INTRODUCTION: VALUES UNDERLYING THE CLAUSES I. Overlap between the clauses: a. Mean the same thing b.

Meant to minimize government power over religion: i. Free exercise: government cant hinder religion ii. Establishment: government cant benefit religion c. ension between the two: i. Free exercise: re!uires protection of religion " benefits ii. Establishment: prohibits benefiting religion d. Free exercise protects against government coercion # establishment protects democratic government from religious control II. Free Exercise Clause Values: a. $rguments against $ccommodation: i. Entanglement ii. E!ualit% " cannot give preference to religion over non&religion iii. $narch% iv. 'eligion: what is a religion( b. $rguments for accommodation: i. )on&preferentialism ii. *ubstantive libert% " right to religion unless it falls within an exception c. +uestion raised: do we protect the similarities or the differences( i. ,o we focus on freedom or e!ualit%( d. *tansbur% v. Mar-s ./0123 " 4ew who did not want to testif% on the sabbath i. 5laintiffs arguments: /. )atural right to worship according to own conscious 6. 7imits on state action in the 5$ constitution .now through 8I93 2. ,enominational neutralit% is re!uired ii. *tates arguments: /. Entangling & what counts as observance( 6. E!ualit% " would be to give preference to religion over secular interests "now a secular thing to have this six da% wee2. $narch% " how far would these exemptions go .ex. honor -illings3 :. ,efinition " what counts as a religious observance( III. Establishment Clause Values: a. Fundamental tension: i. ;ow far can government go to protect <free exercise=( b. Three theories of the establishment clause: i. Strict Separation /. $dvocated b% >efferson 6. MP: to the greatest extent possible government should be secular and religion should be onl% in the private realm 2. 5ro: -eeps people from feeling li-e <outsiders= # eliminates divisiveness :. ?on: cant have absolute wall &@ end up with line drawing exercise ii. Neutrality: /. MP: prohibit classifications or actions on the basis of religion a. *tanding in communit% cannot depend on religious views 6. $dvocated in O?onnors endorsement test: cannot s%mbolicall% endorse a particular religion or religion or secularism a. 5roblem is defining who reasonable observer is who decides whether government is viewed as endorsing religion i. ?reates ambiguit% problem &@ court has to ma-e sub4ective decision /

c.

b. 5roblem: too restrictive: i. Either the court has to twist the test to allow certain precedent ii. Or invalidate long standing historical practices iii. ccommo!ation " E#uality /. MP: ver% low standard " onl% violate establishment clause if establish churchA coerce religious participationA or favor one religion over others a. Focus is on coercion " ex. 7ee v. Beisman i. Ma4orit%: do not need coercionA however ma% be sufficient ii. ,issent: need direct coercion 6. ,isadvantage: ver% little woul violate the establishment clause iv. Ex. $lleghen% v. $?7C ./1D13 " EcrFche # mehorahG /. 2 separationists .HrennanA *tevensA Marshall3 " both would be unconstitutional 6. : accommodationists .Ienned%A 'ehn!uistA *caliaA Bhite3 " both would be constitutional 2. 6 neutraliti% .Hlac-much # O?onnor3 " endorsement test horton v. ?aldor ./1DJ3 " state law that gave emplo%ees right not to wor- on *abbath i. *tatute wor-s to advance religion because: /. 5reference to religion over non&religion 6. )o accommodations " is an absolute that private emplo%ers must follow 2. Hurden on others due to the accommodations for him :. Henefiting some religious interests .*abbath3 over others

HISTORY: I. 'eligious Establishments a. ?oncept behind establishment: i. 5olitical rights dependant on being member of faith ii. Kive tax mone% to state religion iii. *uppression of alternative faiths iv. 'egulate church structure # membership v. ?ompel worship # attendance vi. 'eligious education in public schools vii. 'eligion has more active role in government viii. Entrenchment of religion b. $rguments for establishment: i. 5olitical view: 5romote happiness # order through diffuse religion /. 5iet% # moralit% necessar% for a proper state 6. ;earts # minds are something onl% religion can reach " state can onl% reach perfect duties .li-e do not -ill3 but not imperfect duties .li-e charit%3 2. $ll get benefit of diffuse religion because creates moralit% :. Easier to influence people before the% mess up then punish them ii. heological view: power of state should be used to help the true religion and spiritual welfare of the citizens iii. Is localization of church an establishment( Or voting with feet( c. Ob4ections to establishment: i. 'eligions flourish without government support /. ?orruption due to state interest 6. Minorit% religions could create strife ii. Intolerant iii. $nti&?hristian to use coercion iv. ?ompelling contribution to religion is violation of libert% of conscious /. $rgument against: can lev% taxes 4ust cant force worshipLbelief II. Influences on $eli%ious &iberty 6

a. ' ma(or )ie*points !urin% foun!in%: i. Puritan: Etheological viewpointG /. main points: a. religion is a concern of government b. protection of religion is most important aspect of religious libert% 6. free exercise view: fairl% intolerant 2. establishment view: star- separation of church # state but can use taxes to support religion :. view: coordinating %et distinct spheres: a. both religion # state are to do Kods wor- on earth b. are partners but do not allow co&mingling ii. Ci)ic $epublican " Epolitical view point " tied to puritan viewG /. Main points: a. 'eligion is a concern of government b. 5rotection of societ% is important aspect of religious libert% 6. Free exercise: accommodationists a. Morals are closel% tied to civic order # get morals from religion b. )eed diffuseA widel% held religious beliefs 2. Establishment: need a fund of common religious values a. *oft establishment b. *%mbols are important to give an identit% :. Bashingtons views: a. )eed compelling interest to accommodate iii. >effersons views: /. *a%s actions have no correlation with belief " is this true 6. *trict separationist &@ fear religion would corrupt government iv. E)an%elical " Etheological view pointG /. Main points: a. 'eligion is not a concern of government b. Important to protect religion &@ main concern was corruption or religion 6. Free exercise: fairl% tolerant 2. Establishment: a. 'eligion is voluntar% # inward loo-ing b. ?annot use taxesA etc. to support church :. 9iew: deepl% s-eptical about mixing church # state J. *upporters: $dam *mith # ;ume v. Enli%htenment " Etheological viewpoint " closel% tied to evangelical viewG /. Main points: a. 'eligion is not a concern of government b. 'eligious libert% is about protecting societ% 6. 9iew: primar% concern is protecting societ% from religion " deepl% s-eptical of organized religion b. 7oc-es 9iew " 7etter ?oncerning oleration ./MD13 i. E!ualit% " no person has authorit% to determine who is saved /. 5uritans would not have agreed with this 6. $rgument that there are certain things ever%one should do to be savedLone true religion ii. Irrationalit% " cannot change inward beliefs through coercion /. ?oercion can onl% wor- on a persons will not on a persons understandings 6. 'eligious involunterism " cannot <choose= religion iii. 7egislative " would ma-e being saved dependant on place of birthLsalvation would be random 2

c.

d. e.

f.

