Religious Liberty



III. Religious Liberty

Day 34: The Origins of Religious Liberty (Tues. 4/8)

Key Case: Everson (1947)—NJ authorized local school boards to repay parents with children in private schools for the cost of bus transportation to the schools. 5-4 the Court upheld the statute against an establishment clause challenge, b/c it was a part of general education program which paid for buses for kids attending public and nonpublic schools. Everson sets out a neutrality principle.

Key concepts:

disestablishment—process of getting rid of established churches.

nonpreferentialism—okay for government to support religion as long as doesn’t prefer one sect over another; must do so equally, proportionally. Nonpreferentialism is the idea behind the General Assessment (VA)—everyone pays religion tax—you choose where it goes. Madison defeated this proposal. Note—nonpreferentialism never accepted by SCt—just idea pushed by some in political circles.

general assessment—this was the proposed solution by those favoring Establishment—everyone pays and you designate where your money goes. Atheist could choose school fund.

formal neutrality (Kurland)—government should ignore religion.

substantive neutrality (Laycock)—government should neither encourage nor discourage religious practices—goal should be to minimize gov’t influence on religious practies.

I. Debate over meaning of religion clauses includes very large element of history

A. Religious persecution and civil war in early modern Europe and colonial period

1. Justice Black describes as religions persecuting each other, and certainly religious leaders were guilty.

2. But essential to understand that it was the state that had the power to persecute, and the state often acted for its own reasons. Central lesson may be not that religions persecuted, but that people suffered for their religion.

B. Major debates over church-state relations in Revolutionary period

1. Enlightenment and Great Awakening provided secular and religious reasons to reconsider church-state relations; Revolution and constitution-making provided opportunity.

2. New England: local option establishment; exemptions for dissenters failed to solve problems of Baptists and Quakers.

3. Virginia: general assessment defeated by coalition of Madison, religious minorities, and tax resistance. Similar result in Maryland.

4. Pattern is failed attempts to save establishment by making it nonpreferential (neutral between religious denominations).

C. Little recorded debate over First Amendment. We do know that nonpreferential drafts were rejected.

D. Nonfinancial support of religion: government endorsed generic Protestantism (e.g. blasphemy laws, Sunday closing laws, Thanksgiving Day proclamations, sending missionaries to the Native Americans, schools in the territories).

II. Debate over proper uses of history

A. History surely relevant. But no magic answers, and isolated quotes don’t help much.

B. Founders treatment of financial and non-financial aid yields inconsistent inferences; changed circumstances arguably matter; we cannot escape burden of choice.

III. Competing claims of a unifying principle

A. formal neutrality v. substantive neutrality—Formal neutrality (Kurland) says that gov’t should ignore religion—can treat religion same as other secular entities, while substantive neutrality (Laycock) says gov’t shouldn’t change incentives about religious choices. Formal neutrality allows religion to get shafted by regulation, substantive neutrality dictates exemptions for religious practices under religion. Both views would allow financial aid to go to religious schools.

B. Nonpreferentialism v. noncoercion—nonpreferentialism said okay to support religion if you support all equally, proportionally; noncoercion—gov’t can encourage as long as it doesn’t coerce. O’Connor—noncoercion seen in her view on no gov’t endorsement. Neither nonpreferentialism nor noncoercion concepts accepts the idea of gov’t neutrality to religion—both want gov’t to encourage religion—this is a different understanding of the Establishment clause and Founder’s ideas.

C. Religion always loses vs. religion always wins

Steven’s view is that religion should always lose—no exemptions, no funding. Laycock’s view (substantive neutrality) is the opposite—funding and exemptions.

Day 35: Government Sponsorship of Religious Conduct (Wed. 4/10)

Key cases:

Lee v. Weisman (1992)—state’s involvement in prayer at high school graduation violated the Establishment clause. Court noted although graduation may only be voluntary in the strictest sense, that there was some coercion in requiring people to participate in the school-organized prayer.

