First Amendment – Tepker

Spring 2000

OUTLINE

The First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Freedom of Religion

I.Introduction to Freedom of Religion

  1. 1st Amend includes two clauses regarding religion, both having different focal points:
  1. Establishment Clause - prevents gov from creating religion, endorsing specific doctrines, or favoring religion over non-religion;
  2. Free Exercise Clause - conduct – gov cannot regulate practices of religion, or burden person’s pursuit of chosen religion..
  1. Why did Framers pass 1st Amend w/ these focal points?
  1. Did they intend to restrain religion? – gov shall not be able to make religion or engage in religion.
  2. Did they intend to promote religion? – free from paralyzing hand of the state. Religion in private sector.
  3. Did they intend to create policy of neutrality regarding religion?
  4. Was religion meant to be public? Or to be private?
  5. Did Framers believe religion good to processes of self-gov or did they fear influence of religion?
  6. Framers feared religious persecution. Does this mean only acts of persecution violate 1st Amend regarding religion?
  1. Jefferson & Madison founded religion clause of 1st Amend.
  1. Jefferson – believed in freeing mind as to religion – free from religious orthodoxy in search of truth. Save state from religion.
  2. Madison – religion is essential to virtue. W/o religion, democracy fails.
  1. 14th Amend applied religion clauses to states.
  1. Doctrine of ordered liberty – a right so fundamental that we could not conceive of democracy w/o it. Key to determining whether something is fundamental right is ordered liberty, which requires one to look at: (1) text of Constitution; (2) history surrounding ratification; (3) history after ratification.
  1. Philosophies – religious freedom breeds intellectual freedom; religious freedom is an end in itself & cures factions in society. Rooted in natural law – duty owed to God higher than duties owed on this world. Religious freedom allows individuals to seek their own religious beliefs.
  1. Conflict – if case presents conflict b/w free exercise & establishment clause, free exercise wins.
  1. Establishment Clause –guaranteeing no nat’l religion.
  1. Major areas of controversy – (1) public financial assistance to church-related institutions & (2) religious practices in public schools.
  1. Religion & Public Schools
  1. School Prayer decisions – 1960s – coercion & compelling students to pray was criticized. Student presence was key – state cannot compose prayer & lead children in presentation of religious ritual.
  1. Everson v. Board of Educ. (US, 1947) – held taxes for Catholic school kids to ride public transportation did not violate establishment clause. Establishment Clause means at least this: “Neither state nor Fed Gov can set up church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither state nor Fed Gov can, openly or secretly, participate in affairs of any religious organizations or groups & vice-versa.”

(1)Holding – Under EC, state cannot taxes funds to support church. On other hand, it cannot hamper citizens in free exercise of religion. Consequently, it cannot exclude any individual religious follower or believer or non-believer, b/c of their faith, or lack of it, from receiving benefits of public welfare legislation.

(2)Rationale – F.E. trumps E.C. problem. Secular purpose – protecting all kids from traffic hazards.

  1. Wallace v. Jaffree (US, 1985) – Statute allowing one-minute period of silence in public schools “for meditation or voluntary prayer” constitutes endorsement of prayer in schools; such endorsement is inconsistent w/ E.C. – gov completely neutral toward religion.

(1)Lemon test - 3 criteria for construing breadth of E.C.: (1) statute must have secular legis purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion; (3) statute must not foster “excessive gov entanglement w/ religion.”

(2)Rationale – Ct evaluated statute only under first criteria b/c when statute does not pass first criteria, unnecessary to look further. In applying purpose test, appropriate to ask “whether gov’s actual purpose is to endorse or disapprove of religion.” Purpose OK if both religious & secular purpose.

(3)Concur – pushes for “endorsement test” that does not preclude gov from acknowledging religion or from taking religion into account in making law & policy. Even if text & official history of statute express no secular purpose, statute should be held to have improper purpose only if it is beyond purview that endorsement of religion or religious belief was & is law’s reason for existence.

(4)Lemon test – lacks precision as test & is now in form of transition. Major criticism of test is that there is no analysis for what has a “primary effect” (second prong).

  1. Released Time

(1)McCollum v. Bd of Educ. (US, 1948) – held to violate E.C. program allowing teachers to discuss religion w/ children whose parents approved during specified time period when non-approved students studied secular subjects in another area of school.

(2)Zorach v. Clauson (US, 1952) – upheld release time program where sessions taught in religious buildings rather than on public school campuses.

(3)Use of public property – permitting religious group to use school facilities during non-school hours conveys no message of religious endorsement.

  1. Policies of Public Schools to “Accommodate” Religion – need not violate E.C. – even though purpose & effect may seem to favor religion – if: (i) they do not involve religious programs in public schools & (ii) they further, rather than threaten, free exercise of religion.
  1. Secular Purpose – decisions that invalidate public school practices b/c “purpose” found religious.

