This document provides an overview of key clauses in the First Amendment regarding religion, including the Establishment Clause and Free Exercise Clause. It summarizes the various tests the Supreme Court has used to interpret these clauses, including the Lemon test, Endorsement test, and Coercion test. It also discusses precedent related to issues like government funding of religious organizations, religious displays, school prayer, and protection of religiously motivated conduct. The document aims to outline the major areas of debate and evolution of jurisprudence around the religion clauses of the First Amendment.

1. First Amendment
Clauses Impacting Religion
NOTE – text in blueblue will lead you to additional information. Text in redred indicate
emphasis, NOT required vocabulary as in past slides.

2. Lecture Structure
1) Sources of religious liberty
2)2) Establishment ClauseEstablishment Clause Meaning and Problem Areas
3) Establishment Clause Tests
4) Current Establishment Clause Law
5) Free Exercise of Religion

3. 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
http://www.youtube.com/watch?v=m1Yff-_9MZs

4. The First Amendment
●
Passed as part of compromise
with the Anti-Federalists.
– This group was afraid of the
new strong central government
that was created by the new
Constitution.
– Goal was to create limits on
new national government.
– NOTE – state constitutions
already had similar rights, but
these only protected individuals
from state government.
Benjamin Franklin (age 81) at the
Constitutional Convention

5. Text of the 1st Amendment
●
Establishment ClauseEstablishment Clause
– “Congress shall make no law
respecting the establishment
of religion . . .”
●
NOTE – the popular German
translation of this “das die
Einführung einer Staatsreligion
zum Gegenstand hat” is far too
limited.
●
Free Exercise ClauseFree Exercise Clause
– “or prohibiting the free
exercise thereof (die freie
Religionsausübung verbietet)
●
So what do these mean? Follow links for competing views.

6. Take Note
●
The two clauses on the prior slide, as well language about no
religious tests for elected office, is all we have in the U.S.
constitution regarding this subject.
●
Compare to the GG, which expressly:
– Allows for taxes to be levied to support religious communities Artikel
137 (Weimarer Verfassung)
– Requires religious instruction in schools GG Art. 7
– Gives some religions special public corporate status, and others
associational status. Artikel 137 (Weimarer Verfassung)

7. Establishment Clause
Problem Areas
●
Government Funding of
Religious Activities
– Particularly school related
activity
●
Government
Acknowledgments of Religion
– Religion in the public square
– Religion in the public schools
●
Activities based on historical
relationship between church
and state
●
Religious speech in public
forums
Nativity
scene
(Krippa)
inside the
Texas State
Capitol

8. Tests for all Occasions
●
The Court has struggled to
determine what “laws
respecting the establishment
of religion” mean.
●
It has at times created
specific tests as a means to
define this. (see next slides)
●
At other times it has adopted
broad principles like
neutrality.

9. Interpreting Establishment
Strict
Separation:
“there should
be a wall
separating
church and
state.”
Accommodation:
recognize
importance of
religion in society
and accommodate
its presence in
government.
Neutrality: state
cannot confer
benefit or
impose burden
on religion
Formalist Neutrality:
state may support
religion so long as
done in neutral
manner

10. Modern Establishment Clause Jurisprudence:
EversonEverson v. Board of Ed. (1947)
●
State of New Jersey has law
that pays for the transportation
to school of all children,
regardless of whether they are
attending a state or religious
school.
●
Is this a “law respecting the
establishment of religion.”
– Does aiding religion =
“respecting religion?”

11. First Principles (Everson)
●
No state church
●
No laws that aids one religion, aids all religions or prefer one religion over
another.
●
Cannot force nor influence a person to engage in religious practices or
profess (bekunden) a belief or disbelief in any religion.
●
Cannot punish anyone based on religious beliefs or disbelief, for church
attendance or non-attendance.
●
No tax in any amount, large or small, can be levied to support any religious
activities or institutions.
●
Government cannot openly or secretly participate in the affairs of any
religious organizations or groups and vice versa.

