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Freedom of Religion

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Bill Kinziger

on 4 June 2013

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Transcript of Freedom of Religion

Freedom of Religion Whatever that means... 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. Two Distinct Clauses Establishment Clause Free Exercise Clause What was the original application of the Bill of Rights (whom did it limit?)
What is the implication of this in 1790?
How can we test if government is establishing a relgion? Are there limits to free exercise?
Can we all believe what we want to believe?
What is the impact on what government can do? "...Respecting an establishment..." "...or prohibiting the free exercise thereof..." Establishment Clause Test 1. The government action must have a secular purpose
2. The government action must not have the primary effect of either advancing or inhibiting religion
3. The government's action must not result in an "excessive government entanglement" with religion Mandatory flag salute in schools:
A violation or not? Mandatory pledges were put into law during the second world war as an attempt to increase patriotism. Walter Gobitas (misspelled in the court's decision), a Jehovah's Witness, instructed his children not to salute the flag. Is compulsion a violation??? Minersville School Distric Apparently not. Minersville S.D. v. Gobitis (1940) The flag salute helped form a "cohesive sentiment" which is the basis of a free society
Ultimately led to increased persecution of Jehovah's Witnesses But Wait....I thought you couldn't legally be forced to stand for the pledge? Well....there's hope West Virginia State BOard of Ed. v. Barnett
(1943) Free speech clause of 1st Amendment protects students from being forced to salute the flag
Court did not address religious beliefs
Jackson wrote, "....a person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn."
Also, "Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard." Publicly funding busing students to parochial schools:
A violation or not? Emerson v. B.O.E. (1947) A New Jersey tax payer filed suit, claiming that a program which reimubursed the transportation costs for both public and parochial students was unconstitutional
Statute only provided for "public welfare legislation" benefitting all citizens equally
Not busing would be religious discrimination
Black wrote, "The 'establishment of religion' clause of the First Amendment means at least this: neither a state nor the Federal government can set up a church...in the words of Jefferson the clause against establishment of religion by laws was intended to erect a 'wall of separation between church and state'" Non-compulsory prayer in school:
A Violation or Not? Non-compulsory recitation of the bible at the beginning of the school day:
A Violation or Not? Student-led, student-initiated prayer at football games:
A Violation or Not? If a publicly-funded scholarship program excludes a student pursuing a degree in Theology is it:
A Violation or Not? Prayer in question was "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen." Engle v. Vitale (1962) The practice was wholly inconsistant with the Establishment Clause
A prayer "composed by government officials as part of a governmental program to further religious beliefs...breaches the constitutional wall of separation between Church and State" NOT VIOLATION VIOLATION Abington School District v. Schempp (1963) Edward Schempp filed suit against the school district because of mandatory Bible recitations in public schools, which was required by law in PA and four other states
25 other states had provisions for optional Bible reading/recitation in school, but did not require it
Civil authority must remain separate and no support or religion can be given from public sources
Court granted certiorari to settle protests resulting from Engle
Government must remain neutral in matters of religion: "while protecting all, prefer none and disparage none." Santa Fe ISD v. Doe (2000) Texas school district allowed an elected student Chaplain to read Christian prayers at graduation ceremonies and over the PA system at home football games
A Mormon and a Catholic filed suit (Baptist prayers)
During litigation, school held an election. Prayer won.
Prayers were "nonsectarian" and "non-proseltyizing"
SCOTUS ruled it was a violation NOT Locke v. Davey (2004) Looked at the "room...between the two Religion Clauses."
There was nothing "inherently constitutionally suspect" in the denial of funding for vocational religious instruction.
Washington has a "substantial state interest" in not funding "devotional degrees."
Washington Constitution states, "No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction." Those are just some of the more important cases dealing with the Establishment Clause. But WAIT. There's more!
Remember? There are two distinct clauses dealing with the freedom of religion. Which brings us to..... Free Exercise drum-roll please.... VIOLATION The founding fathers sought to prevent the government from infringing on a citizen's right to practice their religion But the question remains: Is religious duty a suitable defense to criminal indictment? Reynolds v. U.S. (1878) George Reynolds (LDS) charged with bigamy argued it was his religious duty to marry several wives
"to permit this would be to make professed doctrines of religious belief superior to the law of the land and in effect permit every citizen to become a law unto himself."
Quoted Jefferson, "...the legitimate powers of the government reach actions only, and not opinions." Does the First Amendment protect a group of people from being forced to send their children to public high schools if such attendance is contrary to their religious beliefs? Wisconsin v. Yoder (1972) Because Amish have a long history of beliefs, they are deemed a legitimate group
No matter how strong a state's interest in universal compulsory education may be, it is not absolute
"Since WI v. Yoder, all states must grant the Old Order Amish the right to establish their own school or to withdraw from public institutions after eighth grade." ~A History of the Amish Sherbert Is the denial of unemployement benefits to a Seventh Day Adventist who refused to work on Saturdays a violation of Free Exercise? Scotus ruled that it was a violation
Dismissed the state's claim that it had an interest in weeding out individuals who used bogus religious beliefs as a way of unscrupulously claiming compensation

Prior to sherbert (aka Sherbert v. verner, 1963), government had only to prove a rational basis-not a very high standard
The "Sherbert test" required a state government to demonstrate a "compelling interest" such as public health and safety, to justify restricting or infringing on a citizen's religious free-exercise right Which brings us back to the question... Does the state, firing a person for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual, violate that person's right to Free Exercise? Does a city ordinance which forbids "unnecessary killing of an animal in a public or private ritual or ceremony not for the primary purpose of food consumption" violate the Free Exercise clause? Employment Division v. Smith (1990)

although states have the power to accommodate otherwise illegal acts done in pursuit of religious beliefs, they are not required to
Two Native Americans were fired from their jobs as counselors for a private drug rehab organization
filed for unemployment compensation in Oregon
claim was denied because the reason for dismissal was deemed work-related misconduct
Oregon's ban on the possession of peyote is not a law specifically aimed at a physical act engaged in for a religious reason. Rather, it is a law that applies to everyone who might possess peyote, for whatever reason—a "neutral law of general applicability," in the Court's phrasing Church of lukumi babalu aye v. city of hialeah (1993) Santeria church was planning on locating in Hialeah
SCOTUS ruled the ordinances were neither neutral nor generally applicable: exclusively applied to the church
Because it was specific, it was not subject to a "rational basis test" but must be justified with a "compelling governmental interest." City of Boerne v. Flores (1997) After Smith, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA)
Purpose of RFRA was to protect free exercise beyond the scope of the Court in Smith
RFRA passed under 14th Amendment, Section 5
SCOTUS ruled that Congress had overstepped their Constitutional bounds as it applies to the states only Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal (2006) Federal government seized a sacramental tea from a New Mexico branch of the Brazilian church (UDV)
SCOTUS ruled in favor of UDV state that the government had not met its burden under RFRA that barring the substance served a compelling governmental interest
Court disagreed with government that CSA does not allow for exceptions since Native Americans are are allowed to smoke peyote
This ruling does not impact the state due to Flores Hey! Where does our right to practice religion end, and the government's right to govern, begin? If all this information leaves you feeling, well, a bit... ....lost.... ...you aren't alone. It's confusing!
But it's only because the government wants to be sure to insure your...
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