By Jason Jackson,2014-11-01 01:49
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RBT analysis1.Does the law serve a legitimate interest or purpose ...Analysis: Brennan said:Wondered whether obscenity is utterance within the area...

A. The First Amendment (1791)

     “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 of the right of the people to peaceably to assemble, and to petition the Government for a redress of grievances.”

    ; The first Amendment was drafted by James Madison

    ; Why does it only refer to Congress making a law, instead of speaking about all government

    action as is commonly understood today? This is most likely because the federal government

    didn‟t have nearly as much power as much as it does now; so that the federal government would

    not be encroaching on free speech.

    ; Why did Madison and his colleagues put speech and religion into the same amendment? The

    two may not be that dissimilar because most of the practice of religion is through speech.

    ; The free exercise clause may be redundant because there is no free exercise case retainable under

    the speech clause (what the fuck does this mean?)

    ; What is an establishment of religion? The paradigm case would be the Anglican church in


    ; What about “respecting an establishment of religion?” Scalia, Thomas, Rehn, maybe Kennedy

    think that speaks to established religions as seen in England, Saudi Arabia, or any place with an

    established church. If that is the correct interpretation, however, why are the words “respecting

    an” in the clause? That is the problem with this position. Example: Most justices would say that

    school vouchers given by state or federal government for use in religious/nonreligious schools do

    not respect an establishment of religion, because this is a law of general application and there is

    nothing in the law saying they must be used for religious purposes, even though these vouchers

    tend to aid religion greatly.

    ; What about prohibiting free exercise thereof? When you go to jail for committing a crime,

    inmates are allowed to practice their religion there because state and federal governments allow

    them to do so through enacted legislation; this is not necessarily because the first amendment

    protects it. This may be because of a preference for religion in the US.

    ; What about abridging the freedom of speech? Why is there a “the” before “freedom of speech.”

    Well, you get no special protection for calling people names on the street, because only speech

    that has been historically favored will be protected. We are basically talking about political

    freedom of speech. Therefore there are a lot of cases regarding what constitutes speech in the first

    amendment, and there are categorical exclusions for things that are speech that get no freedom of

    speech protection. Example: a city of LA ordinance that says you can’t talk about Jane

    Austen in Pershing square regulates the content of speech and will draw SS.

    ; What about “or of the press?” You must also ask whether there is a difference between a

    freedom of speech and freedom of press? You could say that perhaps the freedom of press protects

    the investigative work that the press does, for example.

Religion Clauses

    1. Govt. Action/Inaction

    a. Free exercise

    1. DAR1 (Lukumi)==>triggers SS

    2. DAR2 (Locke)rational basis

    3. Not-DAR (Smith)

    b. Establishment clause

    I. Argument Structure

    Religion Clauses

    1. Free Exercise Clause Arg‟t Stucture - Applies only to restrictions on free exercise of religion.

    Before Smith

    Is the law directed at religion in general? DAR draws SS

     If yes, use SS.

     what if it is DAR in the space between FEC and EC like in Locke.

SS analysis

    1. Is there a compelling govt. interest?

    ; If no, law is struck down.

    ; If yes, go to next step [(b)].

    2. Is the law a necessary and narrowly tailored means of accomplishing that goal?

    ; If no, the law is struck down.

    ; If yes, the law is upheld under SS (rarely occurs).

    3. If no, go to next step [2].

    ; Is the law facially discriminatory against certain religions?

    If yes, use SS.

    If no, go to next step [3].

    ; Is there evidence of a discriminatory purpose?

    If yes, use SS.

    4. If not, the law is a law of general application. Go to next step [4].

    ; Is there a great burden on the practice of religion? (How great does the burden have to be? Not

    sure, but if the practice being restricted is central to the religion, it is likely to be seen as a great

    burden. See Reynolds, Braunfeld, and Sherbert for guidance.)

    ; If yes, use SS. If the law does not pass SS as a law of general application, it is not struck down.

    However, the govt. must carve out an exception to the law for religion.

    ; If not, use RBT.locke

    RBT analysis

    1.Does the law serve a legitimate interest or purpose?