iv. heological " for Kod to decide who is saved v. 5roposed division: /. ?ivil " ever%thing concerning the public good 6. 'eligion: care of souls and rites or ceremonies of worship vi. Main point: can have a government religion outwardl% but should not coerce an%one to follow it 9$ $ssessment ?ontrovers%: i. 5a% taxes to support religious teachers /. *ent to sectA the tax pa%er chooses 6. Cndesignated funds go to a religious fund ii. >ustification for bill: /. Importance of ?hristian -nowledge for government to wor- " ?ivic 'epublicans &@ civic order arguments Madisons view: religious # secular interests best advanced b% diffuse power &@ need multiplicit% Ma!ison+s $emonstrance: ./0DJ3 i. 'eligious volunterism: /. Inalienable " religion depends on eachs mind 6. ?an choose salvation on own terms 2. *imilar to 7oc-e ii. *ocial contract: /. Man should be governed onl% b% themselves or from their authorit% 6. Onl% rights given to a civil societ% can be transferred to government iii. *lipper% slope /. )eed to protect against encroachments on small liberties iv. E!ualit% /. *ome religions will be hurt # some will be burdened 6. +ua-er # menonite exemption raises !uestions v. Incompetence " magistrate is not a 4udge of religious truth vi. Kovernment is unnecessar% " ?hristianit% flourished without government support vii. ?orruption viii. Cnnecessar% for civil government " leads to abuse and t%rann% ix. *ignal of persecution x. ,epopulation " people would leave for more tolerant land /. $dam *mith argument " nations wealth depends on its population xi. *trife " historical argument xii. $dverse to religion /. ?reates bac-lash b% non&believers xiii. *hould not promote a law that will be widel% bro-en xiv. Ma4orit% " should onl% be approved through ma4orit% not through legislature xv. *lipper% slope " could change other inalienable rights 'eligious Freedom Hill .>efferson3 i. 5reambleLreasons for bill: echo of 7oc-e /. Mind is free 6. %rann% leads to establishing false religions # coercion 2. *hould not den% office or participation in government based on religious views :. ithes result in corruption of religion J. Bould ma-e magistrate the ultimate decider of the correct religion when onl% god has that power M. In the end the truth will prevail ii. Ma4or points of bill: /. ?annot force attendance or worship

III.

I9.

6. 'eligion cannot be used to change a persons civil rights g. Framing the First $mendment: i. Man% language proposals: freedom of conscious v. freedom of religion ii. Free Exercise: refer to actions or to conduct( 7eaves open !uestions of accommodation iii. Establishment: federalism provision( 'eligion v. non&religion( Intra&sect( Incorporation a. Originall% neither clause was incorporated i. 5ermoli v. )ew Orleans ./D:J3 " constitution does not protect religious freedom of citizens from the states " are no inhibitions on state action in the constitution b. Free Exercise ?lause " incorporated in 7ochner " fundamental libert% of due process clause includes the free exercise clause " !uintessential individual right c. Establishment Clause " incorporated in Everson i. 5roblem with incorporation of establishment is that the test for incorporation is those rights that are <implicit in the concept of ordered libert%= /. ,ebate over whether establishment clause is about: a. 'ight to be free from coercion b. Or federalism ii. homas argument that should not be incorporated " )ewdow .6NN:3 /. Originalist argument: were man% state establishments at time of framing " not their concern " is meant to be a federalism clause a. Meant to -eep congress from interfering with state establishments 6. Free exercise clause is what protects individual rights a. Establishment clause is not concerned with coercion 2. )ot re!uired for ordered libert% iii. Hrennans argument that it should be incorporated " *chempp /. ;istor%: should loo- at framing of 8I9 to determine incorporation # at that time was viewed as more of a personal libert% # no state establishments a. 8I9 created new rights that did not exist previousl% " meant to overrule 5ermoli 6. Free Exercise clause is not enough to protect individual libert% 2. *uperfluidit% " wh% would the% incorporate one clause and not the other( iv. Hlaine $mendment " tried to extend FE # E? to the states # did not pass: /. homas: because it the% did not want the two clauses to appl% to states 6. Hrennan: thought the% did alread% appl% to the states # so unnecessar% &ocal Establishments: ?it% of 'a4neeshpuram .1thA /1D:3 a. ?ommune owned b% a Indian guru and his religion " is this establishment( b. &emon Test: i. 5rimar% effect is to promote religion " clear benefit to religion ii. 5urpose iii. Entanglement " allows church to exercise governmental powers /. his cit% exists solel% to do religious activities 6. a-ing choices awa% from individual c. ?lear re4ection of federalism view of establishment clause d. $rgument for allowing the commune: people can vote with their feet # go elsewhere e. $rgument against: man% cannot leave # eventuall% will have no where to go

DEFINITION OF RELIGION: I. ,efinition of Helief L ?onsciencious Ob4ector ?ases: a. $ule for exemption to !raft: $ sincere and meaningful belief which occupies in the life of the possessor a place parallel to that filled b% Kod of those who are clearl% religious b. $rguments in favor of broad definition: i. E!ual treatment of all " J

II.

/. -eeps religion # non&religion on the same grounding 6. denominational neutralit% between orthodox views # newer views ii. Ieeps court from deciding the validit% of a religion " onl% loo- at sincerit% iii. ?ourt does not then have to get involved in constitutional !uestions c. $rguments against a broad definition: i. Moral code or philosophical ideas are not the same as religion ii. Overinclusive &@ an%thing could be an <utltimate concern= iii. *tretching text which mentions <supreme being= iv. $dministrative difficulties " incentive to get religion to avoid the draft d. ?ase *upport: i. C* v. *eeger .*?A /1MJ3 " created original test " will give a lot of weight to the individuals claim that a belief is religious " do not want to in!uire /. )eed deepl% held beliefs ii. C*. Belsh .*?A /10N3 " expanded definition to an% t%pe of deepl% held beliefs /. $n%thing that creates ob4ection in conscious due to deepl% held <moralA ethicalA or religious beliefs= 6. Expanded definition to point where onl% those who changed their beliefs due to the war are not exempted ,efinition of $eli%ion: a. Test: i. Fundamental concern " nature of the ideas /. ,eep !uestions: lifeA deathA mans role in the universeA proper moral code 6. ;ighl% personal thoughts ii. ?omprehensive ideaLbelief s%stem /. Hreadth 6. ,epth iii. $), *igns # s%mbols /. ?lerg%A servicesA holida%sA etc. b. 5roposed definitionsLhistorical definitions: i. Essential elements in /Dth centur%: godA dut%A acts of obedience ii. <higher power= /. does there have to be a penalt% for not following Kods commands( iii. Cltimate concern " ps%chological approach /. $ll that matters is how deepl% people believe 6. Bhat about dutiesA etc. that are not religious iv. Famil% resemblance " all religions should have certain things in common c. Cnitar% v. ,ual ,efinition: i. Multiple definition advantages: /. Expansive notion for FE # narrower definition for establishment clause 6. Otherwise would lead to invalidation of government programs ii. Cnitar% definition: /. extual argument " <religion= onl% appears once between the two clauses 6. Bould not lead to repeal of government programs " 4ust overlap with belief s%stemsA not actuall% about the belief s%stems 2. Bould create incentives to tr% to fall in the categor% that is free from regulation but can receive government support :. Bould create chaos d. *incerit%: can onl% evaluate sincerit% of teachingsA not truth or falsit% i. )ote: difficult% of separating the two in!uiries ii. C* v. Hallard ./1::3 " Epeople who claimed to heal othersA indicted for mail fraudG e. ?ase: Malna- v. Oogi " cannot teach a Oogis theories in schools because has two parts: meditation # teachings concerning the pure creative intelligence on which life is based.

