Law and Religion Outline
Law and Religion Outline
com
I.
Religion in Schools
A. Prayer/Bible in the Classroom
1. Engel v. Vitale, 1962, Black`
a. Facts: NY school board composes prayer to be said every morning in class: Almighty God,
we acknowledge our dependence upon Thee and we beg They Blessings upon us, our parents,
our teachers and our Country.
b. Holding: Establishment clause means at least that govt cannot compose official prayers as
part of a religious program carried on by government
i. History shows dangers of union of church and state book of common prayer
ii. No compulsion needed to show establishment, just enactment of law
iii. Madisonian arguments govt bad for religion and religion bad for govt
- Also, take alarm at first experiment on our liberties
c. Dissent, Stewart: No coercion, simply letting people say prayer. Establishment means
classical establishment. Govt prays all the time! We are a religious people (Zorach).
d. What differentiates school officials and got chaplains?
i. Parents vs. schools
ii. Everyday indoctrination, impressionable kids
e. Black leaves open opportunities to historical anthems including composers expression of
faith. Is he drawing a line, defining prayer?
2. Abington v. Schempp, 1963, Clark
a. Facts: State statutes requiring bible reading every morning without comment. Students may
be excused. Student reading may choose version. Followed by recitation of the Lords
Prayer.
b. Rule:
i. 1) Purpose of the enactment must not be to advance or inhibit religion; and
ii. 2) Primary effect must not be to advance or inhibit religion
c. Holding: The exercise has a pervasively religious character
i. Even if purpose is not strictly religious, method of accomplishing purpose is religious
ii. Religious character evidence in letting students choose version
iii. Allowing for free exercise does not mean state can facilitate religious exercise
iv. This decision does not impose a religion of secularism because a religion of
secularism is hostility toward religion. Neutrality is being asked for.
d. Brennan, concurrence: Excusal does not resolve free exercise still public expression of
belief. Any version of Bible is sectarian.
3. Wallace v. Jaffree, 1985, Stevens
a. Facts: Enactment added words or voluntary prayer to statute allowing silent meditation.
Also added choice for teacher to lead willing in composed prayer (obviously thrown out).
b. Holding: or voluntary prayer violates establishment clause
i. Abington test: No secular purpose identified that was not served by meditation clause
ii. Legislative history shows prayer in classroom was intended
iii. Endorsement test: adding prayer conveys a message that the state approves of
prayer in the classroom.
c. OConnor, concurrence: Meditation is not prayer (splitting hairs?). Adding word prayer
evinces religious purpose.
d. Is neutrality anything but religion?
e. How one frames enactments matters in determining purpose!
4. Questions left open:
a. What if religion is normal part of conversation in that community?
i. Religious privacy
ii. Rights of parents
iii. School shouldnt be affirming/denying religion
b. Teacher free speech rights?
a. Facts: School board permitted graduating senior class by secret ballot, to choose whether
invocation shall be part of graduation and football games. If so, class shall elect students to
deliver non-sectarian, non-proselytizing prayers.
b. Holding: Prayer at football games violates estab. cl.
i. Not private speech in public forum: not open to indiscriminate use, majoritarian
process guarantees only majoritys views
ii. Actual/perceived endorsement: school has not distanced itself from views
- Elections only take place because school lets them vote
- School requires not proselytizing, nonsectarian prayer
- Religious message is obvious way of solemnizing invocation is asking for
divine assistance (cast doubt on solemnizing rationale at all???)
- School-scheduled, school-sponsored event objective observer would see it as
school condoning views of majority
iii. Lemon test, purpose prong: invocation not necessary to solemnize; facts show that
school wanted to preserve tradition of prayer at football games
iv. Coercion: sure, all students not required, but some participants extracurricular
activities are required to be there; even if not coerced to be there, those that do show
up are coerced
c. Rehnquist, Dissent: Not enough facts, had the policy been put into practice, students may
have chosen according to wholly secular criteria like speaking ability
d. Easy to see school origin of prayer in this case, not student origin
3. Hypo: License plates with religious slogan
a. Note forced to have them
b. State has approved plate though, according to secular criteria, but still approved
c. What if someone attributes message to state
4. Hypo: Coach lets team captain pray if he wants
a. Better, but consider history. If it is a way of getting around coachs desire to pray, not good.
b. Coach chooses captain.
c. What if captain elected?
d. What if coach says captain cannot pray?
i. Secular purpose of preventing divisiveness
ii. But, not being neutral?
