Freedom of Religion

Stephanow 2009

Different views about religionBritain v. America

Church-State Relationships in America ARTICLE VI

“…no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Church-State Relationships in America 1ST AMENDMENT

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

The 1st Amendment has been incorporated by the 14th Amendment

“…nor shall any State deprive any person of life, Liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Incorporation means that the Supreme Court has said that the 1st Amendment also applies to state and local laws, and activities.

Questions about FOR Why was religion placed first of all rights

in the Bill of Rights? What did Thomas Jefferson mean when he

said, “a wall of separation between church and state?”

Why were there so few cases dealing with religion between 1791 & 1940?

How has the Supreme Court interpreted religion cases?

How has the Supreme Court interpreted religion cases?

Display of other religious symbols Van Orden v. Perry (2005)

Does a 10 Commandments monument on the grounds of a state capitol building, violate the Establishment Clause, which bars the government from passing laws “respecting an establishment of religion?”

Establishment Clause Cases:Prayer in Public Schools

Engel v. Vitale (1962) Can you have organized prayer in public schools, even if it’s voluntary and

nondenominational? Abington v. Schempp (1963)

Can you read the Bible in public school during class time? Can you say the Lord’s Prayer?

More school issues…

Lee v. Weisman (1992) Can you have a prayer at graduation, given by a clergyman?

Jones v. Clear Creek ISD (1995) Can students initiate and give the prayer at graduation?

“Clear Creek Prayer Policy” The senior class would take a vote to see if a majority wanted a prayer at

graduation or not. If the majority did want a prayer, the students would then select the

student(s) to say the prayer(s) from a list of volunteers. Administration was not allowed to participate in the vote other than to

“advise.” Admin. could look at prayer only to make sure that is was nonsectarian, nondenominational, and nonprothelytizing.

More school issues… 5th circuit said student initiated and led is OKAY. 3rd circuit said it was NOT okay. 11the circuit said is was OKAY. Fed. Dist. Ct. in VA ruled is was NOT okay. Why won’t the SCt take a case and decide it for good? Some legal scholars believe it was decided in the Santa

Fe case. Federal Guidance Letter to Superintendents (2003)

So what about prayer at graduation at CWHS? We are to follow the 5th Circuit ruling.

More school issues… Santa Fe v. Doe (2000) Does the Santa Fe Independent School District's policy

permitting student-led, student-initiated prayer at football games violate the Establishment Clause of the First Amendment?

Yes. (6-3) Violates the Establishment Clause. They said that the football game prayers were public speech authorized by a government policy and taking place on government property at government-sponsored school-related events and that the District's policy involved both perceived and actual government endorsement of the delivery of prayer at important school events. Such speech is not properly characterized as "private," wrote Justice Stevens for the majority. In dissent, Justices noted the "disturbing" tone of the Court's

opinion that "bristle[d] with hostility to all things religious in public life."

Establishment Clause Cases:Aid to Parochial Schools

Lemon v. Kurtzman (1971) Set up a 3-part test

The secular purpose test —does the law have a secular purpose? What is the intent of the legislation?

The primary effect test —Does the law either advance or hinder religion?

The excessive entanglement test —does the law/program promote a high degree of interaction between religion and civil authorities?

Lemon-aid

Also in St Law book on p. 480

Establishment Clause Cases: Aid to Parochial Schools

Religious School Clubs Westside v. Mergens (1990)

Equal Access Act allows religious groups on public school campuses, if that campus allows other clubs/organizations.

Evolution v. Creationism or Intelligent Design Scopes Monkey Trial (1920’s)

Schools were to teach creationism

—not Darwinism. Since—the Courts have ruled the opposite.

There cannot be state laws forbidding the teaching of evolution and requiring the teaching of creationism. Courts usually don’t even want creationism or ID taught at all.

Pledge Cases Elk Grove v. Newdow (2005)

Do the words “one nation under God” violate the establishment clause? Is it a government endorsement of religion?

Croft v. Perry (2007) Do the words “one state under God” added to the

Texas Pledge, violate the establishment and free exercise clause? “…the Court DENIES Plaintiffs’ motion because

Plaintiffs have failed to show they will suffer irreparable injury if the injunction is not granted.” 8/28/07 U.S. District Court for the Northern District of Texas

AN ACT relating to pledges of allegiance to the United States and Texas flags and to observance of one minute of silence in public schools.BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:SECTIONA1.The heading to Section 25.082, Education Code, is amended to read as follows:Sec.A25.082.SCHOOL DAY; PLEDGES OF ALLEGIANCE; MINUTE OF SILENCE.SECTIONA2.Section 25.082, Education Code, is amended by amending Subsection (b) and adding Subsections (c) and (d) to read as follows:(b) The board of trustees of each school district shall require students, once during each school day at each school in the district, to recite:(1) Tthe pledge of allegiance to the United States flag in accordance with 4 U.S.C. Section 4*, and its subsequent amendments; and

[*which states that you must stand.](2) The pledge of allegiance to the state flag in accordance with Subchapter C, Chapter 3100, Government Code.(c) On written request from a student’s parent or guardian, a school district shall excuse the student from reciting a pledge of allegiance under Subsection (b).