12. The Lemon TestThe Lemon Test
●
Facts – state law gives money to
religious schools for educational
material.
●
Test created by Supreme Court
– Governmental action must have a
secular (non-religious) purpose
AND
– Primary effect of action can neither
advance nor inhibit religion AND
– Action must avoid excessive
entanglement of government with
religion.
●
Holding – only way to ensure that
state money not being used for
religious purpose would be to create
comprehensive oversight scheme =
excessive entanglement

13. The Endorsement TestThe Endorsement Test
●
Whether government action has
purpose or effect of endorsing
religion or disapproving of religion
in the eyes of the community
members.
– Does the act send a message to
non-adherents that they are
outsiders, not full members of the
political community.

14. The Coercion TestThe Coercion Test
cliqr question 1cliqr question 1
●
“… at a minimum, the Constitution
guarantees that government may not
coerce anyone to support or
participate in religion or its exercise.”
– Coercion: two views
●
Feeling pressured
●
Being forced by law
●
Question: is this also what the Free
Exercise Clause protects against?

15. When Rights Conflict
●
Establishment Clause v. Free
Speech
– Generally these cases involve
private religious speech on
government property or with
government funds.
●
Capitol square shall be open
“for use by the public ... for
free discussion of public
questions, or for activities of
a broad public purpose….”
– Ohio Admin. Code Ann. § 128-4-02(A) (1994)
●
Facts – KKK asks to place
temporary cross on square.
Ohio denies request claiming
it would violate the
Establishment Clause.
NOTE – In Capitol Square they did not want to burn it!

16. Freedom of Speech or
Endorsement of Religion?
●
“Religious expression cannot
violate the Establishment Clause
where it:
– (1) is purely private and
– (2) occurs in a traditional or
designated public forum,
publicly announced and open
to all on equal terms
- Capitol Square Review Bd. v. PinetteCapitol Square Review Bd. v. Pinette
●
Prohibiting religious speech
in a public forum because it
is religious in nature =
content based restriction of
speech.
●
The Establishment Clause
does not demand private
religious speech be treated
differently.

17. Current Precedent: Funding
Formalist Neutrality
●
The government may provide
tuition vouchers for low-income
families to use to send their
children to the participating school
of their choice, even if the school
receiving the government-funded
voucher is religious. Since
individual families are choosing
where to send their children, there
is no perceived endorsement of
religion by the government.
– see Zelman v. Simmons-HarrisZelman v. Simmons-Harris
●
The government may pay for
educational materials and
computer software and hardware
at private, religious elementary
and secondary schools, as long
as it is used to implement secular,
neutral, and non-ideological
programs. The aid must be
equally available to nonreligious
organizations or schools as well.
(Mitchell v. Helms)
– NOTE: case did not overturn
Lemon, instead focused on effect,
not entanglement.

18. Government Funding Test
Cliqr Question 2
●
Must be indirect
– Cannot directly fund religious
activity.
●
Must be neutral
– Every kind of school must be
able to get the funding =
formalist neutrality
●
Homelessness (Obdachlosigkeit) is a
problem in Big City. The city decides to
contract with an outside organization to
provide services to the homeless population,
including providing shelter and food. The
organization that won the bid (Auschreibung
gewonnen) for this contract is a religious
organization that is loosely affiliated (lockere
Verbindung) with a local church. The
organization uses the public funding
(öffentliche Mittel) to operate its overnight
shelter (Obdachlosenheim), job-counseling
program, and soup kitchen. Every evening at
the shelter and the soup kitchen, the workers
lead a prayer and Bible reading for all guests.
Religious literature is distributed with every
meal. Is this allowed?

19. Current Precedent: Religious Displays
Lemon and Endorsement Tests
●
Facts – display in public area
made up of nativity scene
(Krippa), Santa and reindeer,
Christmas tree, candy canes
and “Seasons Greetings” sign.
●
Question – does presence of
religious display violate
Establishment Clause
– See LynchLynch v. Donnelley
●
Court applies Lemon test
– Purpose of overall display not overtly
religious
– Effect of overall display does not have
primary effect of favoring religion.

