What Is The Difference Between The Establishment Clause And The Free-Exercise Clause?

Religious liberty issues are now center stage at the U.S. Supreme Court. In just the last two months, the Court has already made dramatic changes to its First Amendment jurisprudence, and it is likely to go even further. By overturning longstanding precedent on these issues, the Court has not guaranteed religious liberty for all but, instead, religious favoritism for some.

This article highlights the ideological underpinnings of those changes and gives an idea of what’s likely to come—especially how those changes will harm the most marginalized groups. Since the founding of this country, the Religion Clauses of the First Amendment—the Establishment Clause and the Free Exercise Clause—have been rightly understood to jointly demand government neutrality to religion.

The Free Exercise Clause recognizes our right to believe and practice our faith, or not, according to the dictates of conscience. And the Establishment Clause bars the government from taking sides in religious disputes or favoring or disfavoring anyone based on religion or belief (or lack thereof). Since the founding of this country, the Religion Clauses have been rightly understood to jointly demand government neutrality to religion. RAWPIXEL But no longer. A majority of the current Court now believes that the two clauses are inherently at odds and that long-settled anti-establishment interests—prohibition of government funding for religion, to name just one—get in the way of the free exercise of religion.

• And the justices have made clear that, to them, free exercise is what matters.
• Take Carson v.
• Makin, where the Court recently concluded that the Free Exercise Clause demands public funding of religious education.
• Carson presented a challenge to Maine’s education-funding program.
• Because Maine is so sparsely populated, and many students live in areas without their own public schools, the state provides vouchers for those students to get the equivalent of a public education—either at a public school somewhere else in the state or at a private school that has nonsectarian instruction.

Parents challenged the programming, arguing that they have a free exercise right to use those state funds for religious education. And on June 21, the Court concluded for the first time that a state is required to allow vouchers (that is, taxpayer dollars) to be used for religious education.

1. That’s a sharp turn from earlier cases ( Zelman v.
2. Simmons-Harris and Locke v.
3. Davey ), which held that when it came to state funds for religious schools, neutrality was key; states could include religious schools in broad voucher programs but were not required to fund religious education.
4. The interests in denying state funds to religious education aren’t theoretical.

In Carson, for example, one of the schools at issue teaches students to reject Islam. Another requires teachers to agree that “homosexuals and other deviants” are “perverted.” Forbidding forced taxpayer subsidy of religious education is one of the very reasons that the Establishment Clause exists in the first place.

But by striking down Maine’s program, the Court has required Islamic taxpayers to fund education denigrating their religion, forced LGBTQ families to pay for students to learn that LGBTQ people are perverted, and enlisted every Maine taxpayer in funding religious ministry all in support of a supposed free exercise right, unknown at the Founding, to use state funding for religious education.

But it doesn’t stop there. As Justice Sotomayor wrote in dissent, this decision “continues to dismantle the wall of separation between church and state.” Under this Court, the separation “that the Framers fought to build” has itself become a constitutional violation.

A majority of the justices appear to believe that free exercise is so important that it must supersede all other rights—including equal protection, due process, and the whole panoply of constitutional and statutory protections against invidious discrimination. It has long been settled that simply having a religious objection to a law does not constitutionally exempt someone from that law.

Under Employment Division v. Smith, for example, a law is constitutional, even if it burdens some religious practice, as long as the law is neutral toward religion (meaning it applies to religious and nonreligious beliefs alike). Holding otherwise would, as Justice Antonin Scalia noted in Smith, “make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Such an overreading of the free exercise right could “open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” Since Smith, however, there has been a push to undermine the decision and privilege free exercise claims.

• Advocates of what is labeled the “most-favored nation” theory argue that heightened scrutiny is required any time a law includes any secular exemptions without comparable religious ones.
• Because almost every law has some exemptions and could conceivably burden some religious practice, the most-favored nation theory does exactly what Justice Scalia cautioned in Smith : it permits each person, corporation, or employer to “become a law unto himself.” Despite the warnings, the Supreme Court seems sympathetic to the theory.

In the 2020 term, all eyes were on Fulton v. City of Philadelphia, in which the Court was explicitly asked to overrule Smith, But while Fulton was pending, the Court dramatically changed free exercise law on the so-called shadow docket (meaning the case was decided without the benefit of full briefing or oral argument).

In Tandon v. Newsom, the Court enjoined California from enforcing COVID-19 restrictions on private gatherings—including at-home religious gatherings—and explained that “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.” Never mind that the “comparable” secular activities–hardware stores and nail salons–were entirely unlike at-home gatherings.

The result was nothing less than religious favoritism. And although Fulton did not affirmatively overrule Smith, it significantly undermined Smith ‘s holding. In Fulton, Philadelphia refused to contract with a religious foster care agency that would not certify same-sex couples as foster care parents.