Good News (2001)—School board policy allowed for public use of school facilities, except for religious activities. School created a limited public forum. Court—viewpoint discrimination—violates free speech clause. School worried with Establishment clause—Court says not an issue b/c club meetings were after school hours, permission slips from students. School was also open to other clubs. Court—you’re not treating religion neutral.

Key concepts:

coercion—gov’t shouldn’t coerce people to participate in religious worship

endorsement—gov’t should not endorse a fundamental view on religion

neutrality—idea that religion should not be treated worse than comparable secular

I. More relevant history

A. Some evidence that noncoercive endorsements of religion were viewed as establishments, if the endorsement was controversial. Va. Episcopal Incorporation Act and SC Constitution of 1778.

B. History of school prayer. Protestant Bible in nineteenth centry—reading King James Bible without note or comment—led to mob violence and church burnings, state constitutional amendments, failed Blaine Amendment.

II. School-sponsored prayer establishes religion

A. Court notes coercive effect on children of religious minorities. But coercion not required in Engel and Schempp (cases declaring school sponsored prayer violated Est. clause). Essence of violation is government sponsorship or endorsement.

B. Government sponsored religious observance is watered down or misrepresented as secular. “Nonsectarian” prayer repeats the strategy of the Protestant Bible controversy.

Note—we don’t really agree how to pray. e.g. Pray to God? Pray to JC? Another problem—we don’t all agree to pray—battle today between nonbelievers and believers.

C. Does exclusion of religion establish secular humanism?

1. Doesn’t teach the faith tenets of secular humanism.

2. But official silence about religion may be taken as indicating its unimportance or irrelevance. (This argument used by religious community).

D. Lee v. Weisman has four votes for Schempp and one vote for the view that graduation prayer is unconstitutional because it is coercive.

1. Coercion and endorsement are sensibly viewed as competing alternatives.

2. Endorsement makes sense as applied to government communications. Makes little sense as applied to government regulation, exemption, spending

3. Scalia views coercion as criminal penalties; Kennedy extends it to include proselytizing.

Santa Fe ISD—school prayer at football games unconstitutional. Majority vote to choose a person to pray—school can’t argue this is free speech when limited to one person.

Note—5th Cir. has upheld senior class vote to have prayer at graduation.

Note—11th Cir has upheld a student election for a message at graduation. Difference with Santa Fe—elections weren’t all going the same way and some speakers didn’t use the time for prayer.

III. Private prayer on school grounds

Congress passed Equal Access Act—if school lets other non-curriculum based clubs meet on school property, cannot exclude religious clubs.

A. Voluntary student prayer clubs

1. They benefit from the use of school facilities and access to potential recruits.

2. But excluding them discriminates against religious speech.

B. Moments of silence. May be constitutional, but very hard to implement. Purely private thought is the ultimate open forum, but class is captive audience for teacher’s introduction, which is very hard to do neutrally. Note—Court has struck down moment of silence laws that were drafted ostensibly to allow prayer in the classroom (see Wallace v. Jaffree—Alabama statute). Court has also struck down law requiring posting of Ten Commandments in the classroom (see Stone v. Graham—Kentucky statute)

Day 36: Public Religious Displays (Mon. 4/15)

Key cases:

Lynch v. Donnelly (1984)—(5-4 decision) very dishonest opinion in which CJ Burger says that Christ child is secular and a mere historical character and that the city is recognizing the origins of the holiday and that is a secular purpose. O’Connor’s concurrence sets up her endorsement test—the gov’t cannot send a message to nonbelievers that they suck. She says nativity scene just a recognition of the holiday, not an endorsement.

Pinette (1995)—KKK put cross on Ohio capitol grounds. Scalia for plurality, gov’t can’t endorse religion, but can treat neutrally private religious expression. O’Connor’s concurrence points out that if a reasonable observer would think the cross an endorsement, they would have to declare the cross an endorsement. Since area was used for many displays for private speech, cross was not a problem.

