Constitutional Law Religion Clauses Review

Review Sheet for The Religion Clauses of the First Amendment

The text of the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; of abridging the freedom of speech.

A central question is defining religion:

Going back to 1890, the Supreme Court defined religion as involving a belief in a Supreme Being. By 1965, in the United States v. Seeger,  https://www.oyez.org/cases/1964/50 the Supreme Court moved away from that requirement to include as religion that which was not necessarily theist. So presumably, a Buddhist or a practice of Shinto might qualify. Seeger sought conscientious objector status, asserting that he was a pacifist, influenced by his study of faith and religion, but was agnostic, and professed no belief in God or a Supreme Being. The Court allowed him to define his beliefs as religion. 

Four criterion for qualifying as a religion:

1.  Is there belief in a Supreme Being or something else that is at the center of one’s life

2. Is there a moral code beyond what is subjective?

3. Is it associational

4. Is it sincerely held religious belief?

Remember Brown v. Pena, 1977. Belief in Kozy Kitten cat food is not religion.

The Establishment Clause:

Remember that the Supreme Court’s interpretations of the Establishment Clause have some confusion built in. Cases that have the force of law currently have employed different tests of the clause’s meaning. The Supreme Court has overruled the Lemon test and there is some uncertainty regarding the meaning and future of the clause.  

There have been different theories regarding the meaning of the Establishment Clause:

Separationists believe that the proper interpretation of the Constitution should acknowledge a wall of separation between church and state. Aid to religion and entanglement between religion and state should be as minimal as possible. The Lemon test has a very strong separationist application.

The separationist approach was at its height during the Warren Court years, from the 1950’s through the 1960’s and into the 1970’s under the Burger Court.

Others are non-preferentialists, meaning that as long as one religion is not preferred over another or religion is not preferred over non-religion, there is no problem with some government assistance to religion or religious institutions.

There have been different tests that have been applied by the courts in determining if there is an Establishment Clause violation:

The Lemon Test

The Lemon test came out of the Lemon v. Kurtzman case of 1971. https://www.oyez.org/cases/1970/89

In that case, state government provided financial assistance to the religious schools in the form of textbooks, instructional materials, and financing of a portion of secular teachers’ salaries. The Court applied a three-prong test to determine if the aid was in violation of the Establishment Clause.

1. Is the purpose of the legislation secular?

2. Does it have a principal or primary effect that either inhibits or promotes religion?

3. Does it involve an excessive entanglement with religion?

The Court found that the financing of a portion of secular teacher salaries does in fact create an excessive entanglement because it requires the government to monitor whether teachers are truly not teaching religion.  For example, could a math teacher be employing time in a math class to inculcate religion?

The Lemon test memorialized separationist understanding of the Establishment Clause. In light of the Kennedy v. Bremerton and Carson v. Makin case, it is safe to assume that the test has been overruled, however many decisions like Edwards v. Aguillard and Lee v. Weisman, that were made applying a Lemon test, have not been overruled.

Criticisms of the Lemon test:

Justice Sandra Day O’Connor argued that the Lemon test created a catch-22 situation in which in order to determine if there was a primary effect that inhibited or promoted religion, government inevitably had to monitor that activity and become excessively entangled with religion.

Others like Justice Scalia argued that it was ahistorical and not rooted original understanding, claiming that a certain amount of religion in the public sphere was traditional.

Endorsement/Neutrality Test

Does the government endorse religion, or is it neutral? Would a reasonable person see the government’s action as endorsing religion? Some people saw the endorsement question as being part of the Lemon test. Other judges have interpreted it differently.

History, Tradition, Originalism

The current understanding of the Supreme Court in light of Kennedy v. Bremerton and Carson v. Makin is that the Lemon test, and its decidedly separationist bent, has been overruled and is no longer good law.  The current understanding, per Carson v. Makin and Kennedy v. Bremerton, two recent Roberts court decisions, from 2022, apply a test rooted in tradition, history, and original understanding.  Both of those decisions, which also include issues related to free speech and free exercise of religion, provide for far less separation between church and state, and acknowledge a tradition of allowance for greater role of religion in the public sphere.