The Court held that because the city’s anti-discrimination policy allowed for some nonreligious exemptions, it was not neutral toward religion. Therefore, under Smith, the city’s policy had to satisfy strict scrutiny—which the Court decided the city could not do. The Court ignored that the permissible exemptions—which had never been granted—were for the placement of children and not for the certification of parents.

While the Fulton decision was celebrated for applying—rather than revisiting— Smith, it also demonstrates how religious favoritism can take hold even if Smith survives. By playing fast and loose with the definition of “comparable” treatment of religion and nonreligion, courts can invalidate almost any law.

But religious favoritism doesn’t even end there. The Court has decided that religion is enough to opt out of certain civil rights laws entirely. Take, for example, the Court’s decisions in Hosanna-Tabor v. EEOC (2012) and Our Lady of Guadalupe v. Morrissey-Berru (2020), which applied the ministerial exception.

Under that doctrine, religious organizations are not held liable for certain types of discrimination against their ministers. When the exception applies—that is, when someone is found to be a minister—employers need not show that religious beliefs had anything to do with their discriminatory acts toward an employee.

The victim of the discrimination simply loses the protection of core civil rights laws like Title VII and the Americans with Disabilities Act, among others. And despite what the name suggests, the ministerial exception applies broadly so long as the employee plays an important role in carrying out the employer’s religious mission.

Courts have applied it to elementary school teachers, an ESL professor, and others, including even an organist. And just this term, four justices indicated that they would go further, allowing statements in contracts and employee handbooks to determine whether an employee is a minister, even if those statements don’t reflect what the employee actually did.

• Even in Bostock v.
• Clayton County (2020)—a milestone civil rights victory that held that Title VII protects against employment discrimination based on sexual orientation or gender identity—the Court laid the groundwork for religious exemptions to skirt the ruling.
• Not only might some employers avail themselves of the ministerial exception or certain Title VII exceptions for religious organizations, but the Court implied that any employer might avoid Title VII’s requirements by relying on the Religious Freedom Restoration Act—RFRA—which Justice Neil Gorsuch called a “superstatute.” Under RFRA, the government must satisfy strict scrutiny when its actions “substantially burden” someone’s religious exercise.

The Court’s approving reference to RFRA validated the idea that an individual’s personal religious beliefs might outweigh the government’s interest in stopping discrimination. The Constitution was once widely understood to guarantee religious freedom and equal protection for everyone,

In the 1968 case Newman v. Piggie Park Enterprises, for instance, the Court described as “patently frivolous” Piggie Park’s argument that, because a restaurant owner’s religious beliefs “compel him to oppose any integration of the races,” he was exempt from Title II of the Civil Rights Act and should be permitted to refuse service to Black customers.

The Court’s current turn toward religious exceptionalism suggests, remarkably, that Piggie Park’s retrograde requests failed only because they came 50 years too early, We hope this trend of religious favoritism is only a short detour and that we return to our constitutional underpinnings.

What is the difference between the establishment clause and the free exercise clause unit test?

What is the difference between the establishment clause and the free-exercise clause? The establishment clause stops the government from favoring a religion while the free exercise clause allows people to express their religion.

Where are the establishment and free exercise clauses?

First Amendment and Religion The First Amendment has two provisions concerning religion: the Establishment Clause and the Free Exercise Clause. The Establishment clause prohibits the government from “establishing” a religion. The precise definition of “establishment” is unclear.

Historically, it meant prohibiting state-sponsored churches, such as the Church of England. Today, what constitutes an “establishment of religion” is often governed under the three-part test set forth by the U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S.602 (1971). Under the “Lemon” test, government can assist religion only if (1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state.

The Free Exercise Clause protects citizens’ right to practice their religion as they please, so long as the practice does not run afoul of a “public morals” or a “compelling” governmental interest. For instance, in Prince v. Massachusetts, 321 U.S.158 (1944), the Supreme Court held that a state could force the inoculation of children whose parents would not allow such action for religious reasons.

1. The Court held that the state had an overriding interest in protecting public health and safety.
2. Sometimes the Establishment Clause and the Free Exercise Clause come into conflict.
3. The federal courts help to resolve such conflicts, with the Supreme Court being the ultimate arbiter.
4. Related to Engel v.
5. Vitale that deal with religion in schools and the Establishment Clause of the First Amendment.

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

Which United States Supreme Court decision was based on the free exercise clause?

George Reynolds was a party to Reynolds v. United States (1879), in which the Supreme Court ruled unanimously that a federal law prohibiting polygamy did not violate the free exercise clause of the First Amendment. The Court’s decision was among the first to hold that the free exercise of religion is not absolute.

What is the free exercise clause quizlet?

Free exercise clause. Congress may not stop you from holding any religious beliefs you choose or having no religious beliefs at all. Government may not unfairly or unreasonably limit your right to practice any religios beliefs you wish.

Which example violates the Free Exercise Clause?