5. Main question: What structure of control makes state responsible for content of the message?
II.
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e. Public forums
i. Traditional
- Streets, sidewalks, parks, other places where people have been traditionally
free
- Cannot regulate speech except for reasonable, viewpoint-neutral TPM,
unprotected
- No subject-matter regulations
ii. Designated
- TPM, no viewpoint discrimination
- Reasonable content restrictions allowed (___-related only)
iii. Nonpublic fora - once it is not a public forum, government takes responsibility for its
speech
Widmar v. Vincent, 1981, Powell
a. Facts: University told Christian group it could not meet in school buildings. Designated
forum. University denied group because of religious worship subject-matter restriction.
Their reasonable restriction was justified using establishment clause.
b. Rule: Lemon Test
c. Holding: An equal access policy does not violate establishment clause because the primary
effect is not advancing religion. Caveat: in absence of empirical evidence that religious
groups will dominate
i. Open-forum policy clearly has secular purpose and avoids entanglement
ii. Incidental benefits to religious organization do not violate prohibition on
advancement of religion. Factors regarding whether is incidental include 1) no
imprimatur of state approval and 2) Forum is available to broad class of religious or
nonreligious speakers benefits broad spectrum
d. Possibility that commitment of resources would pose problem; however, only building
being given. Building cant be diverted to direct religious service
e. No attribution (like endorsement) nobody attributes political groups ideas to school
Lambs Chapel v. Center Moriches Free School Dist., 1993, White
a. Facts: NY Law lets people use school property for 10 specified purposes when not using as
school. The list does not include religious purposes and NY ct. held that religious groups
could not meet. Group wished to show a film, permission denied because film was churchrelated.
b. Holding: Establishment clause not a defense for denying access. No perceived endorsement,
see incidental factors in Widmar
i. 1) No school sponsorship
ii. 2) An open policy would benefit a wide variety of organizations
iii. New factor: Event would be open to public, not just church members - Perhaps
justifies using public land?
c. In order to avoid viewpoint discrimination allows same topics to be addressed by secular
orgs/speakers?
Bd. of Educ. v. Mergens, 1990 - Upheld law mandating equal access to public forums by any school
receiving federal funds. Establishment clause challenge rejected.
a. Meetings not held during instructional time
b. Did not interfere w/ educational mission of school
c. Not endorsed by school
d. Involved no participation by school officials
e. Held in atmosphere where religious club was one of many
f. No one coerced to attend
Rosenberger v. UVA, 1995 - Religious journal journal/speech still forum allocation of money.
Problem of resources committed to proselytizing. Court rules journal must be funded.
6. Good News Club - After-school program for elementary school children. Misattribution kids may
think school is sponsoring? Ct. allows Good News Club
7. Bronx Household of Faith, 2d. Cir. 2003 - Good News Club does not mean religious activity cannot
be treated as a distinct type of activity. Though line between worship and speech is blurred.
8. Capital Square Bd. v. Pinette, 1995
a. Facts: Government does not allow KKK to put up cross in capital square along with other
monuments. The state argues it would be an establishment.
b. Plurality, Scalia: Yes, religious expression does not violate establishment clause if: (1) it is
purely private; and (2) it occurs in a traditional or designated public forum, publicly
announced and open to all. Here, we only have incidental benefits, if any.
i. Does not apply endorsement test because there is no government speech
ii. Endorsment really means favoritism anyway: Allegheny grand staircase not open
to all; Lynch crche did not violate because of context
iii. No perceived endorsement erroneous conclusion by reasonable observer do not
count. People familiar with square know it is an open forum used for private speech.
