Modern Free Exercise LawI. IntroductionA. New Era (erosion of federalism in religious liberty law) where

religious liberty is influenced more by US SC rather than states. First 150 years, 31 religious liberty cases NONE using the first amendment. Last 70 years, 130 religious liberty cases, MOST using first amendment. Why?

B. Incorporation – apply many of the Bill of Rights to states. C. Consequences – states have not stopped legislating on religion, but

must keep one eye on constitutional law. Problem is, 70 years of religious liberty law has been fraught with inconsistencies.

II. Mapping Modern Free Exercise DoctrineA. Key points of conflict - Cases feature conflicts between private

religious practice/belief and governmental power/action. Claimants argue that some law “prohibits” their free exercise of religion by burdening (inhibiting acts of worship; commanding them to do something that conflicts with their doctrines/practices; discriminates by burdening their religious activities but not those of others).

B. Easy cases – Jehovah Witnesses forced to swear an oath or Jews forced to remove a yarmulke.

C. Hard cases – unemployment insurance is denied to an applicant because he refuses to work on Saturday for religious reasons; a secular humanist refuses to serve in the military; a religious university refuses to accept blacks because it thinks the Bible requires separation of races; a business requires devotion attendance for all employees.

*One rather consistent doctrine is that free exercise claims must be “sincere” rather than contrived (this means religious probing). Again, court has to explore and define what is religious (naturalist faith and a farmland shrine? Personal religious convictions. Etc.)

III. Free Exercise Case lawA. Scrutiny level – if “low-level” (rational basis), then law is upheld if it

is reasonably related to a legitimate government interest; if “high-level” (strict scrutiny), the law is upheld only if gov’t interest is compelling and if it is narrowly tailored to achieve that interest (last resort and least offensive). So, what level of scrutiny did court use in Reynolds (the Mormon cases)?

B. Scherbert and Smith – since Reynolds, court moved in a heightened scrutiny direction.

1. Scherbert vs. Verner (1963) – Scherbert gave us the strict scrutiny test in FE cases (compelling interest and narrowly tailored). This favored religious minorities.

2. Employment Division v. Smith (1990) – Court rejected strict scrutiny and adopted a low-level test. A law is valid so long as it is facially neutral and generally applicable. If not, strict scrutiny test.

3. Evaluation of Smith - The ‘Smith test” was used to overturn a local anti-Santeria law in FL, but critics remain. They see the test as a return to Reynolds (open season on practice) and hurting religious minorities (if generally applicable, tough). Congress reacted to Smith with the Religious Freedom Restoration Act (1993), but the SC ruled that the Act was audacious and unconstitutional when applied to the states. So, we are left with Smith test for state law (low-level) and RFRA in federal law.

4. Court reluctant to apply Smith because it seemed to disfavor minorities, but Smith is still the most frequently used test for Free Exercise featuring state law challenges. From mid-1990s to Locke vs Davey (2004), court even signaled that it might consider “unequal access” to government funds as a violation of free exercise, but Locke presents serious setback to that trend.

Modern Establishment ClauseI. IntroductionA. Nature of conflict – government has taken an action

“respecting an establishment of religion” (e.g., coercing participation in religious activity; improper public use of religious places or things; allied with religious causes or groups; discriminates in favor of one religious interest over others).

B. No other body of Const. Law is more ambiguous or difficult to follow

C. Standards vary broadly under three headings1. Separationism – government may take no actions that aid religion, either directly or perhaps even indirectly. 2. Accommodationism – government may show or provide non-preferential support for religion. 3. Differing views of ‘Neutrality’ (gray area)

I. Strict Separation – Justice Hugo Black articulated this doctrine in the 1947 Everson v. Board of Education of Ewing Township decision. Used Jefferson’s metaphor from his letter to the Dansbury Baptists as the lens through we interpret the establishment clause. Years later, the court constructed an allegedly clearer and more relaxed test for deciding establishment clause cases. Neutrality means secular according to this view.

Black’s language: "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a 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 a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'" 330 U.S. 1, 15-16.