RELIGION IN THE REGULATORY STATE I. Test for ccommo!ations un!er Free Exercise: a. Is the statute facially or intentionally !iscriminatoryi. If %es " appl% strict scrutin% ii. If no " proceed to next steps iii. ?ase *upport: /. 7u-umi " Elaw against animal sacrificesG " legislative histor% ma-es clear this was motivated b% animus against this group 6. *mith " cannot outlaw conduct which is purel% religious .ex. cannot worship statues3 b. Fe!eral: apply $F$ .almost same as *herbert est3 i. Test: .. Sincere reli%ious belief a. ?annot be a wa% of life or use secular considerations .Ooder3 b. >ur% can be charged with determining sincerit% of belief but not truth or falsit% .Hallard3 i. ,issent: difficult of separating belief from believabilit% c. 9er% rare to see this point litigated /. N, Substantial bur!en a. Test: <purpose or effect= is to impede observance .*herbert3 b. wo t%pes of burdens: i. $ule: ,irect burden " have to have this now ii. Indirect burden " must have secular purpose # effect # no other means to achieve the law .Hraunfeld3 /. $ule: )ever enough c. ?ase *upport: i. Hraunfeld " E*unda% closing law indirectl% effects 4ewish store ownersG /. indirect financial burden on >ewish store owner is not enough 6. note: hard to see difference between direct # indirect benefits " *unda% closing laws have economic impact # are indirectP sherbert is direct ii. 7%ng " Ebuild road through Indian sacred landsG " size of indirect burden does not matter /. ?annot get a veto over public programs that do not prohibit free exercise 6. M5: FE allows individuals to be free from certain government compulsion but does not re!uire government to change its internal affairs to comport with individuals religious beliefs 2. ,issent: disagrees " sherbert # %oder this indirect burden is enough ii. If: /. )o: dismiss claim 6. Oes: appl% strict scrutin% c. State ction i. '7CI5$: appl% to a confined person or to land use( ii. *tate 'F'$ or ?onstitution( iii. Smith: .. Is it a hybri! claim or in!i)i!uali0e! assessment0

a. If %es " appl% strict scrutin% b. ?ase *upport: i. Ooder Eamish schoolchildrenG /. ;%brid claim: free exercise # right of parents to control their childrens education ii. *herbert " Eunemplo%ment benefitsG " individualized assessment iii. 'ader " Ecannot live off&campus in religious housingG /. Imposed selective burdens " individualized &@ seems li-e he is the onl% one who did not get an exemption /. Test: a. neutral %enerally applicable la* b. only inci!ental effect on reli%ion 2. if: a. %esA no re!uirement of accommodation b. noA strict scrutin% :. ?ase *upport: a. 7u-umi " Eanimal sacrifice lawG i. Fails neutralit% anal%sis hinged on the rampant under inclusion ii. 9er% obvious that not neutral: /. ext seems aimed at religion 6. owns actions to enact seemed aimed at this church 2. Impact is onl% on this church d. Strict Scrutiny: i. Compellin% %o)ernment Interest /. Halance with individual interests .O?entro3 6. Ooder " one of onl% cases to find for plaintiff a. $re not burdens on societ% b. $re able to exercise # understand their rights 2. Eliminating discrimination " can remove JN/.c3.23 status from discriminator% schools :. 'ader " Ecannot live off&campus in religious housingG a. )ot able to show that the universit% housing was more diverse or improved academic performance .asserted claims3P but generall% ma% have been compelling interests b. actuall% struc- down under smith anal%sis of individualized assessments( ii. Narro*ly tailore! iii. ?ase *upport: /. 7u-umi " Eanimal sacrifice statute aimed at ?uban religionG a. ?ompelling government interest is undermined b% the substantial underinclusiveness of the proposed interests .animal cruelt% # health3 6. )ewar- " Emuslim police forced to shave beardsG a. 5roposed interest in uniformit% of police &@ allows medical exemptions " undermines this rationale 2. O?entro " Ereligion that needs a schedule I drug for religious actsG a. 7oo- at exemptions on individual level b. Interest in uniformit% is not enough c. *lipper% slope is not enough because often re!uire exemptions :. 7ee " E$mish have to pa% social securit% taxG a. *ocial securit% is ver% strong government interest " reluctant to open crac-s in social securit% # tax s%stems b. )ote this is a categorical approach " dont want dissenters coming out of the woodworD

II.

III.

he debate over accommodations: a. $ccommodations have become more important because of: i. 'ise of the regulator% state " more conflicts between the two ii. ,ebate over whether accommodation is re!uired or permitted b. For $ccommodation: i. Framers intended it .ex. Bashingtons letter to the +ua-ers3 ii. *tate free exercise re!uirements: /. 7imit free exercise to when does not compete with peace # safet% &@ re!uire accommodation iii. ;istorical examples: /. Militar% exemptions 6. 'eligious assessments c. $gainst $ccommodation: i. here is no explicit re!uirement ii. ;istoricall% have said that accommodation is permitted but not re!uired /. Exemptions listed b% Mc?onnell are b% legislature not b% mandate of court iii. Bhen wrote /st amendment were worried about e!ualit% not about exemptions or aid Free Exercise 1 ccommo!ation: a. Helief # ?onduct .the Morman ?ases3 i. Principal: draw distinction between belief # conduct " onl% have right to free exercise when it is belief onl% /. ?riminal law " never can have exemption for conduct .religion is never above the criminal law3 6. ?ivil law " less certain where law isP sub4ect to regulations for protection of societ% ii. ?ongress can enact laws that regulate actions that are subversive to good order iii. ?ase *upport: /. 'e%nolds v. C* .*?A /D0D3 " could fine and impose criminal sanctions on those guilt% of pol%gam% " state can regulate actions even when motivated b% religion 6. ,avis v. Heason .*?A /D1N3 " can re!uire oath that do not believe in pol%gam% a. $dvocac% of criminal actionsA is criminal b. Indicates rule is onl% what is in %our head is trul% protected b% FE 2. Morman ?hurch v. C* .*?A /D1N3 " can revo-e churchs incorporation # give its propert% to the state because was incorporated under territorial laws b. Modern Exemptions i. ?antwell v. ?onnecticut .*?A /1:N3 " >ehovahs Bitness case &@ religion is a preferred freedom # can be restricted b% a strong showing of goernment interest ii. *herbert v. 9erner .*?A /1M23 " must provide unemplo%ment benefits when fired because of observing *abbath /. Sherbert Test: a. 'eligion " cannot be a belief s%stem b. Hurden( .purpose or effect is to impede observance3 c. ?ompelling interest( .<gravest abusesA endangering paramount interests=3 i. 9iolates denominational neutralit% " allow for *unda% exemption 6. If fail *herbert test " use strict scrutin% 2. ension with 'e%nolds: some conduct is permissible :. $dvocates formal neutralit% " must treat religious # non&religious reasons ali-e J. ;arlans dissent: accommodation is permissibleA not re!uired " for legislature to ma-e this decision iii. Bisconsin v. Ooder .*?A /1063 " $mish school children /. ?ompelling attendance would gravel% in4ure their free exercise rights 6. Faciall% neutral law can still violate free exercise clause

