Professor Harpaz
Fall, 2011

D. Intrusion of Religion into Civic Life - the Court has only occasionally invalidated government action falling into this category. It struck down the zoning regulation in Larkin v. Grendel’s Den (page 426) because the city had delegated government authority to local churches. On the other hand, it upheld the Sunday closing law in McGowan v. Maryland (page page 421) on the ground that it had acquired a secular purpose even though the law had a religious origin. It upheld legislative chaplains in Marsh v. Chambers (page 431) on the ground that they were consistent with the original intent of the framers as evidenced by the fact that there was a long-standing unbroken practice of the hiring of such chaplains dating back to the Continental Congress and the First Congress after the creation of the United States. It upheld the display of a creche to celebrate the public aspects of the Christmas holiday in Lynch v. Donnelly (page 438) in a case where the creche was displayed along with secular symbols of the holiday. In a similar vein, in County of Allegheny v. ACLU (page 452) it upheld a menorah (a religious symbol of Chanukah) along with a Christmas tree (a secular symbol of Christmas) and a sign saluting liberty because the display in its entirety did not have the effect of endorsing religion. It only struck down a government display of a creche alone in a Pittsburgh courthouse in County of Allegheny since that religious symbol standing alone conveyed a message of endorsement of religion. Similarly, in the two recent cases involving displays of the Ten Commandments, the Court upheld a display on the grounds of the Texas Statehouse in Van Orden v. Perry (page 478) because the monument was erected to acknowledge the state’s political and legal history rather than to endorse religion. By contrast, the Court struck down courthouse displays of the Ten Commandments in McCreary County v. ACLU of Kentucky (page 494) because the history of the displays indicated they had the impermissible purpose of endorsing religion. The two recent Ten Commandments cases are another in a long series of cases in which the members of the Court divided over the issue of whether the government can prefer religion generally, in a nondenominational manner, over irreligion or whether it must remain neutral as between religion and irreligion. In its recent encounter with a display of a cross on government property in Salazar v. Buono, the Justices began a conversation about whether a cross can be a universal symbol to show honor and respect (e.g., for soldiers who died in the service of their country) or whether it is only a symbol of Christian beliefs. The majority concluded that a cross is capable of a universal message while the dissent concluded that a cross "conveys an inescapably sectarian message." In addition to addressing the issue of whether there is a secular purpose for the display of a cross in the context of a specific challenged cross memorial, the application of the endorsement test in the context of a memorial that displays a cross will need to address the issue of how the reasonable observer will perceive the cross.

In another case involving the display of a religious symbol on government property, Capital Square Review Board v. Pinette (page 468), the KKK erected a cross in front of the Ohio statehouse. The critical factor in Pinnete was that the government did not erect the cross. Instead it was a private organization that placed the cross in a public forum that was available for unattended displays. In this circumstance, the free speech clause protects the private speaker and at most may require the placement of a disclaimer to avoid the appearance of government endorsement of the religious message. Pinette, like the cases of Widmar, Mergens, Lamb’s Chapel, Rosenberger and Good News Club, involves the distinction between private religious speech which is protected by the free speech guarantee and government religious speech which is prohibited by the Establishment Clause. In cases of private religious speech seeking access to a public forum, the government must satisfy the strict scrutiny test. The government has not succeeding in satisfying this test in any of the cases in which the government has argued that its need to obey the Establishment Clause justifies discrimination against religious speech. One of the Court's most recent cases involving a religious display on government property, Pleasant Grove City, Utah v. Summum (page 511), also involves the public speech/private speech distinction. In Summum, however, a Ten Commandments monument was donated to the city and the city successfully argued that the park where it was displayed was not a public forum because it only displayed the government's own speech. The characterization of the monument as government speech allowed the city to refuse to display other religious monuments in the park without violating the free speech clause. However, it opened up the possibility of a challenge to the display of the monument under the Establishment Clause. While this issue was not before the Court in Summum, two members of the Court argued that the display would be constitutional relying on the reasoning in Van Orden v. Perry (page 478).

In a number of the display cases, there was some combination of government and private activity (the display was owned by a private entity, but was placed on government property or the display was owned by the government, but was displayed on private property). In such cases, it will be necessary to wrestle with the public/private issue addressed in Summum. A challenger who is arguing that the display violates the Establishment Clause wants the display to be considered government speech. Challengers who wants to add their own speech to the display want the speech to be considered private speech displayed in a public forum. The government could want to make either argument, depending on the context. In Summum, the government wanted the monument to be considered government speech because it didn't want to accept Summum's monument and it thought it could withstand an Establishment Clause challenge. In County of Allegheny, by contrast, the government wanted the courthouse creche to be considered private speech to avoid it being struck down under the Establishment Clause.