A case in which the Court held that a state law prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or ‘sectarian,’ instruction violates the Free Exercise Clause of the First Amendment.

What are the three interpretations of the establishment clause?

Accommodationism is a way to interpret First Amendment – Jurists generally take one of three approaches — secularism, strict separation, or accommodationism — to interpret the First Amendment’s establishment and free exercise clauses concerning religion.

Secularism has been defined as opposition to religion in the public arena. In (1947), wrote that separatism asserts a “high and impregnable ” between church and state. Separatists find any law regarding religion in violation of the First Amendment. Accommodationism rests on the belief that government and religion are compatible and necessary to a well-ordered society. Accommodationists assert that in the First Amendment the framers intended to promote cooperation between government and religion, or government hostility toward religion. They argue that because the forbids Congress to make laws regarding “an establishment,” rather than “the establishment” of religion, government must not show or the religious versus the nonreligious. According to accommodationists’ interpretation, the First Amendment permits governmental actions that promote religion, but not religious institutions.

What is the difference between pure speech and symbolic speech?

Pure speech is verbal expression; symbolic speech is actions and symbols ; both are protected by the First Amendment.

Is animal sacrifice legal in the US?

Legislation Involving Animal Sacrifice in the Name of Religious Freedom – In the United States, animal sacrifice is protected under the First Amendment as a form of religious expression. This means that, even though animal cruelty laws exist, religious groups are exempt from them when it comes to animal sacrifice.

1. One example of religious protection involving animal sacrifice can be found in a Supreme Court case that took place in New York.
2. In 1993, the Supreme Court ruled in favor of a Santeria church that had been charged with animal cruelty after sacrificing a dozen chickens.
3. The court ruled that animal sacrifice is a form of religious expression and was therefore protected under the First Amendment.

This is an outdated and barbaric law that needs to be changed. We need to start putting pressure on our legislators to update animal cruelty laws to include punishment for animal sacrifices done in the name of religion. We need to clarify that this type of animal torture and killing is not acceptable in today’s society, regardless of whether or not the animal is a dog or a goat.

Is freedom of speech freedom of expression?

Number 10 Freedom of speech, of the press, of association, of assembly and petition – this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. The Supreme Court has written that this freedom is “the matrix, the indispensable condition of nearly every other form of freedom.” Without it, other fundamental rights, like the right to vote, would wither and die.

1. But in spite of its “preferred position” in our constitutional hierarchy, the nation’s commitment to freedom of expression has been tested over and over again.
2. Especially during times of national stress, like war abroad or social upheaval at home, people exercising their First Amendment rights have been censored, fined, even jailed.

Those with unpopular political ideas have always borne the brunt of government repression. It was during WWI – hardly ancient history – that a person could be jailed just for giving out anti-war leaflets. Out of those early cases, modern First Amendment law evolved.

Many struggles and many cases later, ours is the most speech-protective country in the world. The path to freedom was long and arduous. It took nearly 200 years to establish firm constitutional limits on the government’s power to punish “seditious” and “subversive” speech. Many people suffered along the way, such as labor leader Eugene V.

Debs, who was sentenced to 10 years in prison under the Espionage Act just for telling a rally of peaceful workers to realize they were “fit for something better than slavery and cannon fodder.” Or Sidney Street, jailed in 1969 for burning an American flag on a Harlem street corner to protest the shooting of civil rights figure James Meredith.

Which US Supreme Court decision was based on the Necessary and Proper Clause?

by Neil S. Siegel – David W. Ichel Professor of Law and Professor of Political Science at Duke Law School; Director of Duke’s D.C. Summer Institute on Law and Policy The Constitution enumerates a great many powers of Congress, ranging from seemingly major powers, such as the powers to regulate interstate and foreign commerce, to seemingly more minor powers, such as the power to establish post offices and post roads.

But there are many powers that most people, today or in 1788 (when the Constitution was ratified), would expect Congress to exercise that are not part of those enumerations. The Constitution assumes that there will be federal departments, offices, and officers, but no clause expressly gives Congress power to create them.

Congress is given specific power to punish counterfeiting and piracy, but there is no explicit general authorization to provide criminal—or civil – penalties for violating federal law. Several constitutional provisions give Congress substantial authority over the nation’s finances, but no clause discusses a national bank or federal corporations.

1. These unspecified but undoubted congressional powers, and many others, emerge from the Clause at the end of Article I, Section 8, which gives Congress power “o make all Laws which shall be necessary and proper for carrying into Execution” the other federal powers granted by the Constitution.
2. This residual clause—called at various times the “Elastic Clause,” the “Sweeping Clause,” and (from the twentieth century onward) the “Necessary and Proper Clause”—is the constitutional source of the vast majority of federal laws.

Virtually all of the laws establishing the machinery of government, as well as substantive laws ranging from antidiscrimination laws to labor laws, are enacted under the authority of the Necessary and Proper Clause. This Clause just might be the single most important provision in the Constitution.