In Kennedy v. Bremerton https://www.oyez.org/cases/2021/21-418, the Supreme Court said that a public high school coach who prayed at the 50- yard line, after a football game, while the students were singing the fight song, people were milling about talking with others and checking their phones, was not in the scope of his employment.  He was a private actor at that point and not a government actor. There was no risk of coercion of students, and his free exercise rights were being violated. The Court ignored facts involving his inspirational speeches to students, which included religious references and prior prayers he led in the locker room in the presence of students before the game. The Court concentrated only on his silent kneeling in prayer after the game, which he had done after being warned by the Bremerton District to stop, and before he was dismissed.

In Carson v. Makin, https://www.oyez.org/cases/2021/20-1088 the Supreme Court found that a Maine law that made money available for private education for students who had no public school nearby, violated the Free Exercise Clause in prohibiting the use of that money for private, religious education.

Justice Gorsuch employed an originalism, historical, traditional test.  But what does that mean going forward? There is some uncertainty.  Some believe that the standard will rest on whether there is government coercion. For example, are students being coerced when a public school coach prays after a football game?  Does the coercion have to be in the form of punishment, or can it be psychological or emotional? 

Important Areas for Establishment Clause Analysis.

Government Funding

Everson v. Board of Education of the Township of Ewing, 1947 https://www.oyez.org/cases/1940-1955/330us1

It said there were many things that government could not do:

-set up a church, pass laws that aid one religion, aid all religions, or prefer one religion over another, force anyone to attend a church, force anyone to profess religious beliefs, tax to support religious institutions, BUT

The Supreme Court said that a government reimbursement of parents for their expenditures of transportation costs for their children to and from private religious schools was not a violation of the Establishment Clause. The benefit was going to parents not to the religious institution itself. It did not require the government to provide that money to parents as a possible violation of the free exercise clause.

The Court also said that the Establishment Clause, despite the language of “Congress” shall make no law respecting religion, pertained to state and local governments as well. This is the incorporation doctrine of the First Amendment Establishment Clause through the Fourteenth Amendment Due Process Clause to the states and localities.

Board of Ed. School District No. 1 v. Allen, 1968 https://www.oyez.org/cases/1967/660

The Supreme Court said that, because the stated legislative purpose and necessary effects of the statute did not advance any one religion or religion in general, the law did not violate the First Amendment. Because the books were given to the students, rather than the parochial schools themselves, the Court reasoned, "the financial benefit is to parents and children, not schools."

Lemon v. Kurtzman, 1971 https://www.oyez.org/cases/1970/89

The three prong test used for government aid:

1. Does it have a secular purpose?

2. Does it have a primary effect that inhibits or promotes religion?

3. Does it foster an excessive entanglement between government and religion?

Aid to religious institutions in the form of payment of secular teacher salaries was considered an excessive entanglement with religion, since it would require the government to monitor whether that money would be used to promote religion.

Zelman v. Simmons-Harris, 2002 - https://www.oyez.org/cases/2001/00-1751

A tax voucher program in which the state of Ohio provided grants to low-income families to offset the cost of private schools. The Supreme Court said this was aid to parents and was religiously neutral.  There were no incentives for the money to be used at a private religious school; thus it was held as permissible under the Establishment Clause.

Agostini V. Felton, 1997 - https://www.oyez.org/cases/1996/96-552

The Supreme Court upheld a program in which public school teachers who taught remedial subjects could do so in private schools. The Court reasoned that it did not violate the Establishment Clause and provided no excessive entanglement between government and religion. The effect on religion was remote and incidental, not direct and substantial. This case only applied the first two prongs of the Lemon test:  is it secular in intent, and does its primary effect promote religion?

If the aid to the religious school was very broad and gave the religious school the discretion on how it would be used, it will very likely be a problem under the Establishment Clause.  