Conflicting opinions are showcased
iv. If it is protected, the fact that it is religious does not matter it is protected speech
only obscenity can be regulated
c. Concurrence, OConnor no need to throw out endorsement test
d. Concurrence, Souter (Narrowest, controlling) endorsement test with disclaimer
e. Even though Souters is probably narrowest, lower courts more often cite the plurality they
like the bright-line rule
f. Scalia argues, convincingly, that not having a bright-line rule will put governments into a
catch-22 free exercise cl. in tension with estab. cl
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g. Display is temporary
Argument strategies - Competing Claims?
a. If P claims access of speech, Govt will say it is nonpublic - Not establishment
b. If P wants removal, Govt will say it is public - Private speech
Pleasant Grove v. Summum, 2009, Alito
a. Facts: Public park contains 15 displays, 11 of which donated by private individuals,
including 10 commandments like those in Van Orden. City rejected Summums application
to erect its own religious monument because it did not directly relate to the history of the city
and Summum did not have longstanding ties to the city.
b. Holding: Not a violation of estab. cl. government cannot be forced to speak
i. Monuments are government speech
ii. Such monuments can be controlled limited space in park
c. Concurrence, Scalia City should not be afraid that monuments violate estab. cl.
d. Concurrence, Souter if estab. cl. becomes an issue, ct should use endorsement
e. The court applied the forum doctrine where the govt property was capable of
accommodating a large number of public speakers. Parks can only contain a limited number
of monuments and still be used for recreation.
f. The display is PERMANENT they will be there (in the way) forever!
g. ACLJ brief like a library! Ct. doesnt buy it. Context of few monuments on public land
different than art collections?
Salazar v. Buono, 2010
a. Remember Summum things on government land is government speech if not a public
forum
b. Exchange between lawyer and Scalia (Jewish cemetery) reasonable observer? Lupu not fan
of endorsement; neither is Alito.
c. Options for avoiding conflict: secularize memorial. No real way to avoid insiders/outsiders
when using religious symbolism.
d. From here: on remand, transfer of land: what to do? Lupu: sign on land! Disclaimers are
interesting way to solve display problems, more info is a good thing.
License plates Hypo:
a. Vanity plates: Must allow competing viewpoints. EC attribution no. Like Pinette
b. Specialty Plates: Some groups are in and others are not based upon certain criteria groups
that discriminate in certain ways are not allowed viewpoint issues. Similar content
restrictions as well. States message like Summum? Or, designated public forum?
Acknowledgement and Accomodation arguments: Justices against endorsement test usually ok with
acknowledgement. Is it accommodation to allow a historical monument with religious undertones to
stand? Acknowledgement is stronger argument than accommodation in display cases, but limits of
acknowledgement has never been defined by the court.
III.
IV.
Tax-Payer Standing
A. Flast, 1968 exception for establishment clause cases
B. Valley Forge Christian narrows, only legislative spending
C. Hein again, only legislative spending, does not matter that congress made money available to executive
D. Winn, 9th Cir. 2010
V.
Free Exercise
A. Basic Principles
1. Obvious overlap between establishment and free exercise
a. Strong establishments will suppress free exercise
b. However, free exercise clause is there for a reason!
i. England: free exercise and establishment
ii. Secular society: no establishment and no free exercise
iii. America: no establishment and free exercise
c. Recall Lupus elements of religious freedom - Free exercise will do some distinctive work
2. Reynolds v. US, 1879
a. Facts: Reynolds is a mormon polygamist, charged with polygamy. Claimed religious
privilege
b. Holding: Government cannot interfere with mere belief and opinion, but may interfere with
practices.
i. Jefferson said so Virginia tradition
ii. Polygamy historically banned
iii. Human sacrifice analogy (counter: consent?)
iv. Regina v. Wagstaff allowed parents to let child die without seeing doctor but that
was negative act, not positive
c. Most often cited for belief/action distinction (Smith)
i. This distinction makes free exercise practically useless
ii. Unless excluded middle: coterminous with other rights
3. Cantwell v. Connecticut, 1940 JW playing phonograph
4. McDaniel v. Paty, 1978
a. Facts: statute barring clergy from holding office
b. Holding: Law deprived McDaniel of first amendment rights of free exercise
i. Law not useful for original purpose; no rational basis for discrimination
ii. Madison: such laws punish those in religious profession with deprivation of rights
iii. Witherspoon: it makes no sense that one can hold office after being rejected as unfit
for clergy but not while one is a respectable clergyman
c. Brennan, concurrence: establishment clause not only not a defense, it actively prohibits such
legislation
d. Exclusion/discrimination case equal protection
5. In the beginning, free exercise tied to other rights free speech, free association
B. Mandatory accommodation - Religious privilege/exemption or religious discrimination?
1. Sherbert v. Verner, 1963, Brennan
a. Facts: 7th-day Adventist fired because she refused to work on Saturday. Applied for
unemployment. Denied because she could work, but made personal choice not to.