I. Gov’t sponsored religious observances: passive displays and outside schools.

A. Honest ways to write Lynch v. Donnelly (i.e.—not the way the Court wrote it).

1. Non-coercive endorsements are okay; passive displays are non-coercive. Schempp (no state sponsored school prayer) depends on coercion and Stone v. Graham (ten commandments law is unconstitutional) is overruled.

2. Non-coercive endorsements are okay outside schools. Nothing is overruled.

B. Court’s approach to Lynch v. Donnelly

1. Majority: Christ child is secular and benefit to Christianity is indirect and remote. Laycock—either the gov’t is serious and this is an establishment, or it’s not serious and they are co-opting religious symbols for their own purposes.

2. O’Connor: Even noncoercive endorsement sends message to religious minorities that they are outsiders, not full of polity. But no endorsement here!—O’Connor says this is just the city recognizing a public holiday.

3. Dissenters: crèche is religious, but religious slogans lack significant religious content.

Later in Alleghney v. ACLU (1989) Court develops what is known as the “2 Reindeer Rule.” Creche not ok b/c by itself—wholly religious. Menorah ok b/c Christmas tree was also present. This rule has been ridiculed. Okay to have religious symbols as long as you water then down with secular crap such as Santa, elves, and so on.

C. Dilemma for all nine justices

1. Government religious observance either endorses religion or it misappropriates and desacralizes sacred symbols.

2. Court gets both: Endorsement of Christianity in fact, desacralization in law.

3. Only reason for city to litigate this case is to endorse Christianity. Private crèche in public forum would serve all other purposes.

II. Religious symbols placed in public forum by private parties

A. Free speech? Viewpoint discrimination to exclude private religious displays from forum where other private displays are permitted.

B. Evasion of Establishment Clause? Those who objected claim that an unattended religious display is more attributable to government, because the private speaker is not visible.

C. Invitation of offensive symbols, like KKK cross? Unfortunately, yes. Striking that Ohio thought it better strategy in KKK case to oppose religious speech than to oppose hate speech.

III. Laycock’s proposed test: Establishment Clause forbids government to take position for or against religion in its own speech; any religious observance takes a position. Free Speech and Free Exercise Clauses protect religious speech by private citizens, including in public fora, subject to same standards applied to other high value speech.

Laycock’s practical solution—gov’t should close on Christmas, let Chamber of Commerce and other private orgs. put up signs and stuff if they want to.

Day 37: Public Money and Religious Neutrality (Tues. 4/16)

Key cases:

Mueller v. Allen (1983)—Minn. law gave tax deduction for education expenses for elementary and secondary schoolchildren. 5-4, Court upheld this b/c purpose was secular and also relied on the fact that the deduction was available to all parents—those with kids in public or private schools. Private choices made by parents are not violation of establishment clause. Mueller is all about neutrality. Dissent—this isn’t neutral b/c the deduction for tuition can really only be used by parents sending brats to private schools and public school parents don’t pay tuition. Deduction for books and transportation were de minimis.

Rosenberger (1995)—(5-4) religious publication at UVA is entitled to funding b/c all other school publications get funding. Court also notes that money goes to printer, but this probably doesn’t matter in order for the decision to come out this way. Any benefit to religion was incidental to the policy of paying for student publications.

Mitchell v. Helms (2000)—Thomas’s plurality opinion suggests that gov’t money given to religious or areligious groups should not automatically be considered unconstitutional b/c gov’t is not responsible for indoctrination. Upheld statute allowing state ed. Agencies to give $ to nonpublic schools for books, libraries, computers.

Agostini (1997) Overruled Aguilar (which held that public school teachers (for remedial ed.) in parochial schools unconstitutional). O’Connor—can’t presume that b/c public employee is on parochial school property that there is gov’t indoctrination or symbolic union of gov’t and religion. Not all gov’t aid that helps religious schools is invalid.