E. Discrimination Against Particular Religions and the creation of a Denominational Preference which gives one sect an unjustifiable benefit not available to other religious denominations are central concerns of both the Establishment and Free Exercise Clauses. Courts use a strict scrutiny test in cases of facial discrimination against particular religions. Such facial discrimination exists when a law singles out a particular religion by name and subjects it to unfavorable treatment or when it makes explicit and deliberate distinctions between religious organizations as the Court found to be the case in Larson v. Valente (page 526). If the Court finds that the law “inhibits religion,” but does not contain facial discrimination or its equivalent, the Court will subject the law to review under the Lemon test, as it did as an alternative analysis in Larson. An example of a case where the Court rejected the argument that the government was discriminating against particular religions and, therefore, refused to apply strict scrutiny is Hernandez v. Commissioner of Internal Revenue (page 533). In that case, the Court rejected the argument that the federal government was discriminating against particular religions when Congress defined a charitable contribution under the Internal Revenue Code. Since the law was not viewed as involving "explicit and deliberate distinctions between different religious organizations," the Court applied the Lemon test rather than strict scrutiny and upheld the law on its face.

The strict scrutiny test is also used by some members of the Supreme Court to analyze denominational preferences, favoritism of a particular religion. An example of the use of this standard arguably is found in Parts II-B and II-C of Justice Souter's opinion in Kiryas Joel (pages 561-62) where he characterizes the act of creating a special school district as not neutral among religions and concludes that the legislature had alternative methods of providing special education services available to it. Under strict scrutiny, the government must have a compelling government interest and must have chosen means that are necessary to the achievement of that interest. Under the test, in order to use discriminatory means, the government must not have available alternative nondiscriminatory means to achieve its compelling objective. In Kiryas Joel, the Court found that there were alternatives available, including using mobile vans or allowing a variety of small villages to form their own school districts based on religiously neutral criteria, and thus struck down the creation of a special school district drawn along religious lines. 

The dominant test used by the lower courts to identify whether a group is a religion is the 3 part test developed in Judge Adams' concurring opinion in Malnak v. Yogi (pages 586-87): (1) the ideas of the group must concern ultimate ideas such as the meaning of life and death, the role of human beings in the universe and the difference between right and wrong; (2) the ideas of the group must form a comprehensive belief system and cannot only address isolated issues; and (3) the group must have formal, external or surface signs that may be analogized to accepted religions such as formal services, ceremonies, clergy, holidays etc. While the identification of a religion is not limited to traditional theistic religions, it does rely on the existence of an analogy to traditional religions and attempts to distinguish between lifestyle choices and religion and between secular philosophy, political ideology or social movements and religion. The distinction between a lifestyle choice and a religious practice is seen in Wisconsin v. Yoder (page 653). The distinction between a  social or political ideology and a religion is relied on in Africa v. Commonwealth of Pennsylvania (page 593).

While a large majority of the Court has always identified the nature of the government’s relationship to religion as one of neutrality, the meaning of neutrality has shifted over time. Moreover, there remains a deep divide on the Court over what variety of neutrality is required. Justices like Scalia and Rehnquist believe that the government must be neutral among different religions, but may prefer religion in general over nonreligion. Justices like Stevens, Souter and O’Connor believe that the government must be neutral among religions as well as between religion and nonreligion. Thus, in their view, the government may not, in its actions, endorse all religions and express a preference for religion over nonreligion. On the other hand, it is not impermissible for the government to promote a belief that coincides with the views of some or all religions. Thus, government preference for childbirth over abortion is not unconstitutional simply because that view is consistent with the views of the Catholic Church. Of the members of the current Court who have expressed views on this issue, only Justice Thomas has completely rejected the view that neutrality is constitutionally significant. In Justice Thomas’ view, the Establishment Clause was not intended to bar the states from establishing a state religion. It was intended to restrain the federal government and prevent it from interfering with state establishments of religion. In Thomas’ view, the state is allowed to create an established church, but, because of the protections of the Free Exercise Clause, the state may not legally compel its citizens to belong to that church or to participate in particular religious exercises.

I. Coercion

Another controversial concept is coercion. Some members of the Court (Justices Thomas and Scalia) use coercion to mean only legally compelled coercion. In their view, coercion is a central vice the Establishment Clause was designed to outlaw. These Justices reject the purpose prong of the Lemon test, and they view coercion as a necessary impermissible effect to find a violation of the Establishment Clause. Other members of the Court use coercion in a broader sense to include indirect coercion as well as direct coercion. Indirect coercion, under this view, can include psychological coercion as in Justice Kennedy’s opinion in Lee v. Weisman (page 356) characterizing graduation prayer as inherently coercive even though students are not legally required to attend graduation. In addition to disagreeing over the meaning of coercion, members of the Court also disagree about the significance of coercion. Justice Thomas, for example, treats the presence of coercion as an essential element of an Establishment Clause claim. By contrast, Justice Stevens does not believe that coercion is a necessary element of an Establishment Clause claim as he makes clear in his opinion in Santa Fe Independent School District v. Doe (page 387). In his view, the Establishment Clause is violated if the government has an impermissible purpose to advance religion even if it does so in a noncoercive way.