b. Rule: Free exercise must be accommodated if:
i. 1 Reason for exemption request is religious
ii. 2 There is a substantial burden is placed on free exercise of that religion.
iii. 3 Compelling state interest does not outweigh the interest of free exercise rights.
Only gravest abuses, endangering paramount interest give occasion for permissible
limitation. If compelling interest exists, must use least restrictive means.
c. Holding: Yes burden, no compelling interest outweighing. State cannot condition benefits so
as to constrain a worker to abandon religious convictions respecting a day of rest.
i. Burden - It may be indirect, but the purpose and effect matters indirect effect is just
as bad. Pressure upon her to forego her religious convictions. Speiser v. Randall
does not work to say benefits are a privilege. Granting of benefits may not be used to
deter free exercise. There does appear to be burdensome discrimination the statute
excuses Sunday worshippers.
ii. No Compelling Interest - Interest in preventing fraudulent claims is not considered
because state did not bring up this argument to state supreme court. Also, narrowly
tailored legislation can prevent fraudulent claims. Unlike Braunfeld v. Brown state
had an interest in choosing one day for rest. It did so by selecting majority Christian
day of rest. Simply made other faiths more expensive, but secular purpose could not
have been performed another way.
iii. Exemptions are not establishing religion simply enforcing government neutrality in
the face of religious differences
d. Stewart, concurrence: Concur because free exercise demands positive protection,
establishment clause read too broadly. There seems to be a conflict between establishment
clause and free exercise clause jurisprudence
e. Harlan, Dissent: Regardless of whether it was religious, it was still a personal reason. This
overrules braufeld v. brown. Forces court to figure out whether behavior is religiously
motivated. Const. allows state to provide and define religious exemption or not.
f. Coercion more evident in Reynolds! Still, court finds coercive burden in disqualification.
Change?
g. Is it about privilege? Or discrimination? - Is it like Paty? Going back, the court does mention
that Sunday privilege exists and not others.
2. Versions of coercion understanding Sherbert v. Verner
a. 1 burden on religious practice personal reasons
b. 2 - secular causes privileged over analogous religious causes- working on certain days
preferred over working on other days - compelling interest
c. 3 sectarian discrimination other exemptions
3. Thomas v. Rev. Bd. of Ind. Employment, 1981, Burger
a. Facts: Thomas left his job when he was reassigned from materials production to actual
weapons production. As a JW, he did not think weapons production was moral. He took a
stricter interpretation of JW scripture than his coworker. Denied unemployment benefits.
b. Holding: Religious, burden, and no compelling interest. Violates FE cl.
i. Testimony crucial in deciding whether it is religious belief. Specific articulation does
not matter. Intrafaith disagreement does not concern ct.
ii. Burden because choice forced between fidelity to religious belief or cessation of
work.
iii. No compelling interest/least restrictive means. No evidence that bad situation might
result from exemptions.
iv. No establishment simply accommodation under Verner
c. Can free exercise clause be construed to protect moral conscience? (Seeger)
d. How is it different than Sherbert?
4. Wisconsin v. Yoder, 1972, Burger
a. Facts: Didnt want to send kids to high school. Wanted them to learn Amish ways at home.
b. Rule: Sherbert v. Verner test
c. Holding: Religious, burden, and no compelling interest. Violates FE
i. Religious, not person preference: Yes, belief in pulling kids from high school is a
deep religious conviction, shared by organized group, and intimately related to
daily living. Historical way of life. Expert testimony/Evidence of sustained faith.
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ii. Burden exists: Even if its on conduct not belief (contra Reynolds?). Uniformity does
not prevent burden if it unduly burdens.
iii. No Compelling interest: Amish sufficiently prepare their children for life. Amish
have been a successful social unit. There is social value to having groups who
seclude themselves from society. Amish children still receiving vocational education.
