1Am re religion: 2 clauses
1) establishment clause
2) free exercise clause
1A relig: scope
applies to feds AND states (14 DPC)
establishment clause: rule
“Congress shall make no law respecting an establishment of religion”
free exercise clause: reul
“Congress shall make no law…prohibiting the free exercise thereof (of relig)
establishment clause: 2 tests
1) if gvt is preferring one (or all) religions over another (or none) –> STRICT SCRUTINY
2) if neutral on it’s face –> PEEL
establishment clause: PEEL test
1) purpose: must be secular
2) effect: primary purpose or effect must not be to advance or inhibit relig
3) entanglement: must not foster excessive gvt/relig entanglement
4) Lemon (case name)
relig in schools: exs of UNCONST
1) moment of silence (prayer hx)
2) post 10 commandments in classroom
3) HS grad prayers
4) student led, studnet chosen prayer at HS footballg ame
relig in schools: school prayer
per se unconst
relig in schools: ex ok
religious club holding meetings in public school
relig in schools: curriculum
- -can’t teach relig doctrine as truth
- -can’t prohibit teaching evolution
- -ok teach about different religs (just not “truth”)
relig in public life: exs ok
1) include creche in xmas display (secular)
2) display cross in park where many other displays
3) display 10 coms w other monuments
4) sunday closing laws (secular purpose: day of rest)
relig in public life: exs UNCONST
1) 10 coms on wall of courthouse (no secular purpose)
2) delegation of authority to religious orgs
delegation of authority to religious orgs?
unconst
tax deductions for religious orgs?
ok if neutral
NOT ok if just religion exempt
gvt aid to religious schools: ok provide $ to both private and public schools for:
1) bus
2) secular textbooks
3) standardized tests
4) school lunches
5) lirary, media, computers
6) deaf interpreter
gvt aid to relig schools: UNCONST (+exception)
1) fund religious instruction
2) secular teachers in religious schools at secondary level
exception: ok at university level (professional norms: no teach doctrine)
gvt aid to religious schools: tax deducitons
ok if for actual school ependitures, even if most using for relig schools
gvt aid to religious schools: vouchers
ok bc parents make choice of where to send child
providing public services through religious institutions?
ok if treat them neutrally
free exercise clause: tests
1) beliefs: absolutely protected (gvt can’t deny benefits or impose burdens)
2) conduct: Smith test
FEC: beliefs: exception
ok inquire into sincerity of claim of belief (but not truth or falsity)
FEC: Smith test (+ exception)
where indiv’s conduct is motivated by relig beliefs:
1) state MAY regulate or prohibit activity IF
2) regulation is neutral wrt religion AND
3) is of general applicability
excpetion: gvt is targeting religion (no neutrality–pretext)
FEC: conduct: exs OK to restrict
restrictions on:
1) polygamy
2) airforce headgear
3) Amish employer must pay SS tax
FEC: conuct: exs UNCONST to restrict (+ posture note)
these were old cases expressly not overruled by Smith – now spl rules
1) sabbath observance still must be eligible for EDD
2) Amish HS: parents exempt from compulsory edu