At first glance (and keep in mind that first glances are not always last glances), close analysis of the words of the Necessary and Proper Clause suggests three criteria for a federal law to be within its scope: Laws enacted pursuant to the Clause must be (1) necessary, (2) proper, and (3) for carrying into execution some other federal power.

Historically, most of the controversy surrounding the meaning of the Necessary and Proper Clause has centered on the word “necessary.” In the 1790s during the Washington administration, and again two decades later in the Supreme Court, attempts to create a national bank in order to aid the nation’s finances generated three competing understandings of what kind of connection with another federal power makes a law “necessary” for implementing that power.

Those understandings ranged from a strictly essential connection “without which the grant of power would be nugatory” (Thomas Jefferson), to an intermediate requirement of “some obvious and precise affinity” between the implemented power and the implementing law (James Madison), to a very loose requirement allowing any law that “might be conceived to be conducive” to executing the implemented power (Alexander Hamilton).

In McCulloch v. Maryland (1819), the Supreme Court’s most famous case interpreting the Necessary and Proper Clause, the Court sided with Hamilton, giving Congress very broad authority to determine what is “necessary” for implementing federal powers. Subsequent cases have been at least as generous to Congress, finding necessity whenever one can imagine a “rational basis” for connecting implementing means to legislative ends.

Indeed, no congressional law has ever been held unconstitutional by the Supreme Court on the stated ground that it was not “necessary” to implement a federal power. Until quite recently, the word “proper” played no serious role in constitutional debates about the meaning of the clause. Indeed, a number of Founding-era figures, including such luminaries as Patrick Henry, James Monroe, and Daniel Webster, thought that the word “proper” was surplusage that added nothing to the word “necessary.” In 1997, however, following some academic commentary that sought to give substance to the requirement of propriety, the Supreme Court held in Printz v.

United States that a federal law compelling state executive officials to implement federal gun registration requirements was not “proper” because it did not respect the federal/state boundaries that were part of the Constitution’s background or structure.

1. Some later cases extended that holding to other matters involving federal/state relations.
2. In NFIB v.
3. Sebelius (2012), a constitutional challenge to “Obamacare,” the federal health care law, the Court sharply divided over whether a law could ever fail to be “proper” if it did not involve direct federal regulation of state governments or state officials.

The subject is likely to be a point of contention in the future. There was also little action until recently regarding what it means for a law to be “for carrying into Execution” another federal power. For a long time, the standard assumption has been that laws can carry federal powers into execution by making other laws grounded in those powers more effective.

• For example, the Court assumed in Missouri v.
• Holland (1920) that Congress could use the Necessary and Proper Clause to “carry into Execution” the treaty power by implementing and extending the substantive terms of a treaty.
• In recent years, however, three Justices have followed the lead of certain legal scholars by arguing that carrying the treaty power into execution means providing funds for ambassadors, pens and ink, and travel to foreign nations—in other words, it means making it possible to negotiate, draft, and ratify a treaty rather than to make the treaty more effective once it is negotiated, drafted, and ratified.

Again, this subject is likely to be a point of contention in the future. All of the foregoing, however, assumes that the right way to interpret the Necessary and Proper Clause is to pick apart its individual words and give each key term an independent meaning.

1. That is not the only way to interpret the clause.
2. Instead, one might look at the clause as a single, undifferentiated provision and try to discern the range of laws that the Clause, viewed holistically and purposively, tries to authorize.
3. One such vision (reflected in one of our separate statements) sees the Clause as a codification of principles of agency law that allow agents to exercise certain defined powers that are “incidental” to the main objects of the documents that empower the agents.

Another such vision (reflected in the other of our separate statements) views the Clause as carrying forward ideas from a resolution adopted by the Constitutional Convention that would allow Congress to legislate “in all cases for the general interests of the Union,

And in those to which the states are separately incompetent.” If the Necessary and Proper Clause has a relatively broad scope, as the second vision and two centuries of case law has largely maintained, it provides constitutional authorization for much of the existing federal machinery. If it has a narrower scope, as the first vision and a small but vocal group of Justices and scholars maintains, a great many federal laws that have been taken for granted for a long time might be called into question.

The correct interpretation of the Necessary and Proper Clause might – just might – be the single most important question of American constitutional law.

What is in the 2nd Amendment?

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

What is in the Fifth Amendment?

Overview – The Fifth Amendment of the U.S. Constitution “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation,” The clauses incorporated within the Fifth Amendment outline basic constitutional limits on police procedure.

1. The right to indictment by the grand jury before any criminal charges for felonious crimes
2. A prohibition on double jeopardy
3. A right against forced self-incrimination
4. A guarantee that all criminal defendants have a fair trial, and
5. A guarantee that the government cannot seize private property without making a due compensation at the market value of the property.