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2. )ote: denominational neutralit% concerns here " hard to see this accommodation being granted to an%one but the $mish a. *elf sufficienc% of $mish was important c. ,emise of Exemptions i. Emplo%ment ,ivision v. *mith .*?A /11N3 " pe%ote case /. *mith est: doesnt matter how much law burdens religion as long as is not singled out a. if neutral # generall% applicable onl% have to meet rationale basis b. if directed at religious practice " meet strict scrutin% 6. Bh% not using *herbert test: a. $narch% considerations b. ,o not have to evaluate legitimac% of religions c. ,o not have to balance religion # state interest d. Cndervalues state interests to use balancing test &@ onl% a few people are challenging so not actuall% a concern e. Helief conduct distinction &@ can regulate conduct that onl% incidentall% burdens religion f. 7egislature should ma-e these decisions 2. Principle: constitution permits but does not re!uire accommodations a. *hould use democratic process :. Minimum re!uired: formal neutralit% " cannot target religion J. O?onnor concurrance: a. *hould use the courtA not democratic process " safeguard of minorities b. *trict scrutin% should be used " this would have based M. $gainst *mith: a. he two clauses are meant to balance each other " without accommodation both clauses disadvantage religion i. Establishment clause alread% -eeps us from singling out religion to aid ii. *ecularization of societ% ii. 7u-umi v. ;ialeah ./1123 /. )ot general law " strict scrutin% d. 5ost&*mirth: 'F'$A HoerneA and '7CI5$ i. 'F'$ " tried to bring bac- *herbert standard after *mith /. Establishment clause issue: so sweeping that would create a tool onl% religious groups had to get wide spread exemptions ii. ?it% of Hoerne v. Flores .*?A /1103 /. Invalidates 'F'$ with regards to states because not within power under 8I9 QJ .violates congruence # proportionalit% re!uirements3 6. Is defining the text of constitution " onl% court has this power iii. '7CI5$: federal law for land use regulations # institutionalized persons ?urrent Free Exercise ,octrine: a. )eutralit% # Keneral $pplicabilit% b. Issues under ;eightened *crutin% i. Hurdens on 'eligion /. Hallard " sincerit% of religion can be decided b% 4ur% but not truth or falsit% 6. Hraunfed " can ma-e it more expensive to practice as long as practice is not outlawed a. ,issents " is same as tax " choosing between religion # economic survival 2. $re !uestions as to how close of a degree is there between direct # indirect support:

/N

9.

a. Ex. landlord who does not want to rent to unmarried cohabitants :. 7%ng Eroad through native $merican worship groundsG # Howen v. 'o% " Enative $mericans ob4ect to giving children social securit% numbersG a. ?annot give individuals a veto over government action b. ,oes not coerce an individual to give up religious beliefs " 4ust ma-es exercising them more difficult c. ,issent: burden includes actions that compel affirmative conduct .ex. Ooder attending school3 and actions that prevent conduct .this3 ii. Kovernment Interests /. 7ee " categorical test of compelling interest " re!uire uniformit% 6. O?entro " case&b%&case test of compelling interests c. '7CI5$ ?ases: i. ?onstitutional 5rotections aside from '7CI5$ " test: /. 9alid rationale connection between regulation # rationale for it 6. 5risoner has alternative means of expressing view or practice 2. Impact of accommodation on guardsA other inmatesA and prison resources :. $bsence of readil% available alternative ii. '7CI5$ is valid against establishment clause challenges .?utter3 iii. Test: /. *ubstantial burden: a. Oppressive to a significantl% great extent b. ,enial of a benefit c. Indirect burden d. ?oercive punishments 6. ?ompelling state interests a. *ecurit% b. 'educes spread of head&borne parasites c. 5ublic safet% " id prisoners 2. 7east restrictive means a. ,ivided on this: Must show actuall% considered # re4ected the efficac% of less restrictive measures v. deference to 4udgement of guards b. More exceptions " less li-el% to survive this iv. Barsoldier v. Boodford .1thA 6NNJ3 " Enative $merican who could not cut his hair # was punished in prisonG /. Kovernment interests .securit%A healthA public safet%3 were compelling 6. )ot narrowl% tailored " other prisons allow for long hair .exceptions or dont have polic%3 and have not had safet% problemsP women are treated differentl% v. ;aoevenaar v. 7azaroof .MthA 6NNJ3 " /. $ule: must defer to the opinion of the prison guards a. Individual exceptions create resentment # cop%cat effects b. ?reate too man% securit% ris-s " .this prisoner had been caught with contraband before # had tried to escape3 6. o overcome presumption in favor of guard: substantial evidence that have exaggerated their response to securit% considerations Establishment Clause 1 ccommo!ations: a. ?lash between the clauses: i. ?auses of the ension between the clauses: /. Krowth of social welfare legislation 6. Incorporation of the first amendment .increased times when tension occurs3 2. Overl% expansive interpretation of both clauses a. tension inherent in 7emon est: i. secular purpose " accommodation never has secular purpose

