1. Freedom of Religion First Amendment Civil Liberties How has the First Amendment’s freedom of religion been incorporated as a right of all American citizens

2. A “Wall of Separation”? Thomas Jefferson: a “wall of separation between Church and State” exists, forbidding any government support for religion. Some argue that there is no “wall” and that the government has every ability to aid and support religious institutions, charities, and schools and to allow public religious displays and school prayer.

3. Establishment Clause “Congress shall make no law respecting an establishment of religion...”

4. Engle v. Vitale (1962)

5. Constitutional Questions – Does the reading of a nondenominational prayer at the start of the school day violate the “establishment of religion” clause of the First Amendment. The Decision – (6-1 decision) Yes. Neither the prayer’s nondenominational character nor its voluntary character saves it from unconstitutionality. By providing the prayer, New Your officially approved religion. The Case The Board of Regents for the Sate of New York authorized a short, voluntary prayer for recitation at the start of each school day. This was an attempt to defuse the politically potent issue by taking it out of the hands of local communities. The blandest of invocations read as follows: “Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us our teachers, and our country.”

6. Abington School Dist. V. Schempp (1963) Constitutional Question – Did the Pennsylvania law and Abington’s policy, requiring public school students to participate in classroom religious exercise, violate the religious freedom of students as protected by the First and fourteenth Amendments? The Decision – (8-1 decision) Yes. The required activities encroached on both the Free Exercise Clause and the Establishment Clause of the First Amendment since the readings and recitations were essentially religious ceremonies and were “intended by the State to be so” The Case At the beginning of the school day, students who attended public schools in the state of Pennsylvania were required to read at least ten verses from the Bible. After completing these readings, school authorities required all Abington Township students to recite the Lord’s Prayer. Students could be excluded from theses exercises by a written note from their parents to the school.

7. Lemon v. Kurtzman (1971) Constitutional Question – Did the Rhode Island and Pennsylvania statues violate the First Amendment’s Establishment Clause by making state financial and available to “church-related educational institutions”? The Decision – (8-0 decision)Yes. The Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the “continuing state surveillance” necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. The Case This case was heard concurrently with two others, Early v. DiCenso (1971) and Robinson v. DiCenso (1971). The cases involved controversies over laws in Pennsylvania and Rhode Island. In Pennsylvania a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools. The Rhode Island statute provided direct supplemental salary payments to teachers in non- public elementary schools. Each statute made aid available to “church-related educational institutions.”

8. Free Exercise Clause “... Nor prohibit the free exercise thereof.”

9. Reynolds v. United states (1879) Constitutional Question – Does the federal anti-bigamy statute violate the First Amendment's free exercise clause because plural marriage is part of religious practice? The Decision – (9-0 decision) No. The statute can punish criminal activity without regard to religious belief. The First Amendment protected religious belief, but it did not protect religious practices that were judged to be criminal such as bigamy. Those who practice polygamy could no more be exempt from the law than those who may wish to practice human sacrifice as part of their religious belief. The Case George Reynolds, secretary to Mormon Church leader Brigham young, challenged the federal anti-bigamy statute. Reynolds was convicted in a Utah territorial district court. His conviction was affirmed by the Utah territorial district court. His conviction was affirmed by the Utah territorial supreme courts.

10. Wisconsin v. Yoder (1972) Constitutional Question Did Wisconsin’s requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons? The Decision (7-0 decision) Yes. The individual’s interests in the free exercise of religion under the First Amendment outweighed the State’s interests in compelling school attendance beyond the eighth grade. The Case Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Ytuzy, a member of three Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth district, arguing that high schools attendance was contrary to their religious beliefs.

11. Employment Division v. Smith (1990) Constitutional Question – Can a state deny unemployment benefits to a worker fired for using prohibited drugs for religious purposes? The Decision – (5-3 decision) Yes. Justice John Paul Stevens delivered the opinion for a 5-3 court. The Court instructed the Oregon Supreme court to determine whether peyote usage for religious purposes is prohibited under Oregon law, or only by the employer. That the Oregon law was in fact violated means that the firing was constitutional. The Case Alfred Smith and Galen Black worked at a private drug rehabilitation clinic. The clinic fired them because they used a hallucinogenic drug called peyote for religious purposes while worshipping at their Native American Church. The Oregon Employment Division denied them unemployment compensation because it deemed they were fired for work-related “misconduct.” The Oregon Court of Appeals ruled that this violated their religious free exercise rights provided by the First Amendment. The Oregon Supreme Court reversed

12. Conclusions Freedom of religion is and has been a deeply divisive issue on the Court. The Court has tried to weigh the rights of individuals against the needs of society. To determine whether a law violates the freedom of religion, the Court uses the Lemon test (from Lemon v. Kurtzman): – Does the law have a secular rather than religious purpose? – Does the law neither promote nor discourage religion? – Does the law avoid “excessive entanglement” of the government and religious institutions?