While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has partially incorporated the Fifth Amendment to the states through the Due Process Clause of the Fourteenth Amendment, The right to indictment by the grand jury has not been incorporated, while the right against double jeopardy, the right against self-incrimination, and the protection against arbitrary taking of private property without due compensation have all been incorporated into the states,

What has the Supreme Court ruled with respect to prayer in public schools?

Court has declared that prayer in public schools violated establishment clause – As early as, the Supreme Court declared that public prayer in public schools violated the establishment clause. In this instance, a prayer approved by the New York state board of regents was read over the intercom during the school day when students were required to be in attendance.

1. Other public events are slightly different, because attendance is not viewed as mandatory in most cases.
2. In many cases, however, these public events are, essentially, required events, and the Court has considered them to be such.
3. In, the Court held 5-4 that claiming a teenage student in contemporary society has a real choice not to attend his or her graduation was not at all realistic.

Similarly, in, where a prayer prior to the start of football games was being challenged, the Court acknowledged that while student attendance at football games was mostly voluntary, the football players and cheerleaders did not have the option of leaving the premises during the reading of a prayer.

Which of the following is true of the Free Exercise Clause quizlet?

Which of the following statements is true of the free exercise clause of the First Amendment? It states that the right to practice one’s beliefs is absolute and cannot be restricted.

What is true of a secular activity?

What is true of a secular activity? It is separate from all religious traditions.

What are the words of the free exercise clause?

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

What does the Free Exercise Clause protect in the United States which is unusual compared to other democratic nations?

– A lithograph, done seven years after the killing, depicts the 1844 murder of Joseph Smith, leader of the Church of Latter-day Saints. (Wikimedia Commons) The First Amendment to the U.S. Constitution begins with what are known as the religion clauses: “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof,

1. Note that initially the First Amendment only limited the actions of Congress, our national legislature, but not the governments of any of the states.
2. That came later.
3. The phrases establishment of religion and free exercise of religion mean different things.
4. Most British colonies in America before 1776 had “established churches,” churches that received direct financial support from taxpayer money.

Several states in the early American republic also had established churches. The establishment clause protects against the federal government’s funding or sponsoring particular religious views. The free exercise clause serves another purpose: It prevents the government from interfering with people’s religious beliefs and forms of worship.

It was many years before the Supreme Court heard its first case involving the free exercise clause. The First Free Exercise Case In the 1820s, a man named Joseph Smith had spiritual visions, and from his visions came the new religion of the Church of Latter-day Saints, whose adherents are sometimes refered to as Mormons.

Throughout the 19th century, the Church faith spread as the charismatic Smith gathered followers. Among the Church’s more controversial practices was polygamy, or men having multiple wives. Joseph Smith based his belief in polygamy on revelations from God, supported by biblical examples of the practice, though the practice was not widespread among his followers.

1. The Church faced resistance and even persecution when they settled in many traditionally Christian communities.
2. Smith was killed by an angry mob in 1844 and was succeded by Brigham Young.
3. Members of the Church ultimately settled in the territory of Utah.
4. There, they openly practiced polygamy.
5. Determined to clamp down on their polygamy in U.S.

territories, Congress passed the Anti-Bigamy Act of 1862, which President Lincoln signed into law. The law made polygamy a federal crime punishable by prison and a fine: “That every person having a husband or wife living, who shall marry any other person, whether married or single, in a Territory of the United States,,

shall, be adjudged guilty of bigamy,,” Lincoln, however, promised not to enforce the law if Young agreed not to join the Confederacy in the Civil War. When the federal government began to more actively enforce the law in the 1870s, Young and other Church elders decided to challenge the law. Young had his secretary, George Reynolds, arrested for bigamy.

According to plan, Reynolds claimed his arrest violated his fundamental right to free exercise of religion. The U.S. Supreme Court agreed to hear his appeal. When in 1879, the court issued its opinion in Reynolds v.U.S., Reynolds and the Church lost. In a unanimous opinion, Chief Justice Morrison Waite wrote, “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” Unless the government can regulate our actions, every citizen would become “a law unto himself.” In other words, the government may limit your actions, but not your beliefs.

1. In 1890, the Church formally banned the practice of polygamy, though some splinter groups, also claiming Joseph Smith as their founder, continued the practice illegally even into the 21st century.
2. The practice of polygamy in Utah had made many in Congress oppose its becoming a state.
3. After the ban, Congress admitted Utah to the Union in 1896.) Incorporation of Rights The First Amendment initially only applied to the federal government.

The Church could challenge the Anti-Bigamy Act because it was an act of Congress, the only governmental body named in the First Amendment. But following the Civil War, the 14th Amendment was added to the Constitution. Among its provisions was the due process clause: “nor shall any State deprive any person of life, liberty, or property, without due process of law,

• Beginning in the 1920s, the Supreme Court began to interpret the due process clause as incorporating the fundamental rights of the Constitution and thus protecting individuals against the actions of state and local governments.
• On a case-by-case basis, the court has decided which rights are incorporated into the 14th Amendment’s due process clause.

