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Flashcards in First Amendment; Religion Clauses & Second Amendment Deck (19):

Sherbert v. Verner (1963)

Laws that substantially burden a claimants religious practices must be justified by a compelling state interest which is the least restrictive means of achieving that interest.

> This was the test for exemption in the free exercise clause from 1963-1990

> OVERRULED by employment division v. Smith.

Strict in theory, toothless in fact.  Religious claimaints almost always lost - Courts found compelling interests.


Wisconsin v. Yoder (1972)

A state law mandating attendance by children at a public or private school until aged 16 is unconstitutional as applied to the Amish children, whose parents take them out of school after eighth grade for religious reasons.

Ct uses balancing test.  State interest = children are prepared and don't become state dependent.  Amish are good citizens.

>Note distinction between religious views (Amish) v. philosophical/personal views (Thoreau),

> After Smith this case is categorized as a "parents rights" case circa. Meyer v. Nebraska.


Employment Division v. Smith (1990)

Laws which are neutral on their face and which are generally applicable do not violate the free exercise clause even if the effects of those laws are experienced unequally harshly by particular religious claimants.

Three exceptions: hybrid rights (SDP claim - Yoder); individual assessments (lead to mayhem) and church autonomy (Hosanna-Tabor)

>Note Scalia's hatred for balancing tests/standards 

> He likes rules! They provide predictability and judicial restraint. Puts hard decisions on political process.

>Congress responds with RFRA.


Hosanna-Tabor v. EEOC (2012)

Ministerial exception - limited scope; doesn't extend to contract or tort actions.

The government may not interfere with the liberty of religious institutions to control their internal governance and to hire and fire ministers by entertaining anti-discrimination suits against such religious institutions.

>Distinguishes Smith. Here, we are dealing with interference with the internal church decisions.

In Smith, we were concerned with the regulation of outward physical acts.

One rule for institution vs. rule for individual.


Lemon Test

Government action must:

  1. Have a secular purpose,
  2. Not have the primary effect of advancing or prohibiting religion, and
  3. Not foster excessive entanglement with religion

Popular in the 1970's; however, nobody on the Supreme Court likes this test anymore; not mentioned in Everson.


Endorsement Test


Government action must not:

  1. Send a message favouring or disparaging religion,
  2. Send a message to non-adherents that they are outsiders or not full members of the political community, or
  3. Send a message to adherents that they are insiders, or favoured members of the political community.

Dilution of religious displays that make the message less sectarian, make it more likely that the display DOES NOT VIOLATE the establishment clause.


Neutrality Test

Government must neither favour nor disfavour religion. 

Government may not give some religions government benefits over other religions or discriminate amongst religions.


Historical Test

Establishment clause must be interpreted by reference to historical practices and understanding.

This was the approach used in Town of Greece v. Galloway in which the court UPHELD legislative prayer because on the day the EC was passed, first Congress conducted a legislative prayer.



Pragmatic Judgment Test

Context sensitive approach

Breyer approach in Van Orden

Some combination of:

  • Duration of display without complaint,
  • Ownership of the display,
  • Placement of the display,
  • Context


Everson v. Board of Education (1947)

It is ok for the state to extend the benefits of general laws meant to benefit all, to children attending religious schools because in so doing, the state is acting neutrally.

Decision based on neutrality and separation.  Ct doesn't want to inadvertently prohibit NJ from extending its general state law benefits without regard to religious beliefs.

  • Compare
    • Laws that establish v. Laws that respect v. General laws intended to benefit all.


Everson v Board of Educ. (1947)

Separation Argument

Separationists often quote Thomas Jefferson's "Wall of separation between church and state."

  • Which is wrong because Jefferson actually had no influence at all in the writing and passage of the establishment clause.

Separation requires a lot more from the state in separating itself from religion:

  • If the church was burning down, public fire services could not help put it out because this would be aiding religion,
  • Similiarly, it could not extend general laws that benefit all to religious groups because the would indirectly be financially aiding religion.


Town of Greece v. Galloway (2014)

Legislative prayer at the start of a government meeting IS constitutional becuase of the traditional, historic practice of its use.

Kennedy holding doesn't use a test - historical approach.

Religious legislative prayer is a practice engaged in before, during, and after applicable clause.


Van Orden v. Perry (2005)

Applies the Endorsement Test plus Breyers Context Sensitive Inquiry.

Breyer Notes that one of the main purposes in passing the establishment clause was to avoid religious strife.  Thus, to evaluate the constitutionality of a statute it is relevant to determine the extent to which it causes outrage:

  • Monument was paid for by a private group, not the government,
  • It was placed in a park that contained many other monuments (dilution),
  • It had been in place since the 1960's without any complaints
    • and when it was erected there was no controversy.


Columbia v. Heller (2008)

The 2d amendment protects an individuals right to bear arms, at home, for self-defence purposes. (NARROW)

Notice, both the majority and the dissent frame themselves as originalist interpretations, each vying for acceptance:

  • Scalia, Majority.  The purpose clause is not a limitation on the operative clause, it merely suggests one way that it can be interpreted.  IT IS the operative clause that contends.
  • Stephens Dissent:  The purpose clause and the operative clause should be read together.  There is a collective right to bear arms as part of a militia, but it is not an absolute right.


Second Amendment

Purpose Clause,

Operative Clause

Purpose Clause

  • A well regulated militia being necessary to the security of a free state

Operative Clause

  • The right of the people to keep and bear arms shall not be infringed.


United States v. Miller (1939)

Court upholds a Federal Law prohibiting possession of short barrelled shotguns.  These are not arms that would be used in a militia.


Clear examples of an Establishment of religion

  1. State control over the substance of religious doctrine, governance, or personnel.
  2. Compulsory church attendance,
  3. DIRECT financial support from the state,
  4. State imposed penalities for dissenting views,
  5. State use of churches (not vice-versa),
  6. Restriction on political participation for particular religious groups.


Two Views of Free Exercise Exemption from Generally Applicable Laws

1. John Locke: no constitutional right to an exemption on a generally applicable law.

- no law that targets/penalizes someone for faith

2. Roger Williams: under certain circumstances, exemptions from certain laws is constitutional

- balancing test from Sherbert


Establishment Clause Issues

1. gov't displays of religious symbols

2. gov't speech which includes religious language

3. religion in the public school curriculum

4. indirect financial support by the gov't (vouchers for religious schools, tax exemptions, and credits)

5. establishment clause tests - Ct hasn't settled on one.