    ; If yes, go to next step [(b)].

    ; If no, law is struck down.

    2. Is the law rationally related to the interest or purpose?

    ; If yes, law is upheld.

    ; If no, law is struck down.

    After Smith

    1. Is the law directed at religion in general?

    If yes, use SS.

    If no, go to next step [2].

    2. Is the law facially discriminatory against certain religions?

    If yes, use SS.

    If no, go to next step [3].

    3. Is there evidence of a discriminatory purpose?

    If yes, use SS.

    If not, the law is a law of general application, and use RBT.

I. The Freedom of Religion

    a. Ask: What is religion? What is the free exercise of religion? What is the establishment of religion

    of which we should be concerned with?

    b. Definition of Religion

    c. US v. Seeger (1965)- conscientious objector

    Facts: Congress passed a Universal Military Training Act; there was a draft act during the Vietnam war

    that provided for a conscientious objector exemption. It exempted from service those who were

    conscientiously opposed to “wary in any form” by reason of their “religious training and belief.” The

    latter phrase was defined by the law as a belief in a relation to a Supreme Being involving duties

    superior to those arising from any human relation, but not including essentially political, sociological,

    or philosophical views or a merely personal moral code.” This was a law of general application based

    on age unless you had certain physical/mental illness. Seeger said that he did not believe in a Supreme

    being but believed in an ethical creed.

    ; Justice Clark interpreted the term “religion” very broadly and found that Seeger was

    entitled to the exemption.

    ; The test is whether a given belief that is sincere and meaningful occupies a place in the

    life parallel to that of a supreme being.

    ; You could make two arguments for Seeger 1) under the statute, Seeger is exempt 2) it

    violates the free exercise clause because your practice of religion is infringed if you are

    forced to be involved in a war you don‟t believ in.

    ; Does this favor religious conscientious objectors over non-religious objectors and thus is

    tantamount to establishing religion?

    ; Problems: This may be a UNC law because it is not one of general app, then doesn‟t it

    favor religion. This may create a problem under the establishment clause.

    ; Next layer:When thinking about violations of the establishment clause remember the

    next layer: “religion is in the everyday fabric of life in this country.” There is a baseline

    of religious activity in this country that is marbled into life. The religion clauses were put

    in there to favor religion. Remember that even if federal and state law isn‟t required to, it

    can still favor religion. Even though we think that the religion clauses impose a

    neutrality toward religion, there is actually a vector towards accommodating religion in

    our every day lives. Religion is a favorably viewed activity, that state/fed governments

    may accommodate although they are not required to do so.

    ; Argument Structure: This is a statutory interpretation case. If someone makes you fight

    a war that is against your religious beliefs, doesn‟t that place a burden on the free

    exercise of religion that should draw strict scrutiny. Even today, however, a draft act

    without this exemption would most likely not violate the free exercise clause because the

    government would most likely have a compelling interest. The UMTA is a law of general

    app, at one time if the burden on religion was great enough it would have drawn SS, now

    it would not after Employmen Div.

    ; Establishment Clause Problems: If I am not religious, but I just do not believe in war,

    and I am not exempt, wouldn‟t that be a EC problem because you are favoring religion

    over nonreligion (one interp of the EC). There is no case saying that accommodating

    religion actually violates the establishment clause; there are certain things governments

    may do to accommodate religion that doesn‟t violate the establishment clause, but if they

    don‟t do it it won‟t violate freedom of exercise.

    d. Welsh v. US (1970)

    Facts: This case came under the UMTA as well, but Welsh struck the word “religious” on his application.

    The court still interpreted the case broadly as Welsh‟s claim was not barred by the exclusion in 6(j) for

    persons with “essentially political, sociological, or philosophical views or a merely personal code.”

    ; Justice Black thought that the exclusion should not be read to “exclude those who hold strong

    beliefs about our domestic and foreign affairs or even if the objection is founded on public


    ; Harlan concurred in the result but thought that 6(j) was only for those who objected to the war

    because of theistic beliefs, but that so read, was UNC. Favoring religion over NR and thus against


    ; White dissented; this exemption is only for those who do not believe in war only for religious


    ; Hypo: What if I am utilitarian and I don‟t there should be a war? Even though this is a moral code,

    it may fit under the religious exemption in Welsh.