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ii. primar% effect " facilitates religious belief iii. entanglement " have to determine if belief is religious ii. tension in values of accommodation: /. e!ualit% # formal neutralit% 6. libert% # private choice in religious matters iii. how to solve the tension: /. 4udicial restraint " eliminate mandator% accommodation # reduce hostilit% toward accommodation under 7emon: .ex. 'ehn!uistA dissenting in homas v. review board3 a. Free exercise doctrine should be: general statute with purpose # effect of advancing secular goals then no re!uirement of accommodation .*mith3 b. Establishment doctrine should be: cannot support prosel%tizing activities b% putting secular authorit% behind it &@ an%thing that does not induce religious belief is fine .such as accommodation3 6. $ccommodation is re!uired &@ change establishment clause a. +uid pro !uo rationale: balances out other restrictions placed on religion b. 'eligious 4ustification: religion is above dut% to societ% c. *ecular reasons: public order .religious wont follow an%wa%3A e!ualit% 2. Formal e!ualit% "@ change FE clause doctrine # eliminate re!uired accommodations # ma-e voluntar% accommodations suspect :. $ctivitist position &@ leave doctrines as the% are # decide in each case whether an accommodation is re!uiredA permittedA or forbidden b. ?urrent ,octrine: i. Test: Ewhen an accommodation violates the establishment clauseG " current test to use /. 7ifts a government burden 6. )o burdens imposed on non&beneficiaries a. Must be done through as applied challenges b. Cnclear how big burdens must be 2. ,enominational neutralit% ii. Neutrality Test: Efrom texas monthl%G /. $ccommodation covers a wide arra% of religious # non&religious groups 6. Is for a secular purpose iii. ?ase *upport: /. ?utter v. Bil-inson .*?A 6NNJ3 " upheld constitutionalit% of '7CI5$ a. Eliminated burden because institutionalized are vulnerable i. Ma% create an incentive to get religion but this is ob. *howed no substantial burden on non&beneficiaries c. '7CI5$ is meant to expand denominational neutralit% d. ,o not need to create a pac-age of religious # secular accommodations 6. exas Monthl% v. Hulloc- .*?A /1D13 " Esales tax exemption on religious periodicalsG a. ?an incidentall% benefit religion if subsid% is for a wide variet% of groups b. ;oweverA subsid% 4ust to religious groups would not be allowed 2. ?aldor " imposes burden on others to re!uire emplo%er to give *abbath off &@ some cost imposed on the others ma%be o- but unsure how much :. B$ v. ;ardison " under itle 9II " do not have to accommodate if more than de minimus burden J. homas v. $nchorage " Edo not have to rent apartment to unmarried cohabitantsG .1th circuit3 as long as onl% economic harm to the non&beneficiaries that is fine .minimal harm3P is meant to protect stigma of minorit% religions c. ,enominational )eutralit% 5rong: i. $ule: if denominational preference is foundA strict scrutin% applies " do not need to get to /6

7emon est Eapplies to all establishment clause casesG ii. 5roblems under neutral laws: /. ?an still create denominational preference: a. Ex. onl% catholics have theor% of <un4ust= war &@ therefore rule that have to ob4ect to war on all fronts is not neutral to them .Killette3 b. Ex. rules that ma-e it significantl% easier for ma4orit% religions than minorit% religions iii. ?ase support: /. 7arson v. 9alente ./1D63 " Ehave to raise JNR of mone% from within communit% to have religious exemptionG a. )ot denominationall% neutral because much easier for ma4orit% religions 6. Iir%as >oel ./11:3 " Ehisidic 4ew school districtG a. ,elegating political power based on religion to a religious entit% .*outer3 i. *calia disagrees " lines could be drawn here for other reasons b. Even though no one else has as-ed for this need to be able to evaluate accommodation on its face. .*outer3 c. *tevens: this is segregationist 2. ?utter: can discriminate between religion # non&religionA but not between religions !. Per)asi)e 2o)ernmental Presence i. E)erson Test: /. ?annot set up church 6. ?annot aid or prefer one religion or all religions 2. ?annot force or influence individuals :. ?annot punish ii. 5rinciple: when high government presence standard is substantiall% relaxed iii. >ails: .?ruz v. HetoP *?A /1063 " disagree as to what 4ail needs to provide /. Hurder: no re!uirement that provide materials but cannot ban them either 6. 'ehn!uist: do not protect the right to prostelitize &@ free exercise claim onl% therefore 4ail onl% needs rationale basis 2. Cnder '7CI5$: a. *eems to be a burden on FE b. ,o not seem to have a compelling government interest c. ,isagreement as to the deference to prison officials iv. Militar% ?haplanc%: /. Cnder establishment clause: .IatcoffP 6ndA /1DJ3 " exception to &emon a. Is fine because there is no coercion or prostelitizing b. Framers intent " have long histor% of ths c. ?ounterveiling constitutional interests .Bar powers # free exercise clause &@ cannot force choice between helping government # religion3 d. ;ard to see under everson: clear benefit to religion e. ?ontrast with ?ruz: have affirmative dut% to militar% but not to 4ails( 6. Cnder free exercise clause: .'igdon v. 5err%A /1103 a. Kovernment cannot control what the chaplains sa% " 'F'$ &@ strict scrutin% i. ?ompelling interest was not enough .politicall% disinterested and -eep from prostelitizing3 ii. )ot narrowl% tailored b. Cnder state law would have used *mith POWER /2
OF THE

PURSE:

I.

II.

Kovernment $id a. Test: minimum of what cannot be done: i. ?annot set up a church ii. ?annot aid one religionA all religionsA or favor one religion iii. ?annot force a person to go or refrain from going to church iv. ?annot punish someone for their beliefs or attendance v. )o tax .in an% amount3 to support religious activities or institutions vi. )o participation in religious activities or groups b. Main #uestion: strict separation or neutralit%( i. he two positions cannot be reconciled ii. Everson ma4orit% " neutralit% .but thin-s this is verge of limit3 iii. Everson dissent " separation " but would allow for common rights /. *eems to be unconstitutional under *mith # 7u-umi c. ?ase *upport: i. Everson v. Hoard of Education ./1:03 " Ebusing to religious schoolsG /. $rgument that this is establishment: a. axes " effects prong " aid to religion # coercion to aid religion i. )o appropriations no matter what the sizeP helping to achieve schools purpose .same as 9$ assessment3 b. ?omplete wall &@ this is allowing some support for religion i. *a%s no establishment of religion not no establishment of church 6. *ame as providing general benefits " ex. fire protection a. 'e!uire neutralit% but cannot handicap religion b. Keneral program with incidental effects # third part% distribution 2. Main disagreement: whether this aids religion a. Is peripheral assistance enough to !ualif% as aid( ii. Hoard of Education v. $llen ./1MD3 " Etextboo-s loaned to religious schoolsG /. Ma4orit% from Everson became Minorit% &@ boo-s are different because at heart of purpose of school. No i! pproach a. &emon Test: i. Test: /. *ecular purpose 6. 5rimar% effect is not to advance or inhibit religion a. Ma4orit% of focus b. 5ossible choices: i. )o mone% to religious institutions ever except universal welfare .Everson was wrong3 ii. )o direct funding " no per capita funding iii. ,irect funding is o- if not used for religious purposes &@ focus on diversion iv. E!ual treatment 2. )o excessive entanglement a. ?atch&66: have to have oversight to ensure not furthering religion %et creates entanglement ii. Factors to examine: /. ?haracter # purpose of the institutions 6. )ature of aid provided 2. 'esulting relationship b. ?ase *upport: i. 7emon v. Iurtzman ./10/3 " Edirect aid to teachers of secular sub4ects in religious schoolsG

/:

III.