No evidence that Amish children are being exploited.
iv. Addressing dissents concerns: Holding does not bear on the situation where parent
and child have conflicting interest. State has no right to direct childs religious
upbringing. Strong presumption in favor of parents right to direct childs education
(Pierce).
d. Dissent, Douglas: Liberty of children? Religion is an individual experience (this is western
bias!). Parents are holding kids back from experiencing world. The law and order record of
the Amish is irrelevant.
e. In Yoder, Court seems to use version 1 of Verner
f. Courts are not buying that secular humanism is a religion
g. Exemptions from secular criteria usually lose: Not a substantial burden, Compelling interest.
h. Yoder, is a very narrow, as-applied decision
Formulation of accommodation cases:
a. Trigger: Substantial burden on religious practice
i. Definition of religion tax exempt status. Argument by analogy. Sincerity in
religious beliefs the more material incentives, the more skeptical about sincerity.
ii. Burden choice between x and faith suffices as burden
b. Test - non-exemption necessary to compelling state interest
c. In early 80s, trigger part nuanced, test is weakened
d. Steady erosion toward Smith
US v. Lee, 1982, Burger
a. Facts: Amish carpenter failed to file social security tax returns for employees
b. Holding: paying taxes and receiving benefits is religious burden, but there exists a
compelling interest in social security
i. There is already an exception for self-employed people
ii. Mandatory participation is indispensable to the fiscal vitality of the s.s. system
iii. There is no pricinpled way to distinguish between general taxes and those imposed
under s.s. (tax, not a penalty)
iv. Tax system could not function if religious groups could object to spending of money
c. Self-employed exemption only applies to religions in existence before 1950s const.
problems?
d. Is uniformity really what the case is about s.s. is earmarked
e. Compelling interest test is weakened it is met, but in a weak way
Bob Jones University v. US, 1983, Burger
a. Facts: BJU prohibits interracial dating
b. Holding: Loss of 501c3 status is huge religious burden, but state has a compelling interest in
prohibiting racial discrimination
c. No discussion of strict as-applied exemption test further weakened
Goldman v. Weinberger, 1986, Rehnquist
a. Facts: Goldman not allowed to wear his yarmulke on military base because it is not part of
uniform
b. Holding: Regulations challenged reasonably and evenhandedly regulate dress in the interest
of the militarys interest for uniformity. Court must give great deference to the military, even
when regs challenged on first amendment grounds.
i. Professional judgment of air force is that standardized uniforms encourage
subordination or identity in favor of the group only ranks matter
ii. Military life may be more objectionable, but first amendment does not require
military to accommodate
c. Concurrence, Stevens: Uniformity is good because it means uniform, equal treatment for all
members. Exceptions would require valuation how far do the exceptions go?
d. Brennan, Dissent: Decision effectively bars orthodox jews from fulfilling religious duty.
Military must state a specific reason for uniformity, not just state that they want uniformity.
Will uniformity be lost by a yarmulke? Current exceptions allow non-visible religious things
doesnt this discriminate against religions that wear visible things?
e. Special enclave special concerns, OLone prison special too
f. Dominant culture concerns
9. Lyng v. Northwest Indian Cemetery Protective Assoc., 1988, OConnor
a. Facts: govt wants to permit harvesting and construct a road through a portion of national
forest that has been traditionally used for religious purposes by three native American tribes.
b. Holding: No substantial burden because no coercion to violate or penalty for not violating
religious belief
i. Bowen v. Roy, 1986: Mother did not want daughter to be given social security
number. Ct. ruled that FE clause could not be understood to require govt to conduct
its internal affairs in ways which comport with religious beliefs of particular citizens.
ii. Cannot weigh the centrality of religious belief or its objective nature that would
require determining truth of underlying religious beliefs
iii. The crucial word is prohibit the FE clause is written in terms of what govt cannot
do to individual, not what individual can command government to do. It is
government land! Government could not function if it tried to satisfy all citizens
beliefs!
iv. Under Yoder, accommodation only required when the statute is coercive in nature.
c. Dissent, Brennan: If religious groups show centrality, and that govt action will prevent such a
central practice, it will be a substantial burden regardless of the nature of coercion.