Once a fundamental right has been incorporated, it protects persons from unconstitutional laws and actions of their state and local governments and not just the federal government. The free exercise clause was incorporated in the 1940 case of Cantwell v.

• Connecticut,
• Newton Cantwell belonged to the Jehovah’s Witnesses, a Christian sect that places great importance on its members’ proselytizing, or working to convert others to its beliefs.
• One day, Cantwell and his two sons went door-to-door in a mostly Catholic neighborhood in Connecticut, taking with them religious books and pamphlets and even a portable phonograph (record player) to play recordings for people at their front doors.

The recordings offended many people in the neighborhood. Some listeners later testified that they had to restrain themselves from punching Cantwell. A local ordinance forbade anyone from soliciting (asking for donations) for “any alleged religious, charitable or philanthropic cause” without prior approval from the local “public welfare council,” a governmental body.

The punishment for violating the ordinance included a fine and up to 30 days in jail. Cantwell was arrested for violating the ordinance and for disturbing the peace. Cantwell defended his actions on the basis of his free exercise of religion under the First and 14th amendments. When his case was appealed to the Supreme Court, the court held unanimously in Cantwell’s favor.

In his opinion, Justice Owen Roberts wrote: In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor, But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.

1. Compelling Interest More than 20 years later, in Sherbert v.
2. Verner (1963), the Supreme Court made another important ruling on the free exercise clause.
3. The court was presented with this issue: If an employee cannot perform the required functions of a job for religious reasons, and is then fired, may a state deny that employee unemployment benefits? The case involved Seventh Day Adventism, a Christian denomination.

All Christians observe a holy day each week called the Sabbath, and most Christians in the United States observe the Sabbath on Sunday. The Seventh Day Adventists, however, observe it on Saturday, according to their biblical interpretation. Adell Sherbert, a young woman, had converted to Seventh Day Adventism in South Carolina.

• She worked a five-day week at a textile mill, but when the mill’s schedule changed to a six-day week, including Saturdays, she refused to work on her Sabbath day.
• She was fired, and she could not find other work because of her Sabbath restriction.
• When she applied for state unemployment benefits, the state denied her claim, stating that she was refusing to accept available work.

Sherbert appealed the state’s decision. When her case ultimately reached the U.S. Supreme Court, the court decided in her favor. Writing for the majority, Justice William Brennan stated a rule for deciding when the government could limit a person’s free exercise of religion.

The decision to deny Sherbert her benefits must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant’s religion may be justified by a “compelling state interest.

,” In other words, the court, recognizing the free exercise of religion as a fundamental right, decided that if the government wants to place a burden on a person’s sincere religious beliefs, then the government must have a very strong reason for placing such a burden.

The only reason the state put forward in Sherbert’s case was the possibility of “fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work.” Brennan noted that no evidence of fraudulent claims was presented in court and doubted even if evidence existed, that this would amount to a compelling state interest.

“For even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.” Drugs, Religion, and the Law For nearly 30 years, the courts used Sherbert ‘s “compelling interest” test to decide free exercise cases.

1. In Employment Division v.
2. Smith (1990), however, the Supreme Court moved decidedly in another direction, by reinvigorating the original standard set in Reynolds v.U.S,
3. The case of Smith involved adherents of a small religion called the Native American Church (NAC).
4. The NAC synthesize Christianity with traditional North American indigenous, or Native American, religion.

Beliefs and practices in the NAC vary from region to region. Part of the NAC’s ritual practices, however, involves the controversial use of part of a small cactus called peyote (pronounced pay-OH-tee). When ingested into the body, peyote can cause a strong hallucinogenic (mind-altering) effect.

1. Archaeologists have found peyote “buttons” (bite-size pieces) in caves in southern Texas that date back to 5,000 B.C., indicating a long tradition of use before the arrival of Europeans in North and South America.
2. The federal government classifies peyote as a Schedule I controlled substance, or illegal narcotic.

Federal law, however, makes an exemption for peyote’s use by the NAC: “The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church.” All states also outlaw the use of peyote, but many of them also have exemptions for its use by the NAC.

In the late 1980s, Alfred Smith and Galen Black worked in a private Oregon drug-rehabilitation clinic as counselors. They also belonged to the Native American Church. When their employer learned they ingested peyote as part of their religious practice, they were fired for “misconduct” even though they did it when they were not working.

Use of peyote is a crime in Oregon, and the state does not have an exemption for the NAC. Smith and Black, however, were never charged with a crime. They made a claim for state unemployment benefits, but the Oregon Department of Human Resources denied the benefits because of the misconduct claim.

• The Oregon Supreme Court held that the denial of benefits did violate the free exercise clause, citing Sherbert v.
• Verner and the compelling interest test.
• When the state of Oregon appealed the case to the U.S.
• Supreme Court, it argued that the use of peyote is a criminal act, and therefore the denial of benefits was permitted even though Smith and Black only used peyote for religious purposes.

