First Amendment: Religion and Expression - Comprehensive Notes

Religion and Free Expression

• First Amendment Text: "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."

Religion

• Overview:
  • Madison's original proposal focused on preventing abridgment of religious belief or worship and establishing a national religion.
  • House and Senate versions show evolving language, eventually leading to the current version.
  • The final language emerged from a conference committee chaired by Madison.
• Scholarly Commentary:
  • Story: Government can interfere in religion if piety, religion, and morality are connected to the state's well-being.
  • The religion clauses exclude the Federal Government from acting on religious matters.
  • The aim was to prevent religious persecution and a national establishment, not general governmental encouragement of religion.
  • Modern Interpretation: Establishment Clause forbids practices that aid one religion or all religions (Everson v. Board of Education).
  • Dissenting View: Some argue for allowing general governmental promotion of all religion without preferential treatment.
  • Wall of Separation: Jefferson’s metaphor characterizes the division between Church and State (Reynolds v. United States).
• Court Tests Applied to Legislation Affecting Religion:
  • Earlier language may be too broad to serve as general principles (Walz v. Tax Comm’n).
  • The clauses state an objective, not a statute.
  • Purpose and Primary Effect: Enactment must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion.
  • Excessive Government Entanglement: Governmental program must not result in excessive government entanglement with religion.
  • Lemon v. Kurtzman: Established the three-part test: secular purpose, no advancement or inhibition of religion, and no excessive entanglement.
  • Criticism: The tests are sometimes difficult to apply and have been attacked by some Justices.
  • Neutral Accommodations: Proposed that “neutral” accommodations of religion should be permissible as long as they do not establish a state religion and there is no “coercion” to participate in religious exercises (Westside Community Bd. of Educ. v. Mergens).
• Government Neutrality in Religious Disputes:
  • Both religion clauses enforce governmental neutrality in religious controversies.
  • Courts should avoid inquiry into religious doctrine and respect the decision-making body or process within the church.
  • Civil courts can resolve property disputes using neutral principles of law without resolving doctrinal issues (Presbyterian Church v. Hull Memorial Presbyterian Church).
  • Jones v. Wolf: Approved applying neutral principles by examining deeds, state statutes, and church constitutions.

Establishment of Religion

• "Establishment" connotes sponsorship, financial support, and active involvement of the sovereign in religious activity.

• The Court's reading has not barred all assistance to religious institutions.

• Financial Assistance to Church-Related Institutions:

  • Early ruling: A federal grant to a religiously operated hospital was considered secular, avoiding the constitutional issue (Bradfield v. Roberts).
  • Everson v. Board of Education: Provision of free transportation to parochial school students was upheld as a form of “public welfare legislation”.
  • Child Benefit Theory: Aid that benefits the child and not the school is permissible.
  • Board of Education v. Allen: State loans of textbooks to parochial school students were sustained, furthering educational opportunities for the young.
  • Secular Purpose and Effect: Legislation must have a secular purpose and a primary effect that neither advances nor inhibits religion.
  • Committee for Public Educ. & Religious Liberty v. Nyquist: Legislation must avoid aiding the religious mission of schools, directly or indirectly.
  • Lemon v. Kurtzman: State aid to church-connected schools deemed to have gone over the “verge”.
  • Grand Rapids School District v. Ball: Invalidated programs conducted in leased private school classrooms, finding the teachers may indoctrinate particular religious tenets at public expense and the programs subsidize religious functions.
  • Aguilar v. Felton: Invalidated a program in which public school employees provided instructional services on parochial school premises, finding it requires close cooperation and day-to-day contact between public and secular authorities, resulting in excessive entanglement.
  • Mueller v. Allen: Upheld a Minnesota deduction from state income tax available to parents of elementary and secondary school children for expenses incurred in providing tuition, transportation, textbooks, and various other school supplies.
  • Reliance on Individuals’ Independent Decisions: Mueller stands for the proposition that state subsidies of tuition expenses at sectarian schools are permissible if contained in a facially neutral scheme providing benefits, at least nominally, to parents of public and private schoolchildren alike.
  • Tilton v. Richardson: Construction grants to church-related colleges and universities.
  • Bowen v. Kendrick: Upheld the Adolescent Family Life Act (AFLA) against facial challenge.