/. *truc- down on ver% narrow grounds " entanglement prong &@ would re!uire extensive oversight to ensure teachers are not crossing line into religious teaching 6. ,o not re!uire complete separation &@ focus on three main evils of establishment clause: sponsorshipA financial supportA active involvement in religious activit% 2. Favored b% strict separationists ii. )%!uist ./1023 " Emone% for maintenanceA tuition grants # tuition tax creditsG " strucdown /. struc- down under effects prong a. Maintenance " putting cap statisticall% is not enough to ensure that it is onl% spent on secular parts of school b. uition &@ were benefits for onl% private school children .not both public # private li-e in Everson3 i. $dvancing religion because supporting religious schools ii. 7eaves open !uestion of third part% choice iii. ,ifference from church tax exemption: increases aid # entanglement instead of eliminating it " specific v. general benefit 6. ax credits &@ used lemon # upheld: a. *ecular purpose " ensuring citizens are educated b. Effect " neutralit% # limited amount of aid were important c. Entanglement 2. ,issent: would not allow tax credit either " no indirect aid :. +uestions: a. Maintenance aid is no different than bussing is it( b. Is providing tuition e!ualizing .ma-ing them not have to pa% for two schools3 or is it an incentive to attend religious school( c. ?ollege is different because all students pa% tuition # aid is then not 4ust for the private schools iii. ilton ./10/3 " can help repair secular buildings iv. Mee- # Bolman ./10J3 " can provide remedial services b% public school teachers off grounds but cannot provide field trip transportation or general secular things .nothing but boo-s3 v. Hall # $!uillar ./1DJ3 " high point of no aid /. )o supplementar% education b% public school teachers on premises vi. Howen v. Iendric- ./1DD3 " 7emon is not applied as strictl% when get outside school setting Neutral i! a. In!irect ai!"Pri)ate Choice pro%rams: i. Test: 3use lemon4 /. *ecular purpose 6. Effects 2. entanglement ii. Test for pri)ate choice: 3un!er effects pron% of &emon4: ESelman estG /. )eutral with respect to religion 6. Hroad class or recipients 2. $id goes directl% to student .third part%3 :. Kenuine # independent choice J. Henefit is generall% applicable iii. ?ase *upport: /. Mueller: class is defined without reference to religion " tax credits to public # private school children 6. Bitters v. Bashington Ehelp blind pa% for vocational school " including seminar%G

/J

a. *witches from mandator% accommodation to permissible accommodation b. Factors that ma-es not direct aid: i. ,irect to student ii. Kenuine # independent choice iii. $id available to religious # secular iv. )o incentives to religion v. Bide range of available choices c. *eems to matter to ma4orit% how much mone% is involved d. 7emon used: i. *ecular purpose of helping disabled ii. Effect " neutral iii. Entanglement " no monitoring 2. Sobreist ./1123 " Esign language interpretersG " no divertibilit% issues a. Interpreters are different than teachers " will onl% sa% what is saidA no danger of inter4ecting religious teachings .as with teacher salariesA 7emon3 :. Selman .6NN63 " Evoucher programG " upheld because neutral program a. ,enominator problem " use all schools or those under voucher program( b. Bhat is enough to have genuine choice( i. ,issent argues not enough non&religious schools to have a genuine choice ii. Ma4orit% " an%one can participate c. ,issents: i. *tevens: none of characteristics allowed for such aid ii. *outer " aid is too substantial .unli-e witters # zobreist3 iii. Hre%er " divisiveness among groups b. ,irect ai! i. Test: permissible if: /. ,oes not result in governmental indoctrination a. Is an% religious indoctrination attributable to the school( b. Is it a subsid% of religion & neutralit%( i. *ecular purpose ii. )o regard to religion in giving out iii. 5rivate choice of distribution 6. ,oes not define recipients b% religion a. Financial incentive to underta-e religious indoctrination( b. *ame factors as p./ &@ neutral aidA secular criteriaA neither favors nor disfavors religionA broad class of beneficiaries 2. ,oes not create excessive entanglement a. If no incentive to choose religious school then is an independent choice ii. %ostini Test: /. Indoctrination L neutral application 6. Favor one religion L general class of beneficiaries 2. Entanglement L neutral content iii. Cnclear where law stands: but we -now what is not permitted: /. Intrinsicall% religious aid .ex. bibles3 6. *olel% religious beneficiaries .including school choices cant all be religious3 2. $n%thing more(( iv. ?ase *upport: /. $gostini ./1103 .overruled $guilar # Hall3 a. $bandoned: i. 5resumption that teaching on premises means li-el% to teach religion /M

IV.

ii. <s%mbolic union= of church # state iii. aid to education funds religious aspect b. merged entanglement prong with effects &@ onl% relevant within sub4ect of advancing or inhibiting religion 6. Mitchell v. ;elms .6NNN3 " most recent decisionT a. )ote: no dominant test is endorsed b% the court. hree ma4or views: i. 5luralit% . homasA 'ehn!uistA *caliaA Ienned%3 " an% aid is allowed as long as no discrimination &@ gets to indoctrination ii. O?onnor # Hre%er " aid is permissible if not used for religious purposes iii. *tevensA *outerA # Kinsburg .dissent3 " precedent precludes this t%pe of aid b. $bandons i. direct v. indirect distinction &@ 4ust matters if subsidizing religion ii. ,ivertibilit% &@ 4ust whether the aid itself has impermissible content iii. pervasivel% sectarian criteria c. 5asses agostini test because neutral application # private choice due to amount based on enrollment d. O?onnor: advocates multi&factor approach " concurs based on $gostini criteria i. would re!uire proof of diversion to religious uses e. ,issent: to determine whether aid or universal benefit &@ loo- at purpose # effect of challenged law State $estrictions on i! a. Public 1 &imite! Public Forums: i. Main issue: when allowing private religious speech to use government propert% or to receive government funds implicates the establishment clause. ,iverging views: /. $ll such activities violate establishment clause &@ compelling interest would be satisfied 6. Bhether reasonable observer would perceive government endorsement 2. ?annot exclude religious speech unless would be tantamount to creating church or coercing religious participation ii. Bidmar v. 9incent ./1D/3 " Ehave to allow religious worship on college groundsG /. $ule: 5ublic forum: cannot have content based exclusions unless meet strict scrutin% 6. Cses 7emon est a. 5urpose " opening facilit% to all groups b. Effect " an% effect would be incidental c. Entanglement " not re!uiring an% monitoring 2. ?ompl%ing with establishment clause is not compelling here because: a. )eutralit% is all that is re!uired # an% religious benefit would be incidental b. Open forum reduces entanglement :. ,issent: state can ma-e own polic% about things that incidentall% help or hurt religion " but do not re!uire states to do this a. Is not a free speech case " worship is not under free speech protection b. hin-s value of separation is a strong enough state interest iii. Kood news v. Milford .6NN/3 Eallow religious organization to use elementar% school right after class to hold meetingsG /. $ule: limited public forum: can have content discrimination but not viewpoint discrimination

/0

9.