    ; The court in Welsh said, if you believe something strongly enough, whether it is religion, the govt

    will call it religion, even if the beliefs are secular. Shap thinks this is phony, b/c the govt is

    saying a secular group will be treated as religious. He thinks this may have been done to avoid EC

    problems so you don‟t favor strong beliefs based on religion vs. nonsecular beliefs. This is the

    tension btw free exercise and EC.

    e. Gillette v. US (8-1 decision, 1971)selective objector

    Facts: Gillette said that it was his duty as a Catholic to discriminate between just and unjust wars, and to

    refuse participation in the latter.

    ; Marshall read the statute to require that “conscientious scruples” relating to military service must

    apply to ALL war.

    ; M found that the purposes of 6j were neutral and secular (EC), and that the government‟s interest

    sufficient to justify any burden on selective objectors‟ rights of free exercise.

    f. What is the definition of religion then?

    ; This is a conceptual problem, there is no algorithmic definition.

    ; The standard one seems to be professing a belief in a single god, religious gatherings, etc. ; There is a tendency to acknowledge strong beliefs as religion like Unitarians, for example. ; There can be no precise definition of religion, but is it right to say as the court said in Welsh and

    Seeger, that if you believe in something strongly enough (and it is not based on utility or

    consequences, then it must be religious?) It is crazy to say that anything you believe in strongly

    enough operates in the place of God in a theological system.

    ; Welsh and Seeger explanations.

    ; Political explanation: didn‟t want people serving in war because they were against it.

    ; Doctrinal explanation: assume that the interpretation of the statute subsuming strong

    beliefs with religion is correct, why would they do that? Afraid that they are violating

    the establishment clause because they would be favoring nonreligious over religious. To

    the extent that it follows the rule that we will interp to avoid constitutional problems, it is

    extreme and flies in face of what the statute says because it flies in face of religion

    ; In order to blunt the EC paradox it may do good for us to remember that in Locke v.

    Davey simply saying that the government may not favor religion is too stark of an

    interpretation. The document itself is not neutral by having the free exercise clause in

    there; no more neutral about religion than it is about equality and speech. There are

    circumstances in which the govt may favor religion by realizing that religion is pervasive

    in US life without violating the establishment clause. The government may favor,

    benefit, and accommodate religion in a variety of circumstances, we will look to see

    when we are able to do that.

g. Torcaso v. Watkins (1961)

    Facts: The court struck down a MD requirement that all holders of public office declare their belief in the existence of God. This was also an Article VI, clause 3 case which says that public officials will be bound by oath, but may never take a religious test as a qualification to office. The P could not be a notary public because he would not declare his belief in God.

    ; Decision stated that this violated FE as well, because neither the State nor the Federal Government

    can constitutionally force a person to profess a belief or disbelief in any religion. ; Example of belief/action distinction; it is silly to say you can believe in whatever you want, but

    you can‟t act on it. If what you are being made to do interferes with your beliefs, it punishes for

    you what you believe in, and that is UNC.

    ; Free exercise of religion usually involves putting your beliefs into action. A regulation on action

    might be OK.

    ; You can’t force people to say they believe in something before taking office.

    h. McDaniel v. Paty (1978)FE case

    Facts: The court invalidated, under the Free exercise clause, a Tennesee provision disqualifying clergy from being legislators or constitutional convention delegates.

    ; Plurality opinion: The state barrier related to conduct, not belief because it related to the person‟s

    status as a priest. However, the plurality applied SS to the disqualification‟s burden on religious

    practice, and the State‟s fear that it was establishing religion was inadequate to support the ban.

    ; Concurrences by Brennan and Marshall found that the disqualification directly burdened religious

    belief under Torasco and needed no further balancing.

    ; Difference between this and Torasco: Torasco gets people with religion into the lawmaking

    business, Paty tries to keep the religious out of law making.

