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Flashcards in Freedom of Religion Deck (19):

Oregon v. Smith

Sacramental use of illegal drugs - Two Native Americans were fired from their jobs after ingesting peyote in a religious ceremony.

A neutral law of general applicability does not violate the First Amendment even if it has an incidental burden on religion.
• Religious beliefs do not excuse a person from not following an otherwise valid law.
• Before this case, it was strict scrutiny. This case changed the test - cannot challenge a neutral law of general applicability.
○ How do you argue this if you are representing the Plaintiffs?

Claims of religious exemption from generally applicable, facially neutral laws get rational review.


Religious Freedom Restoration Act (RFRA)

Made to overrule Oregon v. Smith and use the old standard.
• A law that substantially burdens a religious practice must be justified by a compelling state interest.


City of Boerne v. Flores

Church brought suit under RFRA after they were denied a building permit for a new church in a historic district. City challenged RFRA and claimed it was unconstitutional because Congress did not have the authority to pass it under the 14th Amendment.

Can only remedy constitutional wrongs found by the Court.
• Separation of Powers, difference between Constitutional Law and Federal Law.
○ Congress makes the law, Judiciary interprets the law
• Constitutional law can only be changed through an Amendment. Congress cannot just make constitutional law.

Congress can change federal laws that they enact.


If Congress enacts a law that is trying to address a constitutional law, what must it be?

Congruent - in agreement with the Constitution; must be in harmony with the wrong that Congress is trying to address

Proportional - cannot overstep, with the same scope
(City of Boerne)


What was the result of RFRA analysis in City of Boerne?

Strikes down RFRA as not congruent and proportional and thus not within the authority of Congress.
• Struck down only as to the States, but not as to the Federal Government
• Federal government cannot tell the states what to do, but can tell itself what to do.
○ Strict scrutiny on federal laws, but not on state laws.

Court does not overrule Katzebach (distinguishes)


What cases apply to authority of Congress to enact laws?

• Katzenbach - broad authority
• Oregon v. Smith - narrows authority
• City of Boerne - Congruent and proportional, (strict scrutiny if Federal Government)


Sherbert v. Verner

Denial of unemployment benefits to a woman who quit her job because she could not work on the Sabbath.

Government actions that substantially burden a religious practice must be justified by a compelling governmental interest.


Yoder v. Wisconsin

Free exercise requires an exemption for Amish from compulsory high school education.



Ordnance prohibiting killing animals violates Free Exercise because it targets Santeria (one religion).



Free exercise requires a ministerial exception (church's right to select its "ministers") to employment discrimination laws (employee of a Lutheran office was fired after she threatened the sue for discrimination because the church said they did not resolve issues through legal action).
• Very broad definition of minister.
• Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision.


What is the Establishment Clause?

"Congress shall make no law respecting an establishment of religion."


What are the three main theories regarding the Establishment Clause?

• Strict Separation - no ties between religion and government

• Neutrality - Government does not take sides. Little more flexible than strict separation.

• Accommodation - very deferential to government acts that want to express religion.


What are the three main issues in establishment of religion?

• Financial aid to religion
• Religion in public schools
• Religious displays


Lemon Test

No longer really used (but not overruled) For a statute to be constitutional under the establishment clause:

1. It must have a secular legislative purpose

2. Its principal or primary effect must be one that neither advances or inhibits religion

3. It must not foster an excessive government entanglement with religion


Allegheny County v. ACLU

Nativity scene on the steps of a county courthouse.

Uses O'Conner's "no endorsement" test - would a reasonable person looking at the display see it as the government promoting the religion?

Court says unconstitutional because the scene is completely religious.

Kennedy Dissent - thinks the test should be coercion, not endorsement. If you don't like it, you can just walk by.


Capitol Square Review Board v. Pinette

KKK placed a Latin cross in a public square adjacent to the Statehouse. Court found that the Free speech clause allowed this display by private individuals.
• Government action is what mattered (the government did not put up the cross)
• Dissent said it was an appearance of endorsement and should not be allowed.


McCreary County v. ACLU of Kentucky

Ten Commandments display put up in a courthouse.
• First display was only the Ten Commandments
• Subsequent display added other documents to focus on the history of American law.

Court looked at the purpose of the display. Original purpose was to display the religious texts so this was not allowed.
• Even though the County changed the display, the Court said the "reasonable" observer has a reasonable memory and would remember the original purpose.


Van Orden v. Perry

22 acres around the Texas State Capital held numerous monuments. One was a large tablet with the Ten Commandments displayed.

Court allowed this because the monuments overall represent several strands in the State's political and legal history.


Utah Highway Association Patrol v. American Atheists

Crosses put up along public highway to memorialize fallen officers.

District Court allowed the crosses, 10th Circuit reversed. SCOTUS denied cert.