• Governmental Encouragement of Religion in Public Schools:

  • Released Time: Programs allowing students to leave school for religious instruction were scrutinized.
    • Illinois ex rel. McCollum v. Board of Education: Program using public school classrooms for religious instruction was struck down.
    • Zorach v. Clauson: Program allowing students to leave school premises for religious instruction was upheld.
  • Prayers and Bible Reading: Daily classroom prayer was deemed unconstitutional (Engel v. Vitale).
  • Abington School District v. Schempp: Requirements for Bible readings were found to violate the Establishment Clause.
  • Wallace v. Jaffree: Struck down an Alabama statute authorizing a 1-minute period of silence in all public schools “for meditation or prayer”.
  • Lee v. Weisman: A school-sponsored invocation at a high school commencement violated the Establishment Clause.
  • Curriculum Restriction: Laws prohibiting teaching evolution were struck down (Epperson v. Arkansas).
  • Establishment of Religion: Restrict the states from establishing bodies for the purpose of religious activity.
  • Access of Religious Groups to School Property: May not bar religious groups from meeting on public school property (Widmar v. Vincent).

• Tax Exemptions of Religious Property:

  • Tax exemptions for religious institutions are generally permissible (Walz v. Tax Comm’n).
  • Sales tax exemptions applicable only to religious publications are impermissible (Texas Monthly, Inc. v. Bullock).

• Exemption of Religious Organizations from Generally Applicable Laws:

  • The Civil Rights Act exemption of religious organizations from religious discrimination in employment does not violate the Establishment Clause (Corporation of the Presiding Bishop v. Amos).

• Sunday Closing Laws:

  • Sunday Closing Laws were upheld as serving secular purposes (McGowan v. Maryland).
  • Estate of Thornton v. Caldor, Inc.: State statute mandating employers honor the Sabbath day of the employee’s choice was held invalid.

• Conscientious Objection:

  • Alternative service for religious objectors has been provided (United States v. Seeger).
  • Gillette v. United States: Congress can restrict conscientious objection status to those who object to war in any form.

• Regulation of Religious Solicitation:

  • Larson v. Valente: Struck down a provision in a state charitable solicitations law that required only those religious organizations that received less than half their total contributions from members or affiliated organizations to comply with the registration and reporting sections of the law.

• Religion in Governmental Observances:

  • Legislative prayers are permissible based on historical practice (Marsh v. Chambers).
  • Inclusion of a Nativity scene (creche) in a city’s Christmas display does not violate the Establishment Clause occasion (Lynch v. Donnelly).
  • Inclusion of a creche in a holiday display constitutes a violation (Allegheny County v. Greater Pittsburgh ACLU).
  • Inclusion of a menorah in a holiday display where there is no violation (Allegheny County v. Greater Pittsburgh ACLU).

• Miscellaneous:

  • Larkin v. Grendel’s Den: Ruled the Establishment Clause is violated by a delegation of governmental decisionmaking to churches.