    ; Argument structure: There is a fundamental right here to the free exercise of religion under the

    first amendment. This FR was entrenched. How did the court determine that religion was

    burdened enough to use SS? This was not a law of general application; it was directed at, and

    singled out religion. On its face, the law was directed against religion by placing a burden on

    religion, this triggered SS. This law places a penalty on selecting a certain religion, and imposes a

    political disability of the sort that is like the maximum penalty you can have in the political world.

    Therefore this triggers SS. What would the compelling interest be? Targeting religion in order to

    avoid establishment clause problems, because when you let someone like this into the legislature,

    you are letting someone in who will use religion t dictate many decisions.

    ; The court thought that this was not a very good compelling interest. The EC concern here does

    not justify telling people that if you want to become part of the leg, you foreclose yourself from

    being part of the clergy.

    ; Ask: Why is this law UNC? Why would it be inhibition of free exercise to say that members of

    clergy should not be members of the legislature? When people enter the legislature or the

    presidency, there is no serious control over motives purposes, goals, etc. in voting for something. ; Hypo: If we want to impose higher restrictions on abortion and we are dealing with the state

    legislature. If I vote against the measure for religious reasons is that wrong? If this guy did

    something wrong, then how can it be wrong to exclude clergy members from legislatures? The

    constitution is not silent on religion; it is designed to favor religious beliefs and it would be

    overbroad to say that you can‟t use religion in decision making.

    Where we are after Paty…

    1. AS: Government action that penalizes religion triggers SS. If it says on the face of a law that if

    you are a member of the clergy, you can‟t be part of the leg, the face of the statute is non neutral

    and this triggers SS. In these cases SS triggered without looking into burden on religion. You may

    look at burden when looking at compelling interest.

    2. Before Employment Div. v. Smith, law did not have to be discriminatory on its face to trigger SS,

    it could simply be a law of general app that bore heavily on religion; if it was burdensome enough

    it would trigger SS.

    i. Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993).

    Facts: only one SC decision interpreting and applying Smith. After the Santerias announced plans to

    establish a house of worship, school, cultural center, and museum, Hialeah adopted ordinance prohibiting

    ritual sacrifice of animals. The law defined “sacrifice” as killing animals “not for the primary purpose of

    food consumption.” The law applied only to an individual or group that “kills, slaughters, or sacrifices

    animals for any type of ritual, regardless of whether or not the flesh or blood of the animal is to be

    consumed.” First ordinance banned sacrifices, second defined them, third allowed exemptions.

    ; Read with the Smith case the two cases mark crystallization of doctrine of the first amendment

    that changed or seemed to change with Employment Division.

    ; If the government does something whether targeting religion or that severely burdens religious

    practice, once the burden reaches a certain threshold apply SS. (didn‟t have to be intentional).

    Before Smith this applied even if the law was one of general application.

    ; In the Woody case, the penal code was a law of general application saying that if you use

    restricted substances you are committing a crime. The CA SC applied SS, said the burden was

    very great there, the law cut out a central feature of religion, there was no compelling interest, and

    the restriction was not narrowly tailored.

    ; The Lukumi case, said, hey remember Smith, you don‟t get SS just by telling us that religion is

    burdened. But SS was triggered in this case, if Hialeah really wanted to protect animals they could

    have said no animal killing at all rather than “not for primary purpose of food consumption,” there

    needs to be a compelling interest and it must be narrowly tailored.

    ; On the face of the statute, this was directed at religion.

    ; This is not a simple case, facial discrimination and facial targeting appears to be confused because

    ritual tends to have secular meanings, so it is not so clear that it targets discrimination. The

    dictionary meaning of ritual is framed in terms of religious presentations, but that is not the some

    meaning of the word ritual though. If you probed the historic meaning of the word you could

    argue that the ritual is a proxy of religion

    ; The court looked at the statute, the meaning of religion, then looked at the city council minutes.

    The court got around to SS, but we are not sure how it got there, the court either found purposeful

    discrimination or that ritual sets of facial discrimination.