The state argued that their conduct set a bad example for the drug addicts who Smith and Black counseled. Smith and Black argued that criminal activity not directly “job-related” is not a reason to deny unemployment benefits under Oregon law. They cited an example of a university professor who was not denied benefits even though he had been convicted for conspiracy to set off bombs at federal buildings.

• The U.S. Supreme Court, however, held for the state of Oregon in a 6–3 split.
• In his majority opinion, Justice Antonin Scalia wrote that a “neutral, generally applicable law” does not violate the free exercise clause simply because it burdens a person’s religious beliefs.
• Scalia continued, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Citing the Reynolds case, Scalia warned that a decision favoring Smith and Black would allow “every citizen to become a law unto himself.” Writing in dissent, Justice Harry Blackmun argued that the compelling interest test “was settled and inviolate principle,” and that the Oregon government had simply not established a compelling interest “in enforcing its drug laws against religious users of peyote.” Blackmun said that the majority was wrong to say the court had “never held that an individual’s religious beliefs” excuse him or her from the law.

Blackmun pointed to the Cantwell decision as an example. The RFRA The decision in Smith prompted outrage from across political and religious dividing lines. Many liberals and conservatives thought the decision harmed religious liberty. Smith brought the liberal American Civil Liberties Union and the conservative Traditional Values Coalition together to denounce the Supreme Court’s decision.

A variety of religious groups also opposed the decision. The Religious Action Center of Reform Judaism, the Baptist Joint Committee on Public Affairs, the National Association of Evangelicals, and others all agreed that the decision would have far-reaching effects, damaging more than just the Native American Church.

Members of Congress responded. Representative Chuck Schumer (D-NY) introduced a bill called the Religious Freedom Restoration Act (RFRA) in 1993, which reinstated the compelling interest test of the Sherbert case. It passed unanimously in the House of Representatives and sailed through the Senate in a 97–3 vote.

1. President Bill Clinton then signed RFRA into law.
2. The text of the law referred only to “government,” meaning that it applied at both the federal and state levels.
3. In 1997, however, the Supreme Court declared unconstitutional the application of RFRA to the states in the case of City of Boerne v. Flores,

In a 6–3 decision, the court held that Congress exceeded its authority under the 14th Amendment when it passed RFRA. The court decided that congressional legislation could limit the federal government’s actions, but that Congress could not tell state governments to give citizens more First Amendment protection than the Smith decision required.

