or beliefs.

9. Exercise 2
At a basic level, the establishment clause and the free exercise clause have been interpreted to protect religious liberty in different but complementary ways. The establishment clause prevents the government from establishing a state religion or using the powers of the government to support a particular religion, and the free exercise clause prohibits the government from intruding on individual religious choices. By forbidding state support of religion, the establishment clause gives greater latitude to an individual’s exercise of religious choice, and by committing religious belief and practice to the realm of individual choice, the free exercise clause reduces the possibility that religion will become an area of state power. Freedom of religion is so fundamental to our understanding of the American way of life that it may be surprising that the Supreme Court dealt with few religion cases until the middle of the twentieth century. By then, of course, the role of government had vastly expanded; states as well as the federal government regulated, intervened in, and financially supported a host of activities that previously had been wholly committed to the private sector. In doing so, the potential conflict between the establishment clause and the free exercise clause became apparent. If a stare provides special education services to students in a religious school, isn’t it supporting an establishment of religion? But if it does not, is it abridging the free exercise of religion by parents whose beliefs compel them to send their children to religious school?

10. Stormans, Inc. v. Wiesman
Issue: Whether a law prohibiting religiously motivated conduct violates the Free Exercise Clause when it exempts the same conduct when done for a host of secular reasons, has been enforced only against religious conduct, and has a history showing an intent to target religion.
Petition DENIED. Justice Alito, with whom The Chief Justice and Justice Thomas join, dissenting from the denial of certiorari.

11. 1. Who filed suit in this case? On what grounds?
A group of religious pharmacists from Washington state filed suit because they believe that their right to free exercise is being infringed. In the past, pharmacists in the state were permitted to refuse to stock or supply certain medicines if they had a moral objection to doing so. Any client seeking the medicine in question would be referred to another pharmacist. In particular, certain pharmacists refused to stock or supply emergency contraception, because they believed that it was tantamount to providing an abortion.
However, since 2007 new state pharmacy board regulations mean that this is no longer possible. Pharmacists with moral objections may ask a colleague to fill the prescription, if one is available, but they must aim to have the drug in stock and cannot refer clients to other pharmacies.

12. 2. What are the arguments in defense of the law?
Allowing pharmacists to refer clients elsewhere means that they may not receive medication in time (emergency contraception is less effective with the passing of time) - thus the law furthers a state interest. A federal appeals court found that the law was neutral and applied to all pharmacists equally and did not specifically target those whose objections were religiously motivated.

13. 3. Do you think that the First Amendment has been violated
3. Do you think that the First Amendment has been violated? (Washington does not have an RFRA).
The key issue is whether the law targets religious practice. If the aim of the law was to target religious objectors and force them to deliver emergency contraception, then there is a strong argument that the First Amendment has been violated. On the other hand, since Employment Division v. Smith (1990), religious motivation has not excused compliance with a valid and neutral law of general applicability. If it is neutral law with no intention to target specific religious practices, and if its is applied to all pharmacists equally, there is no violation.
The case might have been different if it had taken place in a state with an RFRA - here there would be a possibility of a religious exemption, unless the state could prove that the law was the best way to achieve a compelling government interest.

14. Employment Division v. Smith (1990)
Al Smith, a member of the Klamath tribe, was fired from his job as a substance abuse counselor for using peyote, a hallucinogenic cactus, as part of a religious ceremony. Smith argued that his taking peyote during a Native American ritual was no different than a Catholic alcoholism counselor receiving wine at communion.
He was denied unemployment benefits because Oregon law prohibited the use of peyote.
The Supreme Court ruled that when a criminal law was at issue, the government did not have to prove a compelling interest, unless the law specifically targeted religious groups.

15. Answers
1) a claim for relief: a request for a remedy from a court; to ban: to prohibit; to bar application of a law: to prohibit a law being applied (in a particular set of circumstances)
2) Under the Free Exercise Clause, the government may not prohibit religious activities only when, or only because, they are religiously motivated.
3) The respondents argue that the clause also protects religious activities from the effects of laws which do not have the aim of prohibiting religious activity, but which do so as an incidental effect. (The overall aim of the law in question is to prohibit the abuse of a wide variety of drugs – it only has the incidental effect of criminalizing a religious practice. Nonetheless, the respondents believe that they should be exempt from it.)

16. Answers (2)
4) If a law is valid, generally applicable and not drawn up with the aim of prohibiting religious activity, an individual must respect it, whatever his/her religious beliefs may be. 5) In the first two cases, the Court allowed exemption from a neutral, generally applicable law if both the right to free exercise and another constitutional protection had been abridged. In Cantwell v. Connecticut (1940) the freedom of speech was infringed. In Wisconsin v. Yoder (1972) the freedom of parents to direct the education of their children (acknowledged as being protected under the Fourteenth Amendment’s due process clause) was infringed. In Sherbert v. Verner (1963) the conduct in question (refusal to work on a Saturday) was not prohibited by law.

17. Case Study: Elmbrook School District v. Doe
Issue: (1) Whether the Establishment Clause prohibits the government from conducting public functions such as high school graduation exercises in a church building, where the function has no religious content and the government selected the venue for reasons of secular convenience; (2) whether the government “coerces” religious activity in violation of Lee v. Weisman and Santa Fe Independent School District v. Doe where there is no pressure to engage in a religious practice or activity, but merely exposure to religious symbols; and (3) whether the government “endorses” religion when it engages in a religion-neutral action that incidentally exposes citizens to a private religious message.
Jun Petition DENIED. Justice Scalia, with whom Justice Thomas joins, dissenting from the denial of certiorari.

18. Homework for next week: The Second Amendment
Read the lesson (ps ) and learn the important words by heart.
Complete the sentences (p. 37).
Read the texts about the cases District of Columbia v. Heller (ps ) and Shew v. Malloy (ps ).
Answer the grammar exercises (ps ).
Two presentations:
- District of Columbia v. Heller
- Shew v. Malloy

19. Homework for the week after: The Fourth Amendment
Read the lesson (ps ) and learn the important words by heart.
Complete the sentences (p. 53).
Read Text 1 (ps ) and Text 2 (ps ).
Two presentations:
- “Justices Allow DNA Collection After an Arrest”
- “Supreme Court Says Phones Can’t Be Searched Without a Warrant”

20. Homework for the following week: The Fifth Amendment
Read the lesson (ps ) and learn the important words by heart.
Complete the sentences (p. 68).
Read Text 1 (p ) and Text 3 (ps ).
Two presentations:
- “Supreme Court Says Double Jeopardy Does Not Protect Against Murder Trial”
- “California Supreme Court Cuts Back Fifth Amendment Right to Remain Silent When Questioned by Police”