    ; Compelling interest: How do you prevent an unnecessary animal death? However, you can cut a

    wider swath by prohibiting killing of animals.

    a. Larson v. Valentecase where operative rule is if more than half of solicited money

    goes to religious stuff, certain consequences take place, they looked below the surface

    again and said the purpose of this was to target Rev. Moons religion, in that case over

    50% collection criteria was used as a proxy for the Moonies. In both cases the compelling

    state interest test failed.

    ; Scalia dissented to the Argument Structure.

    ; Compare the EP argument structure:

    a. say that there is a law saying that all persons of Vulcan ancestry report over there for sequestration.

    Under EP: classification based on raceSS

    b. Scalia would be OK with this as long as you did not investigate the hidden purposes of the


    c. Remember in Washington that the law was not discriminatory on its face, but impact of law is


    d. The majority in Lukumi examined empirical evidence, came up with the idea of facial

    discrimination, Scalia just wants to rely solely on the regulation, and exclude empirical evidence,

    if it targets religion then SS.

Free Exercise Argument Structures

    1. McDaniel: hard to pin down an exact standard of review. The AS seems to say that in order to trigger SS you don‟t need to totally ban the religion or torpedo the religious practice. Religion is part of life in some

    way if it is OK to make decisions based on your values and religion. It would be impossible to shut down religious activity in all spheres of public life. You can‟t say we will eliminate religion from private and public decision to make a discontinuous gulf, that would be inconsistent.

McDaniel v. Lukumi


    1. face of law seems to be directed toward religion, both cases there not directed just toward religion,

    but directed toward religion in hostile way.

    2. in neither case is religion shut down, the argument in the peyote case is that not using peyote

    destroys the entire religion.


    Facts: The State of Washington established Promise Scholarship Program to assist academically gifted students with postsecondary expenses. In accordance with the State Constitution, students may not use the scholarship at an institution where they are pursuing degree in devotional theology. Held: Does not violate the free exercise clause of the first amendment.

    What is the SOR?: Rational basis test

    Dissent: Scalia thinks that this case is inconsistent with the holding in Lukumi, the AS should be

    1. govt action 2. DAR 3. implies SS

    Analysis: you cannot exclude religion from the benefits you are conferring without mentional religion itself.

    ; Why did this case not trigger SS, you have a law that speaks to religion on the face of it.

    ; What is wrong with Scalia‟s dissent p. 1521? He is comparing not funding theological

    studies with scholarships as the same thing as not providing prescription drug benefits.

    There are practices and activities that are part of the fabric of American life, if you take it

    away or don‟t provide for it it looks like a penalty. There is no constitutional obligation to

    provide scholarship whereas there is one for police protection. You do not regard the

    commodity of scholarships the same way you regard commodity of health care.

    ; Not funding the scholarship does not place a burden, the same way not conferring a

    benefit of healthcare or police protection would place a burden and would likely violate

    FE. This is not a burden in the same way not letting clergy be lawmaker is. Targeting

    religion in this case does not make burden.

    ; Establishment Clause: may have been violated in this case because you can‟t benefit

    religion or burden religion by imposing burdens on religion or benefiting some religious

    groups over the other. The court does not always use all of its available tools. But if WA

    had funded theology it might be a violation of the EC for benefiting religion?

    ; In Lukumi, remember that if the government acts directly at religion and imposes burden

    we get SS, under SS the government is going to lose most of the time.

    ; Exhibits the tension between FEC and EC, you don‟t want to favor non-religion over

    religion, however are you f-ing with FEC.

    ; You cannot, for example, deny prescription drugs to nuns and priests b/c there is a

    baseline of activity that we expect the government to help us with. The problem with

    Scalia‟s argument is that the comparison to prescription drubs does not work because it is

    a different kind of commodity based on different set of exceptions, does not involve the

    government making reasonable decisions with scarce resources.

    ; Main point: Locke v. Davey stands for prop that there are things states can do that are

    not required by FEC and do not violate EC if they are done.