Slippery slope of exceptions not before the court today.
d. Public land is it really an internal govt affair? Lupu: easement on land?
10. Employment Division v. Smith, 1990, Scalia
a. Facts: Unemployment comp not granted to Smith. Fired from drug rehab because he smoked
Peyote on his own time.
b. Holding: The 3-part Sherbert test is inapplicable to challenges against generally applicable,
neutral laws. FE does not grant a privilege.
i. A permissible reading of the text is that FE clause prohibits taxes enabled with the
object of preventing FE. However, such a reading does not prevent the govt from
enacting a tax that might have the incidental effect.
ii. Yoder is about parental rights (Pierce, etc.) Hybrid rights
iii. Sherbert/Thomas unavailable for work without good cause. Those cases have
nothing to do with across-the-board criminal prohibition
c. OConnor, concurrence: Rejects courts reasoning. Exercise is tied to action.
d. Not limited to criminal law, civil law violations face same fate
e. More restrictive than Reynolds? At least Reynolds alludes to peace and good order as a
prerequisite to general applicability stricter?
f. After Smith, State constitutions appealed to, state legislation, and RFRA passed
g. Is Smith Correct? Line drawing. Smaller govt at founding.
h. Did Smith just confirm what the law was or did it make a difference? Some cases that would
have bee`n uncertain are now dead-losers.
i. Lower courts did not let hybrid claims expand religion clauses
j. SYT required determination of substantial burden perhaps killed Smith
11. Lukumi Babalu v. Hialeah, 1993, Kennedy
a. Facts: Santeria religion practices animal sacrifice. City outlaws cruel killing of animals.
b. Rule: A law that is not generally applicable or neutral toward religion must meet compelling
interest/least restrictive means standard
c. Holding: Not neutral, not generally applicable ordinances do not survive strict scrutiny
standard
i. Not neutral - the ordinances had as their object the suppression of religion. The
ordinances targeted the central element of Santeria worship. Use of words sacrifice
and ritual in statute.
ii. Not generally applicable because they are underinclusive they only achieve govts
stated interest as against religious conduct. In effect, the statutes only really punish
Santeria. Exemptions for kosher slaughter. Exemptions for small food
establishments. Smith noted that, when exemptions are available, govt may not
refuse exemption for religion without compelling reason.
iii. Statutes ban unnecessary killing atty general admitted that religious killing is
classified as unnecessary. Government deciding religion is unnecessary!
iv. Do not meet strict scrutiny - Overbroad they prohibit Santeria sacrifices even if
carried out in a sanitary manner.
d. Notice that post-smith, Lukumi test does not include substantial burden is it because this
is a religious question? What about disputes over property? General rule: Courts should
defer to internal decision-making body, if it is a hierarchical church. If courts can find
neutral principles of law, it can help them resolve dispute.
e. Lukumi interpretations of Smith: Does one exemption means religion require exemption or
compelling interest? Or, do exemptions show non-neutrality, but one exemption is not
dispositive?
12. Christian Legal Society v. Martinez not FE case, but FE undertones
a. Might have been a test of what is and isnt a neutral rule but wasnt lawyered that way
b. All-comers was definitely a neutral rule, but what about written rule?
c. No showing of impact on religious freedom
C. Permissible statutory Accommodation
1. City of Boerne v. Flores, 1997, Kennedy
a. Facts: RFRA requires all federal government and state governments to follow pre-smith SYT
FE test. Justified under 14th amend.s enforcement power.
b. Holding: RFRA struck down. 14th amend.s enforcement power is remedial. Ct demands
congruence and proportionality to documented harm.
2. Gonzales v. O Espirita Beneficiente Uniao Do Vegetal, 2006, Roberts
a. Facts: Drug case - RFRA applied to Fed govt. District ct found evidence of dangers of drug
use in equipoise. Feds do not even challenge const. of RFRA.
b. Ct simply has to apply RFRA, no general applicability test from Smith.
c. Still might be subject to state drug laws, but exempted from federal ones.
3. RFRAs probably not seperation of powers problem. Simply modifies congresss bills enacted
through art. I powers. Using supreme cts old test does not mean congress is usurping power.