A. Lemon test – A law is constitutional (not guilty of establishment) if:• It has a ‘secular purpose’• It’s ‘primary effect’ neither ‘advances nor inhibits religion’• Does not ‘foster an excessive entanglement with religion’B. Lemon’s criticisms – 1. Why a secular purpose and what is a secular purpose? Justice

Potter, we may be moving toward “an establishment of the religion of secularism.” Does Lemon exempt newer philosophies like liberalism/secularism? Does this empty traditional public religious promotions like civil religion of all substance (Nebraska chaplain does not aid religion)? In 1961 (McGowan v. State of MD), Justice Earl Warren UPHELD Sunday closing laws. But, he did so using Lemon finding no violation of the first prong. “Secular justifications have been advanced for making Sunday a day of rest, a day when people may recover from the labors of the week just passed and may physically and mentally prepare for the week’s work to come…” MD’s law “merely happens to coincide or harmonize with the tents of some or all religions.”

2. Can excessive entanglement be avoided? If government must be sure to avoid advancing religion, then won’t it be progressively entangled with it? Is this feasible in the age of the modern state (if gov’t gets in, religion get out; but gov’t gets in everywhere today)

3. Result – often ignored, partially applied, inconsistently interpreted, heavy criticism from all sides on the court (Paul Marshall quote p. 129 of his book). Most on the SC today have largely, though not explicitly, abandoned the test (favoring either the old strict separation principle, or accommodation, or equal treatment/positive neutrality principle).

*Strange case of Civil Religion – laws, like congressional prayer, Sunday closing, etc., were upheld and said to secular in nature, not religious.

II. Accommodation - like Strict Separation, this groups recognizes a real philosophical difference in religion and secularism, but insists that the only intention behind the establishment clause is to prevent the establishment of a particular church/denomination/religion. Beyond that, governments are free to promote/support religion non-preferentially. Clearest articulation in Rehnquist’s critique of Black and Stewart’s dissent in Engel v. Vitale (“I cannot see how an ‘official religion’ is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our nation…Since the days of John Marshall, our Crier [of the SC] has said, ‘God save the U.S. and this Honorable Court’…It was all summed up by this Court just ten years ago in a single sentence, ‘We are a religious people whose institutions presuppose a Supreme Being.’”

Rehnquist dissent in Wallace (handout)IV. Equal Treatment or ‘Positive Neutrality’ (government must be

evenhanded between religion and irreligion). A. Based on philosophy in part and supported by a series of SC

decisions (especially Rosenberger). 1. Philosophy – religion is utterly pervasive in all human endeavors but

takes many forms (some include a god, gods, no god). Religion is functionally synonymous with the concept of ‘worldview’. In an atmosphere of proliferating religious pluralism (progressively since founding), government neutrality requires that it be evenhanded between worldview adherents. This respects everyone’s free exercise of religion in the public space. Example of Univ. of Alabama physiology prof. As James Reichley put it, “Banishment of religion does not represent neutrality between religion and secularism; conduct of public institutions without any acknowledgement of religion IS secularism.” This is increasingly relevant in an age where government activity and religious activity increasingly overlap. Tend to argue that the intention of the founders is that government be neutral (evanhanded) between real worldviews operating in society (at first, only Christian denominations, but then different religions, and today religious and secular worldviews).

2. Series of cases from early 90s to 2000: equal access to school and university facilities, required a school to rent facilities to a church to show religious film, required a state to fund the religious education of a blind student, overturned previous decision now allowing public school teachers to provide remedial instruction in religiously based schools.

3. Public policy support (Charitable Choice Act 1996) – federal government may not exclude faith-based charities from contracting with government to provide social services if it opens itself up to bids from other private sector (secular) charities.

4. Rosenberger vs Univ of Virginia (1995) – Kennedy “We have held that the guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.” Basically, UVA could choose to fund none, or all, but if it chose to fund secular organizations it must also fund religious ones. Souter’s dissent – “The Court today, for the first time, approves direct funding of core religious activities by an arm of the State….The Univ exercises the power of the State to compel a student to pay [for] it, and the use of any part of it for the direct support of religious activity thus strikes at what we have repeatedly held to be at the heart of the prohibition on establishment.”

• The only other viable establishment standard worth noting is O’Conner’s ‘endorsement’ test. In it, she wants to know only if the government’s actions would be construed by the ‘objective observer’ as endorsement of religion. So, in Wallace vs. Jaffree, Alabama’s moment of silence was unconstitutional to her because the statute said students should pause for a “moment of silence or prayer.” If prayer had been excluded from the language, she said she had no problem with it. But saying prayer implied endorsement of a religious activity.