    ; Unlike Lukumi where if what government does either facially or looking beneath

    surface is directed at religion and seems to introduce burden, then it triggers SS, there

    was no compelling interest b/c they did not apply it across the board. But in Locke v.

    Davey, just because government action is directed at religion doesn‟t mean that SS will

    be triggered.

    ; If you put Lukumi and Davey together… current doctrine says that if govt action on

    the face of it or beneath surface is directed at religion and seems to be about a penalty

    or burden, and is not within space defined by Locke, then SS will be imposed. If govt

    does not burden religion; it also has no ob to support religion.

    In conclusion:

    There are ways of promoting religion that violate the EC, but there are also circumstances where providing benefits do not violate the EC. There are cases where not providing benefits to religion would violate the FEC, but there is also a small space where the government may do things to promote religion that does not violate EC, but if you do not do it doesn‟t violate the FEC.


    FEC space ;EC

    a. the space between the two rests on the nature of the benefit/burden being given

    b. compare things to the regular baseline of expectations that change over time


K. Reynolds v. US (1878)

    Facts: upheld application of federal law making bigamy a crime in the territories to a Mormon claiming that polygamy was his religious duty.

    the court said that this did not violate the free exercise clause.

    distinction between belief and action, you can regulate former, but not latter.


    1. Law of general application: this was for all people not directed specifically at Mormons. First case

    to construe free exercise clause.

    2. Why can‟t you say that Reynolds like Lukumi is directed at religion, and it inhibits major feature

    of religious practice, you could argue that this statute only affects Mormons so it really does target


    3. Or you could say the statute says no plural marriages, and therefore that is a law of general

    application; the idea of plural marriage is not unique to Mormons are even to religion.

    4. How to test if this is a law of general application? Do a sub experiment, if there were no Mormons

    would we still pass this law? Yes, so it is likely a law of general application.

    5. Under Lukumi, if the govt on the face of it or beneath the surface is penalizing religion, then you

    get SS, then you must ask what are the compelling interests of the state prohibiting plural

    marriages, and is this statute narrowly drawn.

    6. AS: This statute was not directed at religion, it was a statute of general application, therefore

    they used the rational basis.

    7. Suppose they had been targeting Mormons, what might be compelling interests?

     There is a fundamental right to marry, you could even argue that this targets the fundamental right

    to marry and should draw SS

    compelling interest, there will be civil unrest if men don‟t get married.

    CI: we favor marriage, and we don‟t want to promote the objectification of women.

L. Braunfeld v. Brown

    Facts: The Court rejected a free exercise challenge to Pennsylvania Sunday closing law. Challengers were orthodox Jews who had to close their stores on Saturday too, and thought this law would hurt their business a lot.

    ; Warren‟s plurality opinion cited Reynolds and said that you may hold whatever religious beliefs

    you want, but your freedom to act will have some legislative restrictions.

    ; This case came down before Smith, where laws severely burdening religious practices would

    trigger SS even if they were laws of general application.

    ; Does this law target religion? While a day of rest comes from religious backgrounds, it also has a

    secular background, and this likely came through collective action

    ; AS: This law does not target religion, it is one of general application, and even if you burdened

    religion enough to trigger SS before Smith, this one does not do it.

M. Sherbert v. Verner (1963)Articulation of SS

    Facts: State denied unemployment benefits to a woman, who was a member of the 7th day Adventist Church, who quit her job rather than work on her Saturday Sabbath.

    ; Court thought this put a substantial burden on religion, the woman basically had to choose

    between her job and her faith.

    ; SOR: The court applied SS, they looked for a compelling state interest. P. 1524.

    ; You could easily argue that this is a law of general application, there is no burden on religion, if

    you don‟t work on Saturday, you just don‟t get any unemployment compensation. Then why did

    she succeed. What triggered SS?

    ; AS: There is a burden on religious exercise from the standpoint of someone wanting to exercise

    their religion. It doesn‟t really matter where the burden comes from; or how rational we think the

    religious doctrine may be.

    ; Note: The court did not really look into how much religion was burdened at all in this case. This is

    unlike Lukumi where it is pretty clear that the statute was directed at religion; it was purposely

    inflicted on that religion, and it singled out the practices of the religion.