Trinity Lutheran Church of Columbia, Inc. v. Comer, 2017 https://www.oyez.org/cases/2016/15-577

The Supreme Court asserted that a clause in the State Constitution of Missouri (a Blaine Amendment) that withheld resources from religious schools, while providing them to all other private schools, was a violation of the Free Exercise Clause. Providing those funds to religious schools was not an establishment clause problem.

Earlier decisions had provided that under the Establishment Clause, states could provide books or remedial teachers to private religious schools if it wished.  Under Trinity Lutheran, the Court asserts that withholding is a problem. They must affirmatively give it. Remember that the resource here were scrap tires for playgrounds. This might have been a different outcome if they were computers or a blank check.

Tax Exemption for Religious Institutions

Walz v. Tax Commission of New York, 1970 https://www.oyez.org/cases/1969/135

The Court found the tax exemption for religious institutions was sufficiently neutral because it also included tax exemptions for other secular non-profits as well, like hospitals and charitable organizations.

Religious Groups Access to Public School Facilities

Widmar v. Vincent, 1981 https://www.oyez.org/cases/1981/80-689

A state university opened its space to registered students groups, but denied that opportunity to student religious groups. The Supreme Court said that in creating a public forum for secular groups, it must also make that available to religious groups.

Lamb’s Chapel v. Center Moriches Union Free School District, 1993 https://www.oyez.org/cases/1992/91-2024

A public school facility could be used in the evenings by a religious group showing a religious film, since other non-religious groups had access. Lemon test was applied: secular, not primarily promoting religion, no excessive entanglement with religion.

Good News Club v. Milford Central School, 2001 https://www.oyez.org/cases/2000/99-2036

By opening the public school buildings to other non-religious groups, denying the Good News Club, a religious group was discriminatory against religion. Opening up the space was not a violation of the Establishment Clause.

Government-Run Public Schools and Religion

Epperson v. Arkansas, 1968 

The Court invalidated an Arkansas law that criminalized the teaching of evolution in public schools. The Arkansas statute impermissibly promoted a religious theory of human origin.

Edwards v. Aguilard, 1987 https://www.oyez.org/cases/1986/85-1513

Applying the Lemon test:  the Supreme Court struck down a state law that required the teaching of creationism in tandem with the teaching of evolution.

Government Sponsored Prayer in Schools

Engel v. Vitale, 1962 https://www.oyez.org/cases/1961/468

Supreme Court outlaws teacher-led prayer in schools

Wallace v. Jaffree, 1985 https://www.oyez.org/cases/1984/83-812

A teacher introducing a moment of silence for meditation was considered to be a violation of school neutrality on the subject of religion. Too much of an association with prayer.  Could this be overruled by the current Roberts Court?

Lee v. Weisman, 1992 https://www.oyez.org/cases/1991/90-1014

Lemon test application. The Supreme Court found that a prayer delivered by a cleric at a public high school graduation constituted an Establishment Clause violation. It had a principal effect that promoted religion.

Town of Greece v. Galloway, 2014

Prayer before a town board meeting or a legislative meeting does not have the same risk of coercion that prayer in school has. The Supreme Court found that even prayers from ministers that invoked Jesus did not constitute a violation of the Establishment Clause. This was a history and tradition argument. Justice Kennedy said the non-sectarian prayer might be offensive, but it was not coercive.  There is less risk of coercion outside of the school setting.

Kennedy v. Pemberton, 2022 https://www.oyez.org/cases/2021/21-418

See earlier in the review.

Religious Symbols on Government Property

County of Allegheny v ACLU, 1989 https://www.oyez.org/cases/1988/87-2050

The Supreme Court distinguished between two displays. The one outside the courthouse of a Christmas tree and a menorah was deemed a non-endorsement of religion. These were cultural symbols of the holiday.  The nativity scene or crèche inside, on the courthouse steps, was deemed to be a government endorsement of religion.