Key concepts:

nondiscrimination theory—it’s okay to fund religious orgs. or schools as long as you do so in a way that doesn’t discriminate

no aid theory—idea that any $ given to religious orgs. or schools violates establishment clause

substantive neutrality—see Day 34 and Day 39—Chart

secular value for gov’t money—it’s okay for gov’t to give $ to religious schools b/c there is a secular purpose—educating children; this argument the same for soup kitchens, drug rehab and other charitable services run by religious organizations

I. Common premise that government must be neutral as between religion and non-religion

A. No-aid theory—baseline of the gov’t doing nothing is neutral; as compared to that, all funds are aid.

B. nondiscrimination theory—baseline of how gov’t treats similar activity by secular organization is neutral; gov’t should give equal support to the activity whether performed by a religious or a secular organization.

C. Neither nonpreferentialism nor endorsement/coercion debates help much here (in the area of funding).

D. Substantive neutrality attempts to draw a baseline by looking to incentive effects. Gov’t should minimize its influence on religion. (Laycock’s theory).

II. Court has oscillated between these baselines for fifty years, generating much confusion.

A. Compare uses of neutrality in majority and dissent in Mueller.

B. Child benefit theory shifted toward nondiscrimination theory if money is routed through schools.

C. Tracing theory (money to school is okay if traceable to safely secular function) tried to have it both ways and generated famous conundrums under Lemon, e.g. books ok, but not maps. Sen. Moyinahan—What about an atlas?

D. Little bit theory—why are tax deductions ok but tax credits bad? Why does it matter in Agostini that program does not displace spending by religious schools?

E. Compartmentalization—free speech cases got nondiscrimination rule; finance cases often got no-aid rule.

F. Rosenberger squarely presented choice between two big picture understandings of neutrality. Is neutrality giving money to all student publications? Or is neutrality with regards to religion mean not giving $ to religious publications? Court goes with former.

III. Same baseline disagreements extend to voucher plans and general funding of religious schools

A. Distinction between public and private schools is not religious; gov’t is not constitutionally required to fund private schools.

B. If gov’t funds private schools, can it discriminate against religious schools? Opponents of aid say it must discriminate against religion.

C. Note much larger secular benefit in schools as compared to Rosenberger. But religious schools are much larger portion of the category.

D. Funding religious social services rarely challenged until recently. Now Bush proposals for faith-based programs makes it a hot issue.

Day 38: Regulatory Exemptions (Wed. 4/17)

Key Cases:

Yoder—Amish didn’t want kids to go to 11th and 12th grades. Notice question is not general—does Wisconsin have a compelling interest in education for kids? But specific—does Wisconsin have an interest in making sure these kids go to the last two years of high school? No—there is no compelling interest. This application of the compelling interest test provided a high level of protection for religious liberty.

Smith—sacramental use of peyote can be prohibited b/c it’s a neutral and generally applicable law. This case went to the Court on ? of whether there was a compelling interest, Court abandoned this test. If it’s neutral and generally applicable law or regulation, too bad about the Free Exercise clause. Scalia is super worried about court’s balancing in this area—his solution—free exercise clause means nothing. Scalia’s view is it’s better for some minority religious practices to be suppressed than to have judges balancing. Counter-agument—you’re a judge—judicial review—see Marbury.

Key concepts:

conscientious objection—someone who is opposed to fighting in a war due to religious or philosophical reasons. Usually given exemptions. During period of draft, Courts stretched to include both philosophical and religious objectors, though statute covered only religious.

exemptions—a carve out—so that the law applies to everyone but those exempted

generally applicable laws—laws that apply to everyone the same way. E.g. Drug laws as in Smith—no one can do drugs. Too bad if your religion requires peyote use.

I. Scope of conscientious objection claims, conceptually and pre-Smith

A. Much less publicity, because it affects only a few. But this is the essence of religious liberty.

B. Any refusal on ground of religious practice to comply with government demands or requirements. Individual beliefs and not just denominational beliefs.

