1. Constitutional Law II Free Exercise Clause

2. Fall 2006Con Law II2 Free Exercise Clause “…or prohibiting the free exercise thereof.” Principal Inquiry: To what extent does gov’t burden religious exercises and beliefs Types of government interference: Prohibition/penalty on belief Prohibition of exercise (religious practices) Burden/regulation of exercise

3. Fall 2006Con Law II3 Free Exercise Clause “…or prohibiting the free exercise thereof.” Principal Inquiry: To what extent does gov’t burden religious exercises and beliefs Types of government interference: Prohibition/penalty on belief  Compare forced or prohibited speech Prohibition of exercise (religious practices)  Compare O’Brien test: regulation of symbolic speech Burden/regulation of exercise  Compare TP&M test: regulating mixed speech/action

4. Fall 2006Con Law II4 Early Cases Reynolds v. US (1878) No religious exemption from general polygamy laws  “Congress was deprived of all power over mere opinion (belief), but was left free to reach actions which were in violation of social duties or subversive of good order. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and actions, they may with practices.” Cantwell v. Connecticut (1940) JehWit. arrested for distributing anti-Catholic material  “the free exercise clause embraces two concepts-- freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be. Conduct remains subject to regulation.”

5. Fall 2006Con Law II5 Sherbert v. Verner (1963) Facts: S.Carolina denied unemployment insurance to Sherbert because her faith prohibited her from working on Saturday (her sabbath). S.Car. exempted Sunday worshippers, not Sat. Free Exercise concerns: Burden (on religious practices & faith) Discrimination (among religions)

6. Fall 2006Con Law II6 Sherbert v. Verner (1963) Distinguish Braunfeld v. Brown (1961) Sunday closing law served a state purpose unrelated to religion – uniform day of rest  Burden on Braunfeld was less than on Sherbert  Some preference was unavoidable in Braunfeld, but no comparable administrative need in Sherbert What if state had enacted a Saturday closing law? Ad Hoc Balancing The greater the burden on religious practices, the greater the state’s interest and relationship to means must be to survive (variable) scrutiny

7. Fall 2006Con Law II7 Wisconsin v. Yoder (1972) Facts: Amish challenged Wisc compulsary attendance law as interfering with their beliefs & practices Plurality (CJ Burger) [3 votes] modern high school education “gravely endan- gers free exercise of [Amish] religious beliefs”  State interest: participation in economics & politics Strong, but probably not compelling  MEANS: compulsary education through age 16 little gained for Amish ages 14-15, even for those who later join society Not closely related to ENDS

8. Fall 2006Con Law II8 Wisconsin v. Yoder (1972) Concurrence (White) [3 votes] Ad hoc balancing of state/private interests  mid-level scrutiny Dissent (Douglas) [1 vote] Whose right involved? Child’s or Parents?  Minors’ const’l rights not diminished  Minors’ const’l rights often shared with parents  Parents also have SDP right to raise children (Pierce)  What to do in case of putative conflict? Elkgrove v. Newdow (2003): assume parent can assert child’s rights, unless state court has noted conflict is this a SDP case?

9. Fall 2006Con Law II9 Standard of Review Did the Court correctly apply SS in Sherbert and Yoder? At what point does a burden on relig practices become a burden on religious beliefs? Seems to be subjective test  compare “undue burden” test in abortion cases Factors:  Type of state action: Criminal, regulatory (economic), failure to fund  Centrality of practice to religion

10. Fall 2006Con Law II10 Empl. Division v. Smith (1990) Facts: Unemployment insurance denied because of use of peyote for sacramental purposes. Scalia’s analytical framework Relig. practices combine conduct w. belief Gov’t cannot force or punish belief as such Is regulation of conduct anti-belief or non-belief?  Anti-belief if the conduct is punished only when engaged in for religious reasons  Non-belief if the regulation is directed at the conduct generally, and not directed at religious practices compare O’Brien test

11. Fall 2006Con Law II11 Empl. Division v. Smith (1990) Standard of review for (non-belief) regulation of conduct (affecting, but not aimed at belief) Sherbert’s ad hoc balancing rejected  Is Scalia persuasive on Sherbert ? Applied only to unemployment compensation cases because of their “individualized application” Hardship relief can’t automatically be denied to relig practice  Degree of burden on religion (e.g., “centrality”) inappropriate for judges to determine Apparently, no heightened scrutiny at all

12. Fall 2006Con Law II12 Applying Smith Church of the Lukumi Babalu v. Hialeah (1993) Santeria religion uses animal sacrifice in worship  Hialeah prohibited ritual sacrifice, but not other killing Unanimous Court found law directed at religion  Applied strict scrutiny Locke v. Davey (2004) Denial of state scholarship for religious degree  Lukumi not controlling in funding cases (vs. regulation)  Although funding would not violate Est. Clause, state had substantial interest in not using tax dollars for relig  Scalia dissent: refusal to fund is “hostile” to religion

13. Fall 2006Con Law II13 Applying Smith Religious Practices & Free Speech Wooley v. Maynard; WV v. Barnette; Myriad Jevohas Witness cases Good News Club v. Milford Cent. Sch. (2001)  Denial of funding violates free speech even if not FE

14. Fall 2006Con Law II14 Free Exercise & the Military Gillette v. US (1971) FE clause did not require religious exemption from the draft Goldman v. Weinberger (1986) FE clause did not require military to allow the wearing of Jewish yarmulkes

15. Fall 2006Con Law II15 Statutory Responses to Smith Religious Freedom Restoration Act (1993) Provides statutory right of action against state regulations burdening religious practices  Strict Scrutiny even if no violation under Smith Held unconstitutional in Boerne v. Flores (1997) Religious Land Use & Institutionalized Persons Act (2000) Similar to RFRA but based on spending clause Cutter v. Wilkinson (2005):  6 th Cir invalidated as benefiting religious needs only  SCt. reversed, holding accommodation of religion ok even if other const’l rights not similarly accommodated