An earlier case of Lynch v. Donnelly, 1984 found no endorsement of religion of a display of a crèche with Santa Claus, reindeer and other secular images.  The nativity here was not wholly motivated by religious considerations.

Van Orden v. Perry, 2005 https://www.oyez.org/cases/2004/03-1500

Arguing from tradition, the Court argued that a six-foot high, three-foot wide Ten Commandments monument placed between the State Capitol and the state supreme court, did not violate the establishment clause.  The government may place a religious symbol on the grounds. It was one among many secular displays and monuments. It was not so noticeable. It was deemed a passive symbol. This Court did not apply the Lemon test.

American Legion v. American Humanist Association, 2017 https://www.oyez.org/cases/2018/17-1717

The Supreme Court did not apply the Lemon test, finding it not applicable on questions of religious symbols. The Court said that in cases that involve religious symbols on government property that have long standing, the presumption should be to continue to maintain them. The cross in question in this case, it found, had symbolism that resonated from the era of World War I, and that based on history and tradition should be maintained. A different outcome might have come from a new such religious symbol placed on government property.

The Free Exercise Clause of the First Amendment 

Differentiating Among Religious Beliefs, Profession of Beliefs, and Religious Conduct

1. Holding religious beliefs – The law cannot compel a person to believe something in opposition to sincerely held religious beliefs. There is almost absolute protections against such government compulsion.

2. In profession of religious beliefs – not as absolute as beliefs, but religion is afforded the greatest protection of all forms of speech.

3. In religious conduct – The state with a compelling reason and a policy that is narrowly tailored to achieving that compelling reason or a legitimate interest under certain circumstances can prohibit religious conduct that is against policy.

The greatest protection is extended to matters involving religious beliefs and protection against being compelled to believe something contrary to beliefs.

West Virginia v. Barnette case, 1942. https://www.oyez.org/cases/1940-1955/319us624

Facts of the case:  West Virginia’s law required a pledge of the flag. Barnette, a Jehovah’s Witness asserted that it was against religious belief. In the Jehovah’s Witnesses’ faith, saluting a flag was honoring a graven image. 

Was this an issue of belief or religious conduct? It sounds like conduct, but the Court said it was really a compulsion to belief. The individual’s protection under the Free Exercise Clause is almost absolute.

Torasco v. Watkins, 1961 https://www.oyez.org/cases/1960/373

A government official cannot be forced to state he believes in God in order to hold office.  No compelled belief. 

What about advocacy or profession of a faith?

Cantwell v. Connecticut, 1940 - https://www.oyez.org/cases/1940-1955/310us296

The Court held that even the profess-on of religious beliefs that others might find offenseive was not justification to prevent the religious speech. 

Religious Conduct

Reynolds v. United States: https://www.oyez.org/cases/1850-1900/98us145

Despite polygamy being areligious conduct of the Church of Jesus Christ of Latter Day Saints, the Supreme Court upheld a law outlawing bigamy.

In the free exercise case, of Sherbert v. Verner, 1963, the applied to neutral laws of general applicability, a strict scrutiny analysis. The state needed a compelling reason for its law (something of the utmost importance) have it be narrowly tailored to meets its objective.  Strict Scrutiny standard applied to free exercise of religion.

Wisconsin v. Yoder, 1972 applies that standard. Yoder objected to sending a child to school until the age of 16 because of free exercise of religion.

The Court applied the strict scrutiny analysis and found the state law was not compelling and unfairly burdened free exercise rights.

Lukumi Babalu Aye v. Hialeah

What standard was applied in this case? Strict scrutiny because it was not a law of general applicability and neutrality. The City of Hialeah failed to establish that its law was narrowly tailored to achieve a compelling objective.

Smith v. Employment Division, 1990

The Court dispensed with the Sherbert standard and decided to not apply the strict scrutiny standard, instead just looking at whether the state had a legitimate interest. Scalia said that only in cases involving two fundamental rights, should the Court apply strict scrutiny to laws of general applicability.