In the text of RFRA below, note how it uses the language of the Supreme Court’s Sherbert decision to describe the only circumstances when the government may burden any person’s free exercise of religion.42 U.S. Code Sec.2000bb — 1 – Free exercise of religion protected (a) In general Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) Exception Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. ( c) Judicial relief A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution. What is the US First Amendment? The Bill of Rights – One of the principal points of contention between the Federalists and Anti-Federalists was the lack of an enumeration of basic civil rights in the Constitution. Many Federalists argued, as in Federalist No.84, that the people surrendered no rights in adopting the Constitution. In several States, however, the ratification debate in some States hinged on the adoption of a bill of rights. The solution was known as the Massachusetts Compromise, in which four States ratified the Constitution but at the same time sent recommendations for amendments to the Congress. James Madison introduced 12 amendments to the First Congress in 1789. Ten of these would go on to become what we now consider to be the Bill of Rights. One was never passed, while another dealing with Congressional salaries was not ratified until 1992, when it became the 27th Amendment. Based on the Virginia Declaration of Rights, the English Bill of Rights, the writings of the Enlightenment, and the rights defined in the Magna Carta, the Bill of Rights contains rights that many today consider to be fundamental to America. The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances. The Second Amendment gives citizens the right to bear arms. The Third Amendment prohibits the government from quartering troops in private homes, a major grievance during the American Revolution. The Fourth Amendment protects citizens from unreasonable search and seizure. The government may not conduct any searches without a warrant, and such warrants must be issued by a judge and based on probable cause. The Fifth Amendment provides that citizens not be subject to criminal prosecution and punishment without due process. Citizens may not be tried on the same set of facts twice and are protected from self-incrimination (the right to remain silent). The amendment also establishes the power of eminent domain, ensuring that private property is not seized for public use without just compensation. The Sixth Amendment assures the right to a speedy trial by a jury of one’s peers, to be informed of the crimes with which one is charged, and to confront the witnesses brought forward by the government. The amendment also provides the accused the right to compel testimony from witnesses, as well as the right to legal representation. The Seventh Amendment provides that civil cases preserve the right to trial by jury. The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments. The Ninth Amendment states that the list of rights enumerated in the Constitution is not exhaustive, and that the people retain all rights not enumerated. The Tenth Amendment assigns all powers not delegated to the United States, or prohibited to the States, to either the States or to the people. Learn more about the Constitution Which of the following is the strictest interpretation of the Establishment Clause? Because of their belief in a separation of church and state, the framers of the Constitution favored a neutral posture toward religion, The members of the Constitutional Convention, the group charged with authoring the Constitution, believed that the government should have no power to influence its citizens toward or away from a religion. The principle of separating church from state was integral to the framers’ understanding of religious freedom. They believed that any governmental intervention in the religious affairs of citizens would necessarily infringe on their religious freedom. Thus, the Constitution maintains a general silence on the subject save for two instances. The first instance, in Article VI, is a proscription of any religious tests as a requisite qualification for public service. The second instance is in the First Amendment of the Bill of Rights. The First Amendment contains two clauses that prescribe the government’s relationship with religion. In the first instance, the Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” In the strictest reading, the Establishment Clause proscribes any adoption of an official religion by the federal government. More broadly, the phrase functions as a way of assuring that the federal government will not adopt any stance in favor of or against any religion. However, the Supreme Court has tolerated a certain degree of government involvement in religion. For instance, the Court has allowed government funding to go to private religious schools and prayers to begin certain legislative meetings, as in Town of Greece v. Galloway, In that case, the Court ruled that a town hall meeting that began with prayers, predominantly given by members of different denominations of Christianity, was not a violation of the Establishment Clause, in part because legislative prayers are for the legislators and not for the public. The second clause of the First Amendment that deals with religion immediately follows the Establishment Clause: “Congress shall make no law respecting an establishment of religion, or prohibiting the exercise thereof,” Where the first clause prohibits Congress from adopting any particular religion, the second clause prohibits Congress from interfering with an individual’s exercise of religion. This second clause is called the Free Exercise Clause, The Free Exercise Clause protects an individual’s right not only to believe what he or she would like but also to practice it. The clause protects individuals from laws that would expressly inhibit them from engaging in religious practices. The Supreme Court has interpreted limits to the Free Exercise Clause and allowed the government to legislate against certain religious practices, such as bigamy and peyote use, In the last 30 years especially, the Court has generally adopted a more restrictive view of the protections of the Free Exercise Clause. Some commentators have suggested that the Free Exercise Clause is contradictory with the Establishment Clause because by protecting certain religious practices that the government would otherwise like to prohibit, the Constitution takes stance in favor of and not neutral to religion. The Bill of Rights only expressly limits the federal government, so until the adoption of the Fourteenth Amendment, states were not constitutionally required to adhere to the protections of the Establishment Clause and the Free Exercise Clause. Many of the framers of the Constitution were staunch supporters of a federalist system in which each state would have the power to decide for itself how to approach religion. However, in a number of decisions, the Supreme Court held that because of the Fourteenth Amendment, the protections of religious freedom in the First Amendment are enforceable against state and local governments. For instance, in Cantwell v. Connecticut, Jehovah’s Witnesses were arrested for proselyting in Connecticut. The Court ruled that a local ordinance that required a license for religious solicitation violated the Free Exercise Clause. The “Hobby Lobby” case is a more recent example of the Court’s foray into the interaction between religion and the Constitution. In Burwell v. Hobby Lobby, the Court struck down a law that required for-profit corporations to provide certain contraceptives as part of their healthcare packages for their employees. The owners and founders of Hobby Lobby, who were opposed to abortion on religious grounds, refused to offer health care packages for their employees that would provide them with contraceptives they deemed abortive. The Court, however, declined to find for Hobby Lobby on the basis of the Free Exercise Clause, but instead found for them on statutory grounds. Which statement best reflects the meaning of the Establishment Clause? The following statement best reflects the meaning of the establishment clause: Prohibits the government from creating an official church. What is meant by the wall of separation? Court used ‘wall of separation’ metaphor to announce strict separation of church, state. Which test applies to the free exercise clause quizlet? The case established the Sherbert Test, requiring demonstration of such a compelling interest and narrow tailoring in all Free Exercise cases in which a religious person was substantially burdened by a law. What is the lemon test in Kennedy v Bremerton? The eponymous Lemon test says that for a government action to be constitutional, (1) it ‘must have a secular legislative purpose’; (2) ‘its principal or primary effect must be one that neither advances nor inhibits religion’; and (3) it ‘must not foster an excessive government entanglement with religion.’ The Court has In which case did the US Supreme Court decide not to protect the free exercise of religion by some people? Reynolds v. United States (1879) This Supreme Court Case focuses on a case which tested the limits of religious liberty: Reynolds v. United States (1879). The Court ruled unanimously that a law banning polygamy was constitutional, and did not infringe upon individuals’ First Amendment right to free exercise of religion. Which United States Supreme Court decision was based on the free exercise clause quizlet? In Oregon v Smith the Supreme Court based its decision on the free exercise clause of the 1st amendment. One way in which other political institutions may limit the impact of supreme court decisions is through the amendment process.