Religion Clauses Flashcards
(35 cards)
Give and Pull System
Free Exercise v Establishment Clause - too much neutrality and no accommodation may violate free exercise, but too much accommodation may violate the establishment clause
(2) Successful Free Exercise Claims
Must be shown that Religious belief is:
(1) sincerely held at face value
(2) central to one’s religious beliefs
Popularity/Dominance of Religious Sect
Does not matter for purposes of free exercise clause
(2) Is there a FrEx violation?
(1) Depends on if govt action had intent to burden a religious practice + (2) had burdensome effect on religious practice
((1) purpose + (2) effect)
Govt Intent to Burden Req
negatively affect a particular type of conduct bc that conduct is dictated by religion
Unintended Burdensome Effect
no intent but has effect okay so long as statute is neutral, generally applicable (not about/focus on religion)
Scrutiny for Generally Applicable, Neutral Laws
RB, govt action typically upheld
Sherbert
unemployment benefits withheld because woman had religious belief to not work on Saturdays. Court found regulation burdened FrEx -> SS
Smith Case effect on Sherbert
Generally applicable laws will all be RB, BUT govt regulation affecting availability to state benefits based on applicant’s willingness to work under conditions forbidden by religion still elicits SS.
Govt action affecting: Religious Conduct + Protected Provisions of Conduct under Const
Like upbringing of children, these regulations will be subject to SS
Law Neutrality Considerations
(1) text
(2) purpose
(3) exceptions
(4) history
(5) legislative context
(6) breadth
(7) Is this part of a scheme to discriminate
Fulton: Narrowing of Smith
If the govt reserves discretion to theoretically grant exemptions for secular reasons, it must also consider religious exemptions , or rule will be most likely struck under SS
Masterpiece Cake Shop
Anti-Discrimination laws would have prevented behavior, but implementers of judicial process were mean.
-govt actors cannot demonstrate animus towards religious beliefs, even if law is generally applicable
Hosanna-Tabor (religious leadership decisions)
applying anti-discrimination law to church employment decisions violates FrEx
Denial of Funding to Religious Entities (Carson v. Makin)
If state funds secular private schools, it must fund religious ones too, but not those that provide religious instruction
Locke on Religious Funds
Govt must fund religious schools if funding secular or funds are reserved for secular, with the exception of vocational schools
RFRA Religious Freedom Restoration Act
Under this law, any govt action that substantially burdens religion, generally applicable or no, is subject to SS
-can include monetary damages if SS isn’t met
State v Fed: RFRA
Does not apply to states. State must pass their own RFRA to invoke it
RLUIPA
applies RFRA-like SS to land use and prison contexts
(3) Main Q’s for violation of RFRA
(1) Does the govt action substantially burden challenger’s exercise of religion?
SS:
(2) Is there a compelling govt interest?
(3) Is the govt action the least restrictive means to serve that interest?
(4) Establishment Clause Specific Prohibitions
(1) no official church
(2) no coercion
(3) no punishment for beliefs
(4) no religious preference
Bremerton Historical Practices and Understandings Approach
The establishment clause must be interpreted by reference to historical practices and understandings that accord with history and faithfully reflect understanding of the founding fathers
Use of School Facilities by Student Groups
no issue if school policy allows religious groups to use physical facilities if the policy is neutral as between rel and non-rel groups, even elementary school
Equal Access Principle - Funding School Activities
Once the govt opens a forum (even limited), it must treat all viewpoints equally–including religious ones.
