1 st Amendment and Religion Mr. Calella Constitutional Law

Discussion Questions Write down some of your thoughts in response to the the following questions: 1. Why and how are religious freedoms of fundamental importance to a constitutional democracy? 2. What are the perils with establishing a state- endorsed religion?

Philosophical Chairs Activity Question #1 Should the government use our tax money to provide funds and financial aid to religious schools?

Philosophical Chairs Activity Question #2 Should an atheist student be required to participate in the Pledge of Allegiance?

Philosophical Chairs Activity Question #3 Can a state pass a law forbidding the instruction of evolution? Should a state pass such a law?

The 1 st Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The Establishment Clause

The Spectrum of Argument Accommodationist Approach: argues that it is appropriate for government to accommodate or assist religious interests or organizations. Separationist Approach: argues that government should remain separate or removed from religious activity (no government funding, aid or assistance of religious organizations or activities) Where would you place yourself on this spectrum? Why?

Jefferson’s Famous Quote When interpreting the Establishment Clause, the Supreme Court uses Thomas Jefferson’s metaphor of a “wall of separation between church and state” What do you think this means? Where does Jefferson stand on the spectrum we discussed in the prior slide? Come up with your metaphor to illustrate where you stand on the spectrum.

The Lemon Test In Lemon v. Kurtzman (1971), the Court made a 3- prong test for determining whether a particular policy constitutes establishment of religion To pass the Lemon test, the policy must: 1. Have a secular purpose, 2. Its principal effect must not advance or inhibit religion, and 3. It must avoid excessive entanglement between government and religion. Do you think the hypotheticals we discussed earlier would pass the Lemon test? Discuss.

Establishment Clause and Schools The Supreme Court has struggled with the issue of whether various kinds of government support for private, parochial schools violate the Establishment Clause or fall into the “child benefit” exception Over the years, the Court has struck down laws that officially sponsor religious exercise in public schools (e.g., school prayer, moment of silence, clerical prayer at commencements, student-led prayer during games)-Newdow v. U.S. Congress (9 th Cir. 2002) The Court has also struck down laws forbidding the teaching of evolution and those that promote the teaching of “creation science”-Epperson v. Arkansas (1968)

The Free Exercise Clause

Two Possible Views 1. Accomodationist Approach: government will accommodate people practicing religion when public policy interferes with religious exercise. 2. Separationist Approach: government will not interfere with religious belief, but it will force people to comply with religiously neutral laws. USSC used this approach in 1879 to uphold a law outlawing polygamy after a Mormon challenged the law (Reynolds v. U.S. 1879) Do you agree with ruling? Why or why not?

Balancing Test Cantwell v. Conn. (1940) Jehovah’s Witnesses arrested for breaching the peace when they solicited funds for their religious purposes Court used more of an Accomodationist Approach here Court implemented a balancing test to see whether person has a free exercise right Balancing Test from Cantwell: the religious and communication rights of the person vs. the government interest The government’s interest must be COMPELLING Law requiring denying Seventh-Day Adventist unemployment benefits because he could not work on Saturdays was NOT compelling (Sherbert v. Verner 1963) Law requiring Amish family to send kids to school after 8 th grade was NOT compelling (Wisconsin v. Yoder 1972)

A Separationist Approach: Smith Neutrality Test Employment Division v. Smith (1990) 2 Native Americans were denied unemployment after they were fired from their jobs at a drug rehabilitation clinic after they ingested peyote during an off-duty religious ceremony In a 5-4 decision, USSC ruled against the Native Americans Court explained the state legislatures can provide religious exemption to their laws, but they are not required to; no exemption here Court gets rid of balancing test and replaces it with the NEUTRALITY TEST (as long as the law is neutral and does not target specific religious practices, the law is constitutional)

The Religious Freedom Restoration Act Congress passes the RFRA in 1983 in response to the Smith case RFRA makes the Balancing Test law (we are back to an Accomodationist Approach!) Even if a law is neutral, the government must show that there is a compelling interest for the law if it burdens a person’s freedom of religion. The USSC has ruled that the RFRA does NOT apply to states and only to the federal government Gonzales case in 2006-USSC ruled that federal government did not have a compelling interest when it banned the import of hallucinogenic tea (hoasca) used by Native Americans during religious ceremonies