[This is for anyone with a religious or political objection.](d) The board of trustees of each school district shall provide for the observance of one minute of silence at each school in the district following the recitation of the pledges of allegiance to the United States and Texas flags under Subsection (b). During the one-minute period, each student may, as the student chooses, reflect,

pray, meditate, or engage in any other silent activity that is not likely to interfere with or distract another student. Each teacher or other school employee in charge of students during that period shall ensure that each of those students remains silent and does not act in a manner that is likely to interfere with or distract another student.SECTIONA3.This Act applies beginning with the 2003-2004 school year.

FREE EXERCISE CLAUSE

You are free to exercise any religion you want; or no religion at all…

but there are limits.

You cannot do anything that might harm yourself or violate the rights of others.

Cannot do anything that would violate the law.

Another 3-part test: Has the government imposed a burden on the free

exercise of the plaintiff’s religion? Does the religion demand the kind of behavior in

question and, Is the plaintiff engaged in good faith in that religion?

Does a compelling state interest justify the burden placed on the exercise of religion? State’s interest must be of the greatest importance to

take precedence over the plaintiff. Does the state have an alternative way of

achieving its goals rather than infringing on the free exercise of the individual’s religion?

New Texas law: Religious Viewpoints Anti-Disc. Act

The bill requires that school districts adopt and implement a policy establishing a limited public forum for student speakers at school events, and ensures other protections for students expressing their religious viewpoint.

Saluting the Flag Cases West Virginia v. Barnette (1943)

Can the state force a student to salute the flag?

Other Free Exercise Issues: Polygamy

(U.S. v. Reynolds, 1879)

Warren Jeffs Polygamist

video

Jeffs was convicted in Sept., 2007, of being an accessory to rape for coercing a 14-year-old girl to marry her 19-year-old cousin.

Other Free Exercise Issues: Snake handling

Snake handling at the Pentecostal Church of God, Lejunior, Harlan County, Kentucky 09/15/1946 (National Archives and Records Administration). The ceremony also included laying on of hands. Photo by Russell Lee.

Other Free Exercise Issues:

Parents refusing child vaccinations? Parade permits for religious groups? Military Service (conscientious objector)?

Conscientious Objection and Alternative Service

What is a conscientious objector? One who is opposed to serving in the armed

forces and/or bearing arms on the grounds of moral or religious principles.

How to Apply One making a claim must appear before his

local board to explain his/her beliefs. May provide written documentation or

include personal appearance by people he knows who can attest to his claims. The written statement must explain: How s/he arrived at her/his beliefs; and The influence her/his beliefs have had on how

s/he lives her/his life.

Board Action The local board will decide whether to grant

or deny CO classification based on the evidence a registrant has presented.

One may appeal a Local Board’s decision to a Selective Service District Appeal Board. If that Board also denies the claim, but the vote is not unanimous, he may further appeal the decision to the National Appeal Board.

Who Qualifies? Reasons may be religious in nature, but

don’t have to be. Reasons for not wanting to participate in a

war must not be based on politics, expediency, or self-interest.

In general, the lifestyle prior to making the claim must reflect the current claims.

Service as a CO Two types are available:

Selective Service Alternative Service Program—for those opposed to any type of military service.

Conservation Caring for the very young or very old Education Health care

Length of service will equal the amount of time a man would have served in the military, usually 24 months.

Armed Forces training or duties that do not include using weapons.

Other Free Exercise Issues:

Ministers and public office? Days off of work for religious

holidays?

Other Free Exercise Issues: Deny unemployment to a Native American

Church member for being fired for smoking peyote?

Peyote—Native American Church“Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.” AMERICAN INDIAN RELIGIOUS FREEDOM ACT, AMENDMENTS OF 1994 http://www.nativeamericanchurch.com/law.html

Peyote—Native American Church

6-3 for the Employment Division Justice Scalia, writing for the majority,

observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate.

Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.

Employment Division v. Smith (1990)

Other Free Exercise Issues:Religious group sacrifice animals? Church of the Lukumi Babalu Aye v. Hialeah (1992) Question: 

Did the city of Hialeah's ordinance, prohibiting ritual animal sacrifices, violate the First Amendment's Free Exercise Clause?

Conclusion: 9-0, Yes. The Court held that the ordinances were neither neutral nor generally applicable. The ordinances had to be justified by a compelling governmental interest and they had to be narrowly tailored to that interest. The core failure of the ordinances were that they applied exclusively to the church. The ordinances singled out the activities of the Santeria faith and suppressed more religious conduct than was necessary to achieve their stated ends. Only conduct tied to religious belief was burdened. The ordinances targeted religious behavior, therefore they failed to survive the rigors of strict strutiny.

THE END!