6. o -eep this club out would be viewpoint discrimination against religious views 2. Is neutral # no coercion &@ taught with secular point of view :. ,issent: school should be able to draw line between speech with religious view point # worship .this is worship3 iv. 'osenberger v. C9$ ./11J3 " Eprinting program had to allow for religious publicationsG /. 7oo- at two factors: a. 5urpose # ob4ect of government actions b. ,etails of operation " neutral in regards to religion 6. Found it was a limited public forum # this was viewpoint discrimination. Ewhen government itself is not spea-ing and is meant to encourage diversit% have to allow for different viewpoints " note significant danger of government oversight of speechG Factors: a. )o endorsement b. Indirect aid c. Hroad class of beneficiaries d. )o diversion e. )ot a tax 2. $rgument for school: a. 7imited forum # content discrimination b. )eutralit% is not main point is direct aid i. his is direct aid because no private choice c. )ot public forum " funding is different than school rooms d. his is essential violation of establishment clause b. 7oc-e v. ,ave% .6NN:3 " Epublic scholarships # state does not have to allow student to use to become a ministerG i. here is room between the clauses " this is it /. here is third part% .student3 ii. )ot faciall% a problem .7u-umi3 " not stopping ministers from doing an%thing # not re!uiring students to choose between religion # benefit .*herbert3 " limiting categor% of instruction /. $llows student to go to ?hristian schoolA but cannot use public mone% to be pastor 6. Minimal burden on him 2. )o animus :. herefore not strict scrutin% iii. ?annot use 'osenberger " this is not a speech case iv. ,issent: this is benefit # then li-e *herbert have to allow his free exercise # thin-s should appl% 7u-umi " discriminator% on face v. +uestion: is this limited to careers in the ministr%( " unsure of breadth of decision vi. 7oo- at with Everson " what is neutralit%( ?haritable ?hoice a. ?haritable ?hoice *tatute: i. wo t%pes of available funding: /. ,irect funding b% contract &@ cannot be used to further religious purpose 6. 9oucher " true private choice &@ no restrictions on mone% ii. 5urposes: /. protect religious freedom of provider a. )eutralit% .between religion # non&religion3 b. Exemption for hiring c. $void entanglement issues # allow signs # s%mbols 6. 5rotect beneficiaries: a. $lternative must be available .within reasonable amount of timeA e!ual

/D

valueA easil% accessible3 i. More expansive than constitution .genuine choice3 " statute is e!ual value b. ?annot discriminate against beneficiaries based on views b. Mc?allum .0thA 6NN23 " Ehalfwa% house " religious house is 1 mo. rest are 2 mo.G i. Main concern: is this e!ual choice( /. Bhat is e!ual value # is it re!uired( 6. rue choice under constitution " provide same amount of mone% .Selman3 2. Free choice does not mean e!ual choice " one can be substantiall% better RELIGION, GOVERNMENT, AND CULTURE I. Efforts to create a 5ublic ?ulture: a. ?ompelled *peech i. $ule: do not have authorit% to compel speech .thus do not need to loo- at FE3 ii. ?ase *upport: /. ?ommonwealth v. ?oo-e .MassA /DJ13 " Ecan re!uire -ids to sa% lords pra%er # ten commandmentsG a. Bas in school for secular reasons " no teaching or preaching b. ,o not have to affirm the statementsA 4ust repeat them 6. Hoard of Education v. Harnette ./1:23 " Ecannot re!uire students to salute flagG a. Ma4orit%: i. *aluting flag re!uires an affirmation of belief ii. ?annot coerce consent to the authorit% of C* government iii. Invades /st amend sphere " protection of intellect # spirit b. ,issent: i. Is allowable practice to encourage national unit% ii. ,o not subordinate the state to religious minorities 2. orcaso v. Bat-ins ./1M/3 " Estruc- down test oath to be a notar%G a. 9iolation of Everson " i. 5utting religion above non&religion ii. ?annot force someone to profess a belief or disbelief in religion b. FE &@ protect his freedom of belief b. Public Prayer: i. School Prayer: /. M5: pra%erA even if voluntar%A nondenominationalA or silent is impermissible in public schools a. Inherentl% religious activit% and does not belong in public schools 6. Fight over coercion: a. $ule: is not re!uired to show violation of establishment clause i. Otherwise superfluidit% of clauses ii. 5urpose of clause is to go further than coercion .ex. alienation3 iii. 5revents degradation of religion b. wh% it would be re!uired: i. concern of clause is coercion ii. historical practice iii. allowing pra%er is accommodation iv. public nature of religion c. indirect coercion .ps%chological coercion3 is enough to show coercion i. $ule: if show coercion is automatic violation of establishment clause 2. ?ase *upport: a. Engle v. 9itale ./1M63 " Estruc- down compelled pra%er at beginning of /1

school da%G i. )eutral # voluntar% is not enough ii. ,o not re!uire coercion to show violation of establishment clause iii. Indirect coercion " when government puts its power behind something iv. *eems to advocate strict separation view b. $bington *chool v. *chempp ./1M23 " Estruc- down bible being read prior to class beginningG i. $ule here: neutralit% between religion # non&religion /. FE " advocating *mith li-e rule " neutral generall% applicable laws ii. Establishment clause means cannot inhibit or advance religion iii. ,ifference from FE clause: /. FE need to show coercion 6. FE need to show an infringement of individual rights iv. ,issent: FE rights of other children " accommodation &@ onl% stri-e down when there is coercion c. Ballace v. >affree ./1DJ3 " Estruc- down moment of silenceG i. 7eg. histor% made clear this violated p./ of 7emon because meant to encourage pra%er /. *ome agreement that moment is not inherentl% religious d. 7ee v. Beisman ./1163 " Estruc- down pra%er at middle school graduationG i. Ma4orit%: /. ,o not use 7emon because there is coercion: a. Kraduation is not voluntar% b. 5eer pressure to stand 6. ?an clearl% attribute religious statements to state 2. *ilence: can be seen as participation or endorsement ii. ?oncurrences: /. ,o not need to show coercion " but showing is sufficient to establish violation 6. Kovernment role in religion is anti&democratic iii. ,issent: standing is sign of respect for religion of others e. El- Krove v. )ewdow .6NN:3 " Epledge of allegienceG& O?onnor: i. Factors which allow this instance of ceremonial deism: /. ;istor% " long histor% v. novel references 6. *piritual communication or penitence v. solemnizing event 2. Favoritism :. Hrevit% .solemnizingA easier to opt out3 ii. &e%islati)e Prayer: /. $ule: do not use 7emon test " this is an exception due to long histor% a. Bont be upheld if clear is for discriminator% purpose 6. ?ase *upport: a. Marsh v. ?hambers ./1D23 " Eupheld legislative pra%erG i. Ma4orit%: do not need to appl% lemon /. 7ong tenure is not a per se violation &@ have to show bad motivation 6. ?an be paid b% taxes because of histor% 2. Even if in monotheistic traditionA not used to promote religion ii. ,issent: 6N