(1)Stone v. Graham (US, 1980) – held to violate E.C. statute requiring posting of Ten Commandments in every public school classroom, although legis history showed secular connection w/ Ten Commandments being its basis as fundamental legal code & Common Law of US. “No legis recitation of supposed secular purpose can blind us to [fact that] Ten Commandments are undeniably a sacred text.”

(2)Professor does not believe commandments & prayer in school is a proper topic for cts – Not constitutional issue. Ct should not become a “super school board.”

(3)Edwards v. Aguillard (US, 1987) – held unconst statute that forbade teaching evolution theory in public schools unless accompanied by instruction in creation science b/c no clear secular purpose. “While Ct is normally deferential to State’s articulation of secular purpose, it is required that statement be sincere & not a sham. . . Legis history documents that Act’s primary purpose was to change science curriculum of public schools in order to provide persuasive advantage to particular religious doctrine that rejects factual basis of evolution.”

(a)Positive authority for state to pass law is found in Amend that reserves to state all powers not vested expressly in the federal gov. State police power – state can take any & all reasonable steps to further “benefit, health, welfare, & morals.” State selects particular means of action in order to provide specific end.

(b)Lemon test is close scrutiny test b/c puts burden on state but not as tough as strict scrutiny.

(4)Is it meaningful to distinguish b/w secularreligious purposes? In democratic societies, elected officials have excellent secular reason to accommodate religious groups & individuals – wish to be re-elected & do not want important groups to feel community rejects their values.

  1. Purpose, Primary Effect & Equal Access

(1)Board of Educ v. Mergens (US, 1990) – under Equal Access Act allowed public school to give time to a student Christian Club to meet after school on school property for purpose of reading & discussing Bible.

C.Financial Aid to Religion

  1. Walz v. Tax Com’n (US, 1970) – upheld state tax exemption on property used exclusively for religion, education or charity. “Legis purpose of property tax exemption is neither advancement nor inhibition of religion; it is neither sponsorship nor hostility.”
  1. Concur – Tax exemptions provide economic assistance & do not implicate 1st Amendment b/c do not involve transfer of public money to religious organization.
  2. Dissent – Tax exemptions to church are suspect given history of such arising when church was agency of state so that tax exemptions should be considered a subsidy & violative of 1st Amend.
  1. Texas Monthly, Inc. v. Bullock (US, 1989) – tax exemption for books & periodicals published & distributed by religious faith & consisting wholly of writings of faith violate Establishment Clause. “When gov directs subsidy exclusively to religious organizations that is not required by Free Exercise Clause & that either burdens non-beneficiaries markedly or cannot reasonably be seen as removing significant state-imposed deterrent to free exercise, it provides unjustifiable assistance to religious organizations & cannot but convey message of endorsement to slighted members of community.”
  1. Kiryas Joel Board of Educ v. Grumet (US, 1994) – drawing school district case. Invalidated b/c religious community did not receive gov authority simply as one of many communities eligible for equal treatment under general law - no assurance that next similarly situated group seeking school district of its own will receive one.
  1. Larkin v. Grendel’s Den, Inc. (US, 1982) – statute that allows churches & schools power to veto liquor license applications w/in 500 feet of school or church violates E.C. b/c delegated discretionary gov power to religious bodies, giving them authority to advance religion.
  1. Dissent –liquor license law did not sponsor or subsidize religion or compel or encourage religion.
  2. Compare – zoning laws that bar liquor outlets w/in certain distance of churches probably valid b/c of secular “environmental” purpose.
  1. Jones v. Wolf (US, 1979) – 1st Amend prohibits civil cts from resolving church disputes on basis of religious doctrine & practice. As corollary, Amend requires that civil cts defer to resolution of issues of religious doctrine by highest ct of hierarchical church. Subject to these limitations, State may adopt various approaches for settling church disputes so long as it involves no consideration of doctrinal matters.
  1. Religious Coalitions today revolve around voucher issues – whether gov can provide aid to education by way of vouchers given to parents of school-age children. Parental choice.
  1. Precedents in this area are chaotic:

(1)Waltz v. Tax Commission – tax exempt

(2)Lemon v. Kirtzman – three part test

(3)Lambs Chapel – Lemon test applied sporadically – likened to monster in horror movie that rises from dead.

  1. 2 observations:

(1)Coherent pattern – if symbolic identification b/w state & religion then violate E.C.

(a)Grand Rapids case – endorsed this view.

(b)Aguillard case

(2)Agasteiny (sp??) – throws out symbolic identification approach in lieu of focusing on whether or not funding supplements school or whether it relieves burden on school so that funding goes to core mission of school.