Free Exercise of Religion

• Overview:
  • The Free Exercise Clause prevents governmental restraint on the free exercise of religion (Abington School District v. Schempp).
  • Government cannot regulate religious beliefs or compel persons to affirm particular beliefs.
  • Interpretation is complicated by the distinction between belief and conduct.
  • Some religiously motivated conduct is protected from generally applicable prohibitions.
  • The relationship between the Free Exercise and Establishment Clauses varies with the expansiveness of interpretation of the two clauses.
• The Belief-Conduct Distinction:
  • Early View: Laws may interfere with practices but not with religious beliefs (Reynolds v. United States).
  • Balancing Test: Secular interest is balanced against religious liberty (Sherbert v. Verner).
  • Later View: If prohibiting the exercise of religion is not the object but merely incidental, the First Amendment has not been offended (Employment Division v. Smith).
• The Mormon Cases:
  • Reynolds v. United States: Upheld laws prohibiting polygamy.
  • Davis v. Beason: Sustained a law barring bigamists, polygamists, and those cohabiting with more than one woman from voting or serving on juries.
• The Jehovah’s Witnesses Cases:
  • Cantwell v. Connecticut: Distribution of religious material cannot be forbidden under a licensing law allowing inquiry into the religious nature of the cause.
  • Additional cases expanded rights to use public streets and parks while limiting certain practices deemed disruptive.
  • In Employment Division v. Smith the Court indicated that the compelling interest test may apply only in the field of unemployment compensation, and in any event does not apply to require exemptions from generally applicable criminal laws.
• Free Exercise Exemption From General Governmental Re- quirements:
  • Braunfeld v. Brown: The free exercise clause did not mandate an exemption from Sunday Closing Laws for an Orthodox Jewish merchant.
  • Sherbert v. Verner: Required a religious exemption from secular, regulatory economic legislation for a Sabbatarian.
  • Wisconsin v. Yoder: Held that a state compulsory attendance law, as applied to require Amish children to attend ninth and tenth grades of public schools in contravention of Amish religious beliefs, violated the Free Exercise Clause.
  • United States v. Lee: Denied the Amish exemption from compulsory participation in the Social Security system.
• Religious Test Oaths:
  • Torcaso v. Watkins: Invalidated a state constitutional provision requiring a notary public to declare his belief in the existence of God.
• Religious Disqualification:
  • McDaniel v. Paty: Invalidated a Tennessee statute barring ministers and priests from service in a state constitutional convention.

Freedom of Expression—Speech and Press

• Adoption and Common Law Background:

  • Madison’s version of the speech and press clauses sought to protect expression and the freedom of the press.
  • Debate in the House is irrelevant with regard to the meaning the Members ascribed to the speech and press clause and there is no record of debate in the Senate.
  • Blackstone’s View: Liberty of the press consists in laying no previous restraints upon publications.
  • Federalist and Jeffersonian Views developed a libertarian theory of freedom of speech and press that became accepted over time.

• Freedom of Expression: The Philosophical Basis:

  • No comprehensive theory exists on the underlying philosophical foundations of the freedom of expression guarantee.
  • Some argue it is limited to protecting political speech to have free self-government.
  • Others refer to marketplace of ideas.
    • Scholars view freedom of expression has necessary to promote individual self-fulfillment.

• Freedom of Expression: Is There a Difference Between Speech and Press

  • The question of whether the free speech clause and the free press clause are co-extensive must be determined.
  • The press clause does not confer on the press the power to compel government to furnish information or to give the press access to in- formation that the public generally does not have.

• The Doctrine of Prior Restraint:

  • Liberty of the press has meant immunity from previous restraints or censorship (Near v. Minnesota).
  • Any system of prior restraints of expression comes to the Court bearing a heavy presumption against its constitutional validity (Bantam Books v. Sullivan).
  • New York Times Co. v. United States: The Government failed to meet the “heavy burden” of showing justification for the imposition of a restraint.
  • The Court held governmentally sactoned religious observances and inclusion of religious symbols in governmentally sponsored holiday displays was constitutional.
  • Larkin v. Grendel’s Den: The Court held that the Establishment Clause is violated by a delegation of governmental decisionmaking to churches.

• The most recent Court encounter with the doctrine in the national security area occurred when the Government attempted to enjoin press publication of classified documents pertaining to the Vietnam War but the Court rejected the effort.

• Injunctions and the Press in Fair Trial Cases:
  * Imposition of “gag orders” on press publication of information directly confronts the First Amendment bar on prior restraints.

  • Nebraska Press Ass’n v. Stuart: The Court unanimously rejected to the First case ruling that was designed to restrain from mentioning the issues brought up by the trial by an influential criminal defendant.

• Obscenity and Prior Restraint:

  • Times Film Corp. v. City of Chicago: Ruled First Amendment did not proscribe a licensing system under which a board of censors could refuse to license for public exhibition films which it found to be obscene.

• Near v. Minnesota ex rel. Olson: The Court deemed that it was the duty of judicial entities to determine if something had an extreme possibility of causing issues concerning religious matters.

• Subsequent Punishment: Clear and Present Danger and Other Tests:

  • Expression may incite, urge, counsel, or advocate the commission of criminal conduct.
  • Some expression, such as picketing, may itself consitute criminal conduct.
  • Schenck v. United States: Formulated the