5. Establishment Clause “ Congress shall make no law respecting the establishment of religion . . .” Meanings: No State Religion, or Wall of Separation, or Neutrality and Non-promotion NOT: absence of religious coercion
6. Free Exercise Clause “ . . . nor prohibiting the free exercise thereof.” Meanings Beliefs cannot be prohibited, AND Practices cannot be prohibited on religious grounds, BUT Laws can prohibit a practice generally even if some religions do it.
7. Free Exercise Clause The Free Exercise Clause Some religious practices may conflict with other rights, and then be denied or punished Employment Division v. Smith (1988) - work related “misconduct” state gov’t doesn’t have to justify the burdens it might put on religious exercise which are imposed by laws nuetral towards religion
8. Free Exercise Clause The Free Exercise Clause Some religious practices may conflict with other rights, and then be denied or punished Religious Freedom Restoration Act (1993)aka the American Indian Religious Freedom Act SEC. 2. CONGRESSIONAL FINDINGS AND DECLARATION OF PURPOSES. (a) FINDINGS.--The Congress finds (1) the framers of the American Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution; (2) laws "neutral" toward religion may substantially burden religious exercise as surely as laws intended to interfere with religious exercise; (3) governments should not substantially burden religious exercise without compelling justification;
9. Exercise vs. Establishment Free exercise by government officials can establish religion. Wearing religious clothing while carrying out one’s official duties can create an establishment of religion, even if one’s religion requires the clothing. Most often, preventing establishment takes precedence over allowing free exercise.
10. School Prayer Engel v. Vitale (1962) Official school prayer was recited at the beginning of each day, led by school officials. Abington School District v. Schempp (1963) State law required bible recitations at the beginning of each school day. Organized religious activities in public schools constitute establishments of religion. Engel: School officials cannot promote religion, even non-coercively. Abington: With regard to religion, “The government is neutral, and, while protecting all, it prefers none, and it disparages none.”
11. School Prayer School sponsorship is the decisive factor. School-sponsored actions are not free exercises of religion. Student-led prayer is unconstitutional if it is school-sanctioned. Santa Fe ISD v. Doe (2000) Violation of the establishment clause.
12. Schools and Prayer A student prays silently to herself before an exam. The teacher punishes her. Have her rights been violated? The religious act is undertaken by a private citizen, not a government official. There is no establishment of religion; neither Engel nor Abington apply. The student’s free exercise rights have been violated.
13. Lemon Test Federal funds to parochial schools - Elementary and Secondary Schools Act Lemon v Kurtzman (1971) 1. have a secular legislative purpose 2. Have a primary effect that neither advances nor inhibits religion 3. not foster an excessive gov’t “entanglement” with religion
14. Schools and Prayer Agostini v Felton 1997 public schools could send teachers to remediate in parochial schools Zelman v Simmons-Harris 2002 families in Cleveland, OH could use vouchers to send students to religious schools
15. Schools and Prayer Kiryas Joel v Grumet 1994 NY can’t create public school district favoring Hasidic Jews
16. Schools and Prayer 1984 Equal Access Act no school receiving fed. funds can keep students from using facilities for religious worship if school open for other student meetings
17. Schools and Prayer UVA must subsidize religious publications just as much as other school publications are subsidized but Washington state allowed to withhold general scholarship monies to students pursuing devotional theology degree
18.
Notes de l'éditeur
John Barron co-owned a profitable wharf in the Baltimore harbor. He sued the mayor of Baltimore for damages, claiming that when the city had diverted the flow of streams while engaging in street construction, it had created mounds of sand and earth near his wharf making the water too shallow for most vessels. The trial court awarded Barron damages of $4,500, but the appellate court reversed the ruling. The Supreme Court decided that the Bill of Rights, specifically the Fifth Ame ndment's guarante e that government takings of private property for public use require just compensation, are restrictions on the federal government alone. Gitlow extended certain rights of b of r- esp free speech/press to govt of individual states.Used due process of 14th.
2nd 3rd 7th-trail by jury in common cases 5th- grand jury requir 8th- prohibit excessive fines
initially found guilty of illegal drug use so no unemploy benefits allowed Oregon Ct of Appeals reversed it saying can’t deny benefits based religous use of peyote cause that violated their right to exercise religion Oregon Supreme ct agreed- not cause illegal drug but b/c state claiming this action of Smith and Black violated financial integrity of worker’s compensation fund- was outweighed by burden on their religious freedoms state appealed to SC cause denying unemploy benefits was ok cause peyote was illegal and a crime SC "It is a permissible reading of the [free exercise clause]...to say that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended. "The Free Exercise Clause permits the State to prohibit sacramental peyote use and thus to deny unemployment benefits to persons discharged for such use." Neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment .
football game a school district in Texas between H ousto n and Galvesto n , allo wed students to offer Christian prayers over the public ad dress system at h ome football games. These p rayers were given by an elected student chaplain . Two sets of current or former students and their respective moth ers—one Mormon , the other Catholic —objected to this practice and filed a suit on the basis of a violation of the E stablish ment Clause.
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