  1. Professor believes Lemon test still stands:

(1)Is there secular legis purpose? Almost always yes – education.

(2)Is primary effect to advance or inhibit religion? Symbolic identification at one point was used in answering this question. Sup Ct now seems to want more persuasive proof – Does this relieve private school of burden it would otherwise have to bear?

(3)Entanglement – two views:

(a)Bureaucratic entanglement – inhibition/regulation/censorship = entanglement

(b)Political entanglement – competing religious factions are caused to clash = excessive entanglement. Ct must search politics & social angle so that this inquiry has receeded.

  1. Mueller v. Allen (US, 1983) - Tax deduction statute (allows residents to deduct private education expenses) does not violate E.C. b/c it passes Lemon test & b/c statute more like those previously held not to violate EC than like violative ones.

(1)Lemon test: (1) State’s decision to defray education costs – regardless of type of school – evidences purpose that is both secular & understandable. (2) Statute does not have primary effect of advancing sectarian aims of non-public schools for several reasons: (a) deduction is one of many; (b) channeled thru parents, gov not giving religious schools money directly; (c) facially neutral law cannot be held unconst b/c of statistics.” (3) Statute does not excessively entangle state in religion.

(2)Why does parental choice “launder” religious purpose? If funds available equally to non-religious & religious schools, funding comes from free economic choice & not from gov – Equal Access.

(3)Does analysis change if it is a tax credit & not a tax deduction?

  1. Zobrest v. Catalina Foothills School Dist. (US, 1993) – Gov may provide all deaf students w/ sign-language interpreters, including students attending parochial schools.

(1)Rule – Gov programs that neutrally provide benefits to a broad class of citizens defined w/o reference to religion are not readily subject to E.C. challenge just b/c sectarian institutions may also receive attenuated financial benefit.

(2)Dissent – Majority decision allows public sector emp’ee to enter private, secular school atmosphere. E.C. absolutely prohibits gov-financed or gov-sponsored indoctrination into beliefs of particular religious faith.

  1. Rosenberger v. Univ of Virginia (US, 1995) – E.C. does not prohibit state university to refuse to pay out of its Student Activities Fund printing costs of Christian newspaper. Fund is neutral towards religion in that it was not created to advance or adopt religion.
  1. Official Acknowledgement of Religion
  1. Reindeer Rule – religious symbols next to Santa & reindeer are sufficient dilution of religious message so as not to constitute violation of E.C.
  1. Allegheny County v. ACLU (US, 1989) – (1) By displaying manger scene on front steps of main gov building in town, county chose to celebrate Christmas in way that patently endorses Christian message: Glory to God for birth of Jesus Christ. This violates E.C.. (2) Display w/ tree, sign & menorah is more appropriate b/c inclusion of tree in display (preeminent secular symbol of Christmas) emphasizes secular component of message.
  1. Rule – Appropriate E.C. inquiry questions whether challenged gov practice either has purpose or effect of “endorsing” religion. At very least, E.C. prohibits gov from appearing to take position on questions of religious belief or from “making adherence to religion relevant in any way to person’s standing in political community.”
  2. Rationale – (1) Justice O’Connor’s concurring opinion in Lynch provides framework for evaluating gov use of religious symbols: (a) any endorsement of religion is invalid b/c it sends message to nonadherents that they are outsiders; (b) whether gov action has effect of endorsing religion. (2) Where gov can convey secular message w/ two symbols, only one of which is religious, an observer reasonably might infer from fact that gov chose religious symbol that gov promotes religion. But where gov makes no such choice & uses both symbols, no inference of endorsement.
  3. Dissent – Substantial revision of E.C. doctrine may be needed; but unnecessary to undertake that today, for even Lemon test, when applied w/ proper sensitivity to tradition & caselaw, supports conclusion that both creche & menorah are permissible displays in context of holiday season. Rejects majority’s notion that intent of E.C. is to protect individuals from mere feelings of exclusion.
  4. O’Connor Concur – To require showing of coercion, even indirect coercion, as essential element of E.C. violation makes Free Exercise Clause a redundancy. Majority’s new rule that inference of endorsement arises every time gov uses symbol w/ religious meaning if “more secular alternative” is available, is too blunt an instrument for E.C. analysis, which depends on sensitivity to context & circumstances presented by each case.
  5. Brennan Concur – Display of object w/ specifically Christian or religious meaning is incompatible w/ separation of church & state.
  1. Ct’s discussion parallels murky second prong of Lemon. Alternatives to Lemon’s second prong:

(1)O’Connor – primary effect of endorsement – appearance to reasonable person – also makes reasonable person feel like outsider.

(2)Dissent – “psycho coercion” – state is coercing individual in some way to either be present or participate in religion.