A. Preliminary Hurdles

B. Pre-Smith

C. Employment Division v. Smith

However, Smith avoided overturning prior cases in which laws were struck down as violative of the Free Exercise Clause using strict scrutiny by viewing those cases as falling within exceptions to the general rule. For example, Wisconsin v. Yoder was explained as a case in which the government was burdening a right protected by both the Free Exercise Clause and another constitutional right - the fundamental right of parents to direct the upbringing of their children. In such hybrid cases, it is still the law that the government must satisfy strict scrutiny by showing that it has a compelling government interest and that it has no less restrictive alternative means to protect that interest.

There are certain circumstances in which free exercise claims were always, even pre-Smith, given short shrift and those cases obviously survive Smith. They include cases where the courts grant great deference to government decisionmakers such as in the military context or the prison context.

1) The Supreme Court has decided two free exercise cases since Smith. The first was Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (page 706). In that case the Court distinguished Smith since the law at issue was not a neutral law of general applicability. It was purposefully designed to suppress particular religious practices. Under that circumstance, it was analyzed using the strict scrutiny test and it failed that test. The second was Locke v. Davey (page 718). In that case, the Court for the first time considered the issue of whether the exclusion of some aspects of religious education from a scholarship program violated the Free Exercise Clause. This issue arises as a consequence of the Court’s decision to allow sectarian schools to participate in private choice programs under cases like Zelman and Witters. The corollary question posed is whether sectarian schools must be permitted to participate or if their exclusion violates the Free Exercise Clause. While only resolving part of this issue, the Court in Locke v. Davey (page 718) upheld a Washington college scholarship program that refused to fund students obtaining a degree in devotional theology because of a provision in the Washington State Constitution that precluded such funding. The scholarship program at issue provided funding to students who attended sectarian schools and who took courses in religion and devotional theology, but excluded students who majored in devotional theology. Because religious schools and courses were funded, the Court refused to characterized the program as hostile to religion as in Lukumi. Under a less rigorous standard of review than the strict scrutiny test used in Lukumi, the Court concluded that the state had a substantial interest to justify the exclusion and that the exclusion imposed a minor burden on scholarship recipients. The Court did not consider whether programs that involved broader exclusions of religious education would be constitutional.

After Smith, Congress enacted the Religious Freedom Restoration Act (RFRA). The purpose of the statute was to restore, as a statutory right, the free exercise analysis that existed prior to Smith. The statute restores the strict scrutiny test as applied in Yoder and Sherbert for use in cases where a religious exercise is substantially burdened by the government. However, as the result of a Supreme Court decision, RFRA only applies to actions by the federal government, such as the treatment of prisoners in federal prisons, soldiers in the military, and the application of federal criminal laws such as the Controlled Substances Act. RFRA does not apply to state action because such an application of the statute was held to exceed Congress's power under Section 5 of the 14th Amendment.

After RFRA was struck down as unconstitutional, Congress enacted a new statute that it believed was more likely to survive a constitutional challenge. That statute is RLUIPA - The Religious Land Use and Institutionalized Persons Act. The statute, like RFRA, requires that the Court employ the strict scrutiny test if a law substantially burdens the religious exercise of an individual who is protected by the statute. The statute applies to land use regulations and institutionalized persons if the challenged program receives federal financial assistance, if the burden affects interstate or international commerce or commerce with Indian tribes, or if the burden results from a land use regulation that provides for a system of individualized review of the proposed use of the property. The statute relies on a combination of Congress’s Commerce and Spending Powers and the Smith Court’s reliance on the existence of individualized review as a rationale for distinguishing and preserving the decision in Sherbert v. Verner. Since its enactment, constitutional challenges to RLUIPA have been raised. In a recent decision, Cutter v. Wilkinson, the Supreme Court rejected an Establishment Clause challenge to the institutionalized persons provisions of RLUIPA. The Court concluded that the challenged sections of RLUIPA were a constitutionally acceptable accommodation of religion. RLUIPA rights are not absolute since the statute requires that “courts must take account of the burdens a requested accommodation may impose on nonbeneficiaries,” thus avoiding the difficulties of the statute struck down in the Caldor decision. In addition, the Act is to be administered on a neutral basis among religions and cannot be based on favoritism to particular religions. The Court has not yet considered any constitutional challenges to the land use provisions of the statute.