1. First Amendment: Free exercise and establishment
Lesson 28

2. Lesson Objectives
When you have finished this lesson you should be able to:
Explain the importance of religious freedom in the United States and to identify primary differences between the establishment and free exercise clauses.
Describe how the Supreme Court has interpreted the religion clauses, ongoing issues involving those clauses and conflicts associated, therein.
Evaluate, take and defend positions on issues arising from guarantees relating to the establishment and free exercise of religion clauses of the Constitution.

3. What is an Established Religion?
During the colonial settlement of America, England was in the throws of religious wars. Time period known as the Reformation.
Time of bloodshed as Catholic Church and Protestants struggled for political power – often by eliminating the other.
Despite the struggles Europeans continued to hold fast to the legitimacy of an established official religion.
Spain, France
Roman Catholic
German states
Lutheranism
England
Anglican Church
Church of England

4. Many Colonists were fleeing religious persecution, but followed the tradition of established churches.
Intolerance began to surface with those who did not follow the established churches in the colonies.
Taxation to support state religions
Punishment for failing to attend public worship
Punishment for heretical and non-conformist opinions.

5. Intolerance does not last long Roger Williams
Exiled from Massachusetts
Preached on freedom of worship
Founded a new society based on freedom of conscience and religious tolerance, separation of church and state.
Members had to promise to obey the majority, but only in “civil things”
1663 Rhode Island and Providence Plantations was formally established.
What does Separation of church and state mean?
A lack of and established church
State supporting one church or another

6. Why does the 1st Amendment prohibit Congress from establishing a national religion
The religious movement that took place in the mid-18th century – Great Awakening drew many into new religious groups
Methodists
Baptists
Diverse groups often lived within the same community
People became accustomed to living and working with others who were of differing religions.
Made it difficult for one church to gain favor
Jews, Catholics and other religions were not supported and tended to face discrimination.

7. Many felt that religion was important in teaching character of individuals of a free society
By the end of the 18th century many valued freedom of belief and believed it to be an essential liberty.
James Madison believed that individuals should be able to decide for themselves what to believe.
Change in the Virginia Declaration “tolerance of” to “free exercise of”
Difference?

8. How does the Establishment Clause affect the states?
Establishment Clause prohibits Congress from establishing a national religion
Some people in the 18th century thought the establishment clause would leave the states free to maintain established religions.
By 1833, When Massachusetts changed its Constitution , there were no longer any established churches in the United States.
Did not end the controversy--- but rather shifted the debate
In 1947, the Supreme Court ruled that the 14th Amendment incorporated the establishment cause against the states.

9. How have the courts interpreted the Establishment Clause?
Broad Interpretation: No government support or aid to any religion. Government may give religions same services as any other organization. Government may make it easier for people to exercise their religions.
Narrow Interpretation: Government is prohibited from giving one religious group preferential treatment. Government can support religion as long as it does so impartially.
Supports “In God We Trust”
Allows for non denomination prayer
***Both groups say that all holidays of all religions should be respected.
Literal Interpretation: Government should not establish a state religion. Government participation – allowing for certain holidays is fine. No specific religion declared.
Most Americans agree they should be separate, but do not yet agree on the degree

10. What rights does the Free Exercise Clause protect?
The right to practice religion
Supreme Court has ruled that individuals have the absolute right to freedom of belief or conscience.
Right is not absolute
May be limited to protect other important values and interests
Problem: which practices should be protected?

11. How is the right of free exercise balanced against other interests in society?
Justices of the Supreme Court have had differing opinions…
To deal with these differences they have created test to help decide if cases meet certain criteria.
This also helps decide cases where the rights of the community and the health have to be balanced against the free exercise of religion.
Particularly true in the health of minors
Rights of students in school
Is there a “compelling state interest?” or one great enough to justify limiting the individuals free exercise of religion

12. Supreme Court generally asks two questions:
1. Is the law to which religious adherents object neutral and does it apply to everyone? If it is neutral and applies to everyone, it does not violate religious rights.
2. If the law is not neutral and does not apply to everyone, did the government have a compelling interest for enacting it and did the government adopt the least restrictive means for furthering that compelling interest?
Government has the burden of proof.

13. Cases to demonstrate application of the test:
Smith v. Oregon 1990
Oregon state outlawed peyote, a hallucinogenic effects
The Native American church use peyote in religious ceremonies
A member contended this violated this religious rights
Court upheld the law as it was neutral and applied to everyone
Church of the Lukumi Babalu Aye v. City of Hialeah 1993
City prohibited the slaughter of animals in religious ceremonies
Animal sacrifice is a critical part of Santeria religion (combination of African religion with element of Roman Catholicism).
Violated free exercise clause because it did not outlaw it for everyone
City failed to show a “compelling interest in outlawing the practice”
2 justice believed it targeted the religion.