4. State RFRAs: Lund article - State RFRAs ignored. Establishment clause problem? neutrality
between religion and non-religion religious privilege? Conflict between the clauses? Room in
between? Imposition on third-parties?
5. Estate of Thornton v. Caldor, 1985, Burger
a. Facts: Civil Rights Act demands reasonable accommodation. This law went further:
Connecticut law did not allow any employer to fire an employee for not showing up to work
on the employees chosen Sabbath.
b. Rule: applied Lemon test
c. Holding: Statute goes beyond incidental or remote effect of advancing religion its primary
effect is advancing a particular religious practice. Violates EC
i. The statute arms Sabbath-observers with an unqualified and absolute right not to work
on that day
7. Caldor/Amos test:
a. Is there a government burden on religious freedom? Accommodation is dependent upon
relieving a burden, not sponsoring preference.
b. govt merely allowing church to fire, not giving church force of law.
c. Sect-neutral?
8. RLUIPA
a. Prisoner section of RLUIPA responding to OLone v. Shabazz great deference to prison
officials, allows even religious-specific rules
b. General Rule:
i. Substantial burden on religion
ii. Compelling interest/least restrictive means
c. Const. of land use not test by s. ct. but other cts rejected such challenges
9. Cutter v. Wilkinson, 2005, Ginsburg
a. Facts: congress held 3 years of hearing finding that frivolous or arbitrary barriers impeded
institutionalized persons.
b. Holding: There is room between the joints of the religion clauses. Compare Smith with
Amos. RLUIPA fits within the corridor between the clauses.
i. Const. because it alleviates government created burdens
ii. Prescriptions are neutral among different faiths
iii. Prisoners are dependent upon government permission to do things
iv. Statutory response to Goldman accommodation of religious apparel
v. RLUIPA does not elevate accommodation over safety: Distinguishes Caldor. Context
matters in statute application. Mindful of effects on prisoners/guards, security of
prison, and the fact they are prisoners.
vi. Amos religious accommodations need not come packaged with benefits to secular
entities.
c. Lupu: In order to justify religious accommodation, religious liberty must be substantially
burdened as in Prisons.
d. Minimize religious privilege by making religious accommodations available to the
nonreligious, if possible
10. Const. of RLUIPA land use not test by s. ct. but other cts rejected such challenges
a. Issue 1: typically, whether forcing church to spend more money is a substantial burden
b. Issue 2: Compelling interest third party interest (neighbors) and interest of city (taxes)?
Least restrictive means (regulate size)?
c. In essence, who should give? All about trade-offs
VI.
Intro/History
A. All human organizations feel need for a particular policy on religion
1. Establishment
a. Character of the state
2. Exercise
3. Why?
a. Rival to state
b. Potential partner
c. Produces culture
i. loyalties
ii. Produces norms
4. First assignments show narrative of religion policies in the US
B. Classic establishment
1. Church of England strong-form establishment
a. direct government control over appt of clergy
b. bishops in house of lords
c. parliament approved articles of faith and book of common prayer
d. Religion tests for all important offices
i. Colonies also had this requirement, though a looser version
e. Mandatory church attendance - fines
C. Articles of Confederation had a weak policy
1. Mutual defense pact state attacked for any reason religion mentioned as example 1
D. Varied range of religion policies as of 1780s
E.
F.
G.
H.
I.
1. drafting history
a. House
i. Madisons draft conscience disconnects rights of conscience and religious belief
concerned w/ coercion
ii. Carroll, catholic, really concerned about coercion
iii. touching formulation voted down
b. Senate
i. Votes down non-preferentialist clause, decides that congress shall not establish
articles of worship
c. Is free exercise = to conscience, or broader?
d. Respecting an establishment no drafting history with this phrase
2. 18th and 19th century practice
a. Thanksgiving proclamations, chaplain, money for missionaries
3. 19th century commentary
a. Joseph Story govt can promote Christian good order
4. the second disestablishment (14th amendment, 1868)
a. by the 1830s, state establishments were gone
b. Christian foundations of common law are challenged
c. Significant immigration
d. Freedmen were denied religious freedom by the southern states