/. If used lemon test would not be upheld a. ?lear religious purpose b. Effect is to promote certain religions c. Entanglement: i. Overseeing religious affairs ii. ,ivisiveness created 6. &arson test: cannot discriminate among religions unless pass strict scrutin% " this discriminates among religions 2. 5urposes of separation: a. Kuarantee of individual right of conscious b. ?hurch autonom% c. 5revent degradation of religion d. Ieep religious issues from being political battle :. 7etting histor% trump what is a clear violation " shouldnt: a. 7egislature is not alwa%s careful about constitutionalit% b. ?onstitution changes with time J. ?lose tie between religious freedom # democrac% b. *impson v. ?hesterfield .:thA 6NNJ3 " Eupheld leg pra%er that did not allow a wican to give the invocationG i. MP: can exclude non&traditional ministers ii. Marsh is an exception due to expression of general beliefA solemnizing eventsA and unif%ing experience iii. Important: pra%er is directed onl% at legislature itself iv. $ule: wide latitude to determine who pra%s &@ onl% not upheld if show bad motivation v. Bider inclusion than marsh &@ doesnt matter the% excluded this one person c. Public $eli%ious ,isplays i. ;olida% *%mbols /. MP: allow religious s%mbols as long as do not conve% endorsement of religion or a particular religion /. $ules: a. Cse 7emon test b. Cse O?onnors En!orsement test: i. *ub4ective meaning " did government intend to conve% endorsement or disapproval( ii. Ob4ective meaning " would ob4ective observer see governments actions as endorsing or disapproving of religion iii. MP: hinges on e!ualit% " no alienation of an%one iv. 5roblems with the test: /. Isnt someone alwa%s an outsider( 6. Bho is the audienceLob4ective observer( 2. ;ighl% sub4ective 2. ?ase *upport: a. 7%nch v. ,onnell% ./1D:3 " Eupheld crFche as part of larger displa%G i. Ma4orit% " uses 7emonA though not confined to it /. *ecular purpose " has to be wholl% motivated b% religious concerns 6. Henefit " an% benefit is indirectA remoteA # incidental a. ?ompares to past holdings 2. Entanglement " no continuing surveillance # no 6/

divisiveness ii. O?onnor la%s out Endorsement test iii. ,issent: need to divide secular # religious aspects of ?hristmas and can onl% endorse secular parts /. )o secular purpose 6. ,ifferent than ceremonial deism .disagreement with O?onnor3 2. ?heapens religious s%mbols b. ?ount% of $lleghen% v. $?7C ./1D13 " Eupheld menorah but struc- down crFcheG i. : votes to affirm both ii. 2 votes to den% both iii. 6 votes to stri-e down crFche # uphold menorah ii. en ?ommandments .. Possible establishment tests: 5%eneral not (ust ten commn6 a. )on&preferentialism b. 7emon i. 7oo- at coercion now .Ienned%s concern in 7ee3 c. Endorsement d. ,ivisiveness .Hre%er3 6. MP: cannot place religious s%mbols on government propert% if endorses religion &@ loo- at histor%A purposeA and context to ma-e determination 2. Mc?rear% v. $?7C .6NNJ3 " Estruc- down ten commandments displa% due to histor%G a. Failed p./ of 7emon " clear purpose was to advance religion b. )eutralit% is primar% purpose of establishment clause c. ,issent .*calia3 " i. Kovernment can favor religion ii. his application heightened the 7emon test: .. P./ 7 secular purpose has to be pre!ominate iii. his is secular displa% histor% should not change that iv. ?an prefer monotheism under first amendment :. 9an Orden v. 5err% .6NNJ3 " Eupheld texas /N commandments monumentG a. ,id not use lemon " loo-ed at nature of monument # histor% .from 7%nch # Beisman3 i. 7imitations: /. *chools 6. 5assive v. active use b. ?oncurring .Hre%er3 " onl% vote that changed between casesT i. *hould be neutral # non&denominational ii. ?ircumstances indicate it is for a secular purpose iii. 7ac- of divisiveness so far c. ,issent .*tevens3: i. ?an go be%ond denominational neutralit% which was primar% thrust of first amendment d. Evolution # ?reationism i. $ule: cannot put limits on teaching evolution within schools /. ?reationism is inherentl% religious .(3 ii. ?ase *upport: /. Epperson v. $r-ansas ./1MD3 " Estruc- down law that could not teach revolutionG a. 'e!uire neutralit% between religion # non&religion i. his is pro&religious because meant to get rid of one theor% that 66

II.

conflicts with religious views ii. ailoring school curriculum to one set of religious beliefs b. ?oncur: potential secular reason " actuall% neutral because withdraws a controversial sub4ect 6. Edwards v. $guillard ./1D03 " Estruc- down law which re!uired e!ual time for creation # evolutionG a. ,oes not fulfill a secular purpose: i. 7imits flexibilit% ii. ,oes not encourage all scientific though b. ,issent: i. Onl% need a secular purpose ii. ?an act based on religionLreligious opinion e. ?hallenges to *chool ?urriculum i. Mozert v. ;aw-ins ?ount% .MthA /1D03 " Emother ob4ects to reader because has large list of reasons wh% conflicts with her religious beliefsG /. )o burden on free exercise: a. Exposure is not the same as teaching or indoctrination i. Cnli-e *herbert " re!uirement of affirmation ii. Cnli-e 7ee v. Beisman " no ps%chological coercion b. )ot mandator% that children have this education " availabilit% of home schooling # religious schools 6. Meant to encourage toleration a. ?ivic toleration " recognition of pluralistic societ% &@ this we can re!uire of children in public schools i. Eliminates divisiveness ii. ?ompare this with 7ee v. Beisman b. 'eligious toleration " accept others views &@ this we do not re!uire of children 2. ?oncurrance on compelling state interest: a. Important to expose children to controversial ideas and encourage critical thin-ing and 4udgment s-ills b. Opt out would be inconsistent with exposure to different ideas :. ?oncurrance: a. here is a burden: re!uiring them to do thin-s which are against their beliefs b. ;owever: no re!uirement that school 4ustif% ever% exception or wh% not ma-ing exception &@ curriculum is bounded onl% b% establishment clause ii. IO *tate Hoard v. 'udasil .IOA /1013 " Eextent to which state can regulate private schoolsG /. eacher certification " cannot re!uire &@ not re!uired to create good citizens &@ purpose of schools 6. Mandator% boo-s " creates same problem behind wh% children were pulled out of schools 2. $ccreditation " can onl% do through standardized testsA an%thing more is too much entanglement 'eligion # ,emocrac% a. $udi " moral argument that each voter should have a secular rationale for votes i. M5: religion can be primar% reasonA but also have to have sufficient secular reasons ii. 5rincipals: /. 5rincipal of secular rationale " have to have secular rationale when restrict rationale 6. 5rincipal of secular motivation " should abstain from advocating a position

62

without a secular rationale iii. 'ationale: /. $ccessibilit% concerns of religious reasons 6. 'esentfulness of those who do not have religious reasons 2. 'eligious factions are less li-el% to compromise: a. Infallible authorit% b. Cndermining religious freedom c. *aving souls is paramount to religion b. Mc?onnell i. M5: can sa% L support believes however %ou wantA is for the mar-et place to determine which rationales are acceptable ii. 'eligion is no more divisive than other reasons /. $ll are appeals to personal experience L identit% politics 6. E!uall% accessible iii. 9alue of democrac% " compromise among all voices /. 'eligious are li-el% to be resentful and less li-el% to accept laws if do not have a voice in politics at all

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