    ; Ask: So why does the bowler not get any religious protection while the 7th day does? The court

    will never inquire into the burden on bowling. The court clearly favors religion over non-religion,

    but the court will never say that protecting the FE clause violates the EC clause. The FE clause has

    to do with the promotion, accommodation, endorsement of religion.

    ; How then, does the court get around favoring religion over non religion? Bottom of p. 1524. The

    court focuses on “governmental obligation” of “neutrality.” Neutrality means that the law is

    neutral to religion. People are in no way burdened by this law to promote religion. Therefore, this

    is merely a form of accommodation. Shap does not think this is very convincing.

    ; Dissent: Harlan and White think that the holding itself singles out religion and that there is an

    establishment clause problem. So, one side of the court believes that in order to be neutral to

    religion you must accommodate it, whereas the minority thinks that that would violate EC.

    Remember though, that the Constitution favors religion, it is singled out for special protection.

N. Wisconsin v. Yoder (1972) p. 1526 SS applied, but the government still wins.

    Facts: Yoder, a member of the Old Order Amish was convicted and fined $5 for refusing to send his 15 year old daughter to school after she had completed the eight grade, which was in violation of Wisconsin‟s

    laws that you have to attend school until age 16. The Amish do not like the sort of things you learn in high school.

    1. What was the SOR? SS. Burger says, “A state‟s interest in universal education must be strictly

    scrutinized when it impinges on fundamental rights and interests, such as the right of free


    2. What triggered SS? The legislature did not target the Amish, this was a law of general


    3. Even though SS was applied, this law was not struck down. The schools train you to be a

    citizen in a republic. What the government did was necessary to promote a compelling state

    interest, and if the government loses it is for only a few reasons. The government loses if the

    interest is not compelling, what the government did was not necessary to promote the interest, the

    mechanism doesn‟t further the interest at all, or there are LRA.

    4. The court held this as violating the FE because it seems to say that the compelling interest of

    the state is promoted by the work ethic and diligence of the Amish anyway.

    5. Dissent: Justice Douglas: This is about the autonomy paradoxes in raising children (p. 1528), he is

    saying doesn‟t the kid have anything to say about this? What if you are an Amish child and you

    haven‟t been completely insulated from the outside world. Is autonomy of child promoted by

    letting parents dictate their education (compelling state interest)? Is autonomy of child furthered

    by saying that you need to give opp to remain in school.

O. Employment Division v. Smith (1990) p. 1533; no violation of FE clause; Sea change

    Facts: Smith involved a challenge by Native Americans to an Oregon law prohibiting the use of peyote, a hallucinogenic substance. Specifically, individuals challenged the state‟s determination that their religious use of peyote, which resulted in their dismissal from employment, was misconduct disqualifying them from receipt of unemployment compensation benefits.

    ; Court expressly changes the law of the free exercise clause.

    ; Scalia tried to distinguish Sherbert v. Verner in order not to overrule it. Shap thinks the

    distinction is phony. Tried to distinguish by saying the conduct in this case was criminal. Sherbert

    line of cases applied only in the context of denial of unemployment benefits, it did not create a

    basis for exemption from criminal laws.

    ; How does Smith displace Sherbert? If it is not DAR, and it is a law of general application, you

    get the rational basis test and just about anything goes. Smith dictated the rule of decision

    in Lukumi.

    ; Smith says that if the law doesn’t target religion, it is just another law of general application,

    use the RB, this standard of review is lower than that of EP.

    ; The court expressly rejected the use of strict scrutiny for challenges to neutral laws of

    general application that burden religion. So neutral laws of general app that burden

    religion only have to meet the rational basis test.

    ; O‟Connor: thought this law could withstand SS with compelling interest for preventing use of

    peyote. Concurred in part.

Trajectory of the law

    1. SherbertHow much is religion burdened? (It doesn‟t matter if the law is general app or not), SS

    will apply.

    2. SmithWe will not inquire into the burden at allif it is a law of general applicationapply the

    RB test (the SOR is lower than that of EP).