20. The Importance of the Tests
●
Christian nativity scene in
front of County Courthouse.
At the crest of the Nativity
scene or creche, an angel
held a banner proclaiming,
“Gloria in Excelsis Deo,”
meaning “Glory to God in the
Highest.”
●
The crèche was donated by the Holy
Name Society, a Roman Catholic
group and bore a sign indicating this.

21. ●
18-foot Chanukah menorah
outside the City County
Building next to the city’s 45-
foot decorated Christmas
tree. At the foot of the tree
was a sign bearing the
mayor’s name and containing
text declaring the city’s
“salute to liberty.”
Importance of the Tests
●
The menorah was owned by
Chabad, a Jewish group, but
it was stored, erected and
removed each year by the
city.

22. Applying the Tests
●
5 Justices apply Endorsement
test.
– All 5 find nativity scene =
endorsement
– 2 find menorah & Christmas
tree display ≠ endorsement
– 2 + 4 dissenters =
menorah/tree display OK
●
3 Justices find both displays
to be violation of
Endorsement Test
●
4 justices apply coercion test.
– Neither display is coercive.
No Est. Clause violation.

23. Court Precedent: Religious Displays
Cliqr Question 3 & 4
●
Test - Religious Displays
Erected by Government:
– must be done primarily for a
non-religious purpose
– reasonable person would see
this as not advancing or
inhibiting religion.
– the reasonable person would not
feel the display made them an
outsider in the eyes of the state.
●
NOTE – this is part of the
Endorsement Test, which was
established after the Lynch case.
●
Cross on public property
●
Erected after WWI as war memorial.
●
No other displays near it
●
Allowed?

24. Precedent: Government Endorsed Prayer
Coercison Test
●
Government initiated prayer in school is prohibited.
– Even if it allows unwilling participants to opt out. See Engel v. VitaleEngel v. Vitale
●
Government initiated prayer before legislative meetings
permissible.
– See Marsh v. ChambersMarsh v. Chambers
– More recentlyMore recently the Court said that these prayers can take place before
local government meetings as well.
●
In these cases, the Court applies the coercion test!
– What is the primary factual difference between these prayer cases?

25. 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)
●
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)

26. Protection of Religiously Motivated Conduct
●
First Principles – no
intentional restrictions
– laws passed with the intent of
restricting religiously
motivated conduct will be
judged under strict scrutiny.
●
Church of Lukumi Babalu AyeChurch of Lukumi Babalu Aye
v. Hialeahv. Hialeah
– Laws enforced with hostility
toward religion will judged
under strict scrutiny.
●
Master Cakeshop v. Colo. Civil
Rights Comm.
●
General Principle – laws that
incidentally restrict religiously
motivated conduct will be
judged under the rational
basis test.
– Rationally related to advance
a legitimate government
interest.

27. Employment Division v. Smith
●
Facts – Smith was fired from job
after being found to have taken
illegal drugs as part of religious
ceremony. He was then denied
unemployment benefits by the
state because state law says such
benefits will not be paid to person
fired for misconduct. Smith claims
state violated his free exercise
rights by punishing him for taking
part in a religious exercise.
●
Put differently, he claims his conduct
was not misconduct because it was
done as part of a religious exercise.

28. Employment Division v. Smith
●
Court holds:
– An individual’s religious beliefs cannot be used as excuse to avoid
compliance with the law.
– So long as the law is of the general and neutral sort, the mere fact
that incidentally interferes with religious practices does not mean in
violates free exercise rights.
●
A law aimed at restricting religious practices, however, would only be valid if
it were necessary to serve a compelling interest (strict scrutiny test).

29. The Aftermath of Smith
●
Congress passed a law that says any federal actions that
interfere with free exercise of religion must be judged using the
strict scrutiny test.
– Only applies to Federal actions!
●
Many states have passed similar laws.
●
ALSO, there is nothing in the Smith decision that prohibits
states from creating religious exemptions to their criminal laws!