C. Any form of penalty for refusal to comply. Cf. Scherbert (Court held it was a violation of free exercise for Seventh Day Adventist to be denied unemployment compensation for refusing to work on Saturday) with Braunfeld (Court rejected free exercise claim of Orthodox Jews to Sunday closing law—they were closed on Saturday b/c of their own religious practice; Court refuses to recognize that our calendar is not neutral).

D. Not enthusiastically enforced, especially in 80s. Especially compare US v. Lee (no exemption for Amish from paying Social Security taxes) and Bob Jones (no tax exemption for rel. school that discriminates on basis of race) to Yoder (give the Amish an exemption for high school compulsory attendance law). Broad or narrow formulation of government interest determines result.

E. Incentive to false claims might explain these cases. But Court talks about that only in Gillette.

II. Repudiation of right to exemptions—Employment Division v. Smith

A. Criminalizing a worship service presents no issue under Free Exercise clause. Distorts precedents and makes no serious arguments as to text.

B. Original understanding was that exemptions were granted where feasible. Argument about that because judicial review being invented at same time, little regulation, and religious homogeneity.

C. Key for Scalia is hostility to balancing of any form, whether compelling interest or deferential. Substitutes categorical rule: neutral and generally applicable laws need not exempt religion.

1. He rightly says centrality cannot be threshold requirement for protection.

2. His hostility to balancing makes it impossible for centrality to be factor in balancing religious interest against claim of compelling government interest.

Note—Scalia’s view turns religious practice into an equality right—you have a right to something in as much as others have that same right—but no large secular groups want to take kids out of school after 10th grade, or want to smoke peyote. Right becomes meaningless.

D. Reduces substantive right of free exercise of religion to equality right not to be discriminated against.

1. Are religious objectors similarly situated to others who would violate the law?

2. Cf. Free speech exemptions from laws neutral as between speech and conduct: Espionage Act, disclosure cases, Murdock and Follett, Hustler v. Falwell, Cantwell

E. Court’s conception of belief and practice; cf. Oliver Cromwell

-Scalia’s view in Smith decision is that you have right to believe, but as far as worship—subject to regulation. This is a cutback of free exercise.

F. Court’s conception of religion: wrongly assuming that there are no more martyrs

G. Burdens on religious minorities are “unavoidable consequence of democratic government”

Day 39: Free Exercise Litigation After Smith (Mon. 4/22)

Key cases:

Lukumi (1993)—Hileah’s ordinance targeted religious sacrifices of Santeria religion. Court strikes this down under Smith rule b/c not neutral, not generally applicable. Not neutral b/c targeted at particular religion. Not generally applicable b/c you’ve exempted out all other reasons to kill animals but their sacrifices.

Newark (3rd Cir. 1999)—police officer who was Muslim wanted to wear beard for religious purposes. There was a secular exemption for medical reason and it undermined the reason for the policy—uniform appearance. This was enough for the regulation to be Court—have to provide an exemption for religious reason.

Thomas (9th Cir. )—Housing regulation in Alaska & Anchorage prohibited discrimination in rental housing based on marital status. Landlord objected to having to rent to unmarried couples as fornication was against his religious beliefs. Court rejected underinclusiveness argument—In Lukumi, only practice not included was that of Santeria, here all landlords are included in the regulation—so it’s generally applicable to landlords. Interpretation of Lukumi is different. Cert. denied in Thomas and Newark even though they have radically different interpretation of generally applicable.

Key concepts:

general applicability—a law that applies to everyone in the same way

secular-exception test—if you have a secular exception, you must allow a religious exception—can’t treat religious reason worse than secular reason (formal neutrality)

singling-out test—if the law is passed to single out a particular group, it doesn’t pass constitutionality. Note that this is true whether the group was singled out to be favored (Kiryas Joel) or disfavored (Lