What Does the Constitution Say?● Article VI says that no “religious test” shall ever be required as a qualification for public office.● What does this mean? – Cannot require office holder to be religious – Cannot prohibit clergy members from holding office
So What About This? http://www.youtube.com/watch?v=m1Yff-_9MZs
What Does the 1st Amendment Say?● Establishment Clause – “Congress shall make no law respecting the establishment of religion . . .”● Free Exercise Clause – “or prohibiting the free exercise thereof
How to Interpret “Establishment”● Strict Separation - “there should be a wall separating church and state.”● Neutrality – state cannot confer benefit or impose burden on religion● Accommodation/Equality – recognize importance of religion in society and accommodate its presence in government.
Strict Separation: Engle v. Vitale● What is claimed to violate the Establishment Clause?● Where is the state action here?● How did the New York Court of Appeals rule on the issue?● Why does the Supreme Court overrule the lower court?● What are some of the rationales used by the Court to support its ruling?
Neutrality● Government violates the Establishment Clause if it symbolically endorses a particular religion or if it generally endorses either religion or secularism.● See Zelman v. Simmons-Harris
Accommodation● Government violates clause ONLY if establishes a church, coerces religious participation or favors one religion over others. – See Lee v. Weisman for example of coercion. – See Marsh v. Chambers for example of originalist interpretation of the Establishment Clause.
Theories Applied: Religious Displays● County of Allegheny v. American Civil Liberties Union – Nativity scene standing alone placed in a stairway of a county courthouse. – Christmas tree, menorah and sign saying that the city salutes liberty during the holiday season placed in front of a government building.
Applying the Tests● Strict Separation Approach (three justices) – Both displays are unconstitutional because these were clearly religious symbols placed on government property. Violates wall!● Accommodation Approach (four justices) – would have allowed both displays because there was no coercion
Applying the Tests● Neutrality Approach (two justices) – stand alone nativity scene was unconstitutional because a reasonable observer seeing only a nativity scene inside a government building would conclude that the state was endorsing religion. – Multi-symbol scene was okay because it contained both religious and secular displays. ● The Dearborn Example ● The Candy Cane example
The Lemon Test● Statute (action) must have a secular purpose● primary effect must neither advance nor inhibit religion, AND● must not create excessive government entanglement. – as set forth in the case Lemon v. Kurtzman (1971)
Secular Purpose● Look at the history of and rationale for the law or action.● Examples – 10 Commandments in public schools – teaching “creation science” in public schools – moment of silence in public schools – Sunday closing laws
Effect of the Law● Recently this has been merged with the “symbolic endorsement” test under the Neutrality approach. – The governments action must not be perceived to symbolically endorse religion or a particular religion.
Excessive Entanglement● Some believe this is no longer required● Two recent cases have allowed: – public school “special education” teachers to provide remedial education in religious schools – government may give “instructional equipment” to religious schools as long as it is not used for religious purposes.● Entanglement?
The Blaine Amendment● Mo. Const. art. I, § 7: “That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such . . . “ – an example of how states can create an even higher wall between church and state.
Going a Bit Deeper● Establishment Clause v. Free Speech● Generally these cases involve private religious speech on government property or with government funds.● Generally, courts deem restrictions of these sorts as content-based and impermissible under strict scrutiny test.
Not Speech Cases● Prayer over school PA system● Prayer at school graduation – split in circuits, although football prayer case may have decided this.● Posting of Ten Commandments● Erection of government owned religious displays
Free Exercise● General Rule – government may not compel or punish religious beliefs – people may think and believe anything that they want. – Freedom to believe (absolutely protected) – Freedom to act (not absolutely protected)● When is Free Exercise Clause an issue?
What is Religion?● Test of belief - “whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one . . . .” – United States v. Seeger (1965)● What about the person applying for naturalization who refuses to take an oath to “defend the country” because it violates her pacifist beliefs?
Exception● Free Exercise Clause cannot be used to challenge a neutral law of general applicability. ● Employment Division v. Smith (1990) – no matter how much a law burdens religious practices, it is constitutional so long as it does not single out religious behavior for punishment and – was not motivated by desire to interfere with religion.
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