    3. Lockedoes the legislature have to fund religious studies if it funds one kind of education or

    could it refrain from doing so? This was decided under FE with hints about EC being involved

    also. In this area the SC says that the govt. may accommodate religion without violating EC.

    4. Reason for pursuing Scalia‟s theory in Smith: it harmonized with disproportionate impact

    jurisprudence in EP. Not all disproportionate impact cases are the result of racial or ethnic


P. City of Boerne v. Flores (1997) case 1541

    Facts: Congress lacked authority to enact a statute applying the Sherbert rather than the Smith standard to claims of religious exemption from generally applicable state laws.


    ; This was a separation of powers issue, Congress and the president can‟t just pass laws saying that

    any time there is FE case at federal level you will displace the Supreme Court‟s doctrine.

    ; Hypo: suppose the federal government establishes a program for spending money. Suppose the

    regulations for spending the money inhibit free exercise. Congress could merely argue that we

    don‟t need to build roads, but if we do then people need to comply with what we say. If you build

    roads negatively impacting certain religions, you have to show that there is a compelling interest

    in the way you are doing things.

    ; RFA is UNC at state level, but at fed level it depends on the program.

    ; SC declares UNC the RFRA. Congress exceeded scope of power under 5 of the 14th amendment.

II. Establishment Clause

    1. Arg‟t structures – apply when govt. is favoring one religion over another or govt. entanglement w/ religion is too great. Govt. can facilitate religion, but cannot advance or endorse it.

A. Lemon Test (form of SS)

    A statute must meet ALL of the following 3 criteria in order to survive Est. Clause challenge: (3 prongs) purpose, effect, excessive entanglement.

    ; It must have a secular legislative purpose.

    ; Its principal or primary effect must be one that neither advances nor inhibits religion.

    1. Incidental, indirect, and remote benefits to religion are not enough to invalidate.

    2. Also if the benefit to religion is based on individual choices and the law is one of general

    application, the law will be upheld.

    ; It must not foster an excessive govt. entanglement w/ religion.

    A Statute is UNC if it fails any prong of the test.

    Shap views this as a form of heightened, probably SS that is applied whenever there seems to be a case for government involving itself in government directly or indirectly. When LT, coercion, endorsement comes up it seems to be that the govt is doing something with, for, or against religion. PEE is a form of heightened scrutiny which crystallizes questions you want to ask under the EC. Looks at threshold nature of injury being inflicted, and also closely inquires into empirical extent into which certain purposes and effects are established.

B. Coercion Testprobably form of SS

    ; If the govt. action coerces people to participate in a religious activity the law is struck down.

    1.Coercion isn‟t necessary to find an Est. Clause violation, but if it is present, the practice will be a


    3. Coercion does not have to be direct.

    4. Shap thinks this is not inconsistent with the LT, it is the ultimate exemplar of violating the test.

C. Endorsement Test (seems to be fourth prong of Lemon test) nativity scene by O’Connor

    1. The govt. cannot endorse religion.

    2. If a reasonable observer perceives that the govt. is endorsing religion, then it is struck down.

    3. Even if a reasonable observer would perceive the govt. as endorsing religion, the law may be upheld if the govt. does nothing to encourage a mistaken perception of endorsement.

    Note: may be another way of testing the purpose and effect prongs of the lemon test; could be used as interpretive criteria of the first two elements. Because if some public act of government is meant to promote religion it is likely an endorsement of it. Simply having the purpose and effect of religion, but not endorsing it won‟t get you of the hook.

    this is a sufficient condition for violating the lemon test, but it is not necessary (remember that purpose and effect test get hit as well). May even scoop up entanglement as well.

    court uses this language when it is the most appropriate way to argue the situation and there is no need to talk about complicity, or non neutrality.

D. Escape Hatch Test likens to RB

    1. Even if the govt. practice facially favors religion on its face, SC will uphold the law if it is

    grandfathered in by tradition and history

    ; There seems to be a lot practices that are grandfathered (money, prayer in school, God

    save this court). Sometimes this works and sometimes it doesn‟t

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