  1. Reconstruction of Lemon will occur in rewriting of second prong.
  1. Ceremonial Deism (fn. C, pg. 673) – not Constitutionally dangerous b/c religious significance diluted. This refers to references of God in Pledge of Allegiance, on our money, etc.
  1. Lee v. Weisman (US, 1992) – held violative of E.C. having clergy offer prayers at graduation ceremonies. Gov involvement w/ religious activity is pervasive, to point of creating state-sponsored & state-directed religious exercise in public school where subtle coercive pressures exist & where student has no real alternative to allow her to avoid appearance of participation.
  1. Capitol Square Review & Advisory Board v. Pinette (US, 1995) – KKK display on public property did not violate E.C.. “State did not sponsor expression, expression made on gov property opened to public for speech, & permission requested thru same application process & on same terms required of other groups.” Ct divided over scope of endorsement test:
  1. 1 view - no violation for gov to enact neutral policies that happen to benefit religion.
  2. 2 view – E.C. applies only to words & acts of gov & was never meant to serve as impediment to purely private religious speech connected to State only thru its occurrence in public forum.
  3. 3 view - “where gov’s operation of public forum has effect of endorsing religion, even if gov neither intends nor encourages that result, E.C. is violated b/c State’s own actions & relationship to private speech, actually convey message of endorsement.”
  4. 4 view – if reasonable person could perceive gov endorsement of religion from private display, state may not allow its property to be used as forum for that display.
  1. Free Exercise Clause

A.Purpose – If purpose of statute or other gov action is to single out religion for adverse treatment, or to hinder (or discriminate against) particular religion, it violates Free Exercise Clause unless it is narrowly tailored to advance compelling state interest. Such laws will survive strict scrutiny only in rare cases.

B.Conflict w/ State Regulation – Most common problem w/ free exercise of religion involves generally applicable gov regulation, whose purpose is nonreligious, that either makes illegal (or burdens) conduct dictated by some religious belief or requires (or encourages) conduct forbidden by some religious belief.

  1. Tension b/w E.C. & F.E.C.– E.C. restrains gov from advocating religion. F.E.C. prevents gov from restraining religion. When gov exercises free exercise clause, it may violate E.C. by favoring one religion.
  1. example – Rosenberger case – held no obligation under E.C. to refrain from publishing Christian journal. In denying publication to Christian journal, university was restraining freedom of expression & free exercise of religion.
  1. Cantwell v. Connecticut (US, 1940) – “Const forestalls compulsion by law of acceptance or practice of any religion. Law cannot restrict freedom of conscience & freedom to adhere to such religious organization as individual may choose. F.E. embraces two concepts: (1) freedom to believe & (2) freedom to act. First absolute but, second cannot be.
  1. West Virginia State Bd of Educ. v. Barnette (US, 1943) – held compelling school children to salute flag where it conflicted w/ kids’ religious scruples violated 1st Amend. “Compulsory flag salute & pledge requires affirmation of a belief & attitude of mind. No official can prescribe what shall be orthodox in politics, nationalism, etc. or force citizens to confess by word or act their faith therein.”
  1. Hybrid cases – freedom of privacy coupled w/ free exercise arguments.
  1. Employment Division v. Smith (US, 1990) – Peyote case. Represents demotion of F.E. from fundamental right requiring strict scrutiny to ordinary liberty subject only to rational basis review.
  1. Current Rule – FE affords no right to religious exemption from a neutral law that imposes substantial burden on religious practice – as long as law is otherwise constitutionally applied to persons who engage in action for non-religious reasons. F.E. not violated by law of general applicability – need only be justified by inferential proof of rational basis.
  2. Rationale – Gov may not compel religious belief, punish expression of religious doctrines it believes false, impose special disabilities on basis of religious views, or lend its power to one side in controversies over religious authority or dogma. As to religious acts, state would prohibit F.E. if it sought to ban such acts or abstentions only when engaged in for religious reasons, or only b/c of religious belief that they display.
  3. Concur – Strict scrutiny required - Law that prohibits certain conduct—conduct that happens to be act of worship—manifestly prohibits that person’s free exercise regardless of whether law prohibits conduct only when engaged in for religious reasons, only by members of that religion, or by all persons.
  4. Dissent – Advocates adherence to strict scrutiny of statute that burdens free exercise of religion – statute may stand only if law in general, & State’s refusal to allow religious exemption in particular, are justified by compelling state interest that cannot be served by less restrictive means.
  5. Prior Approach - Sherbert balancing test – when gov regulation, enacted for secular purpose, either burdened conduct required by some religious belief or required conduct forbidden by some religious belief, Ct balanced 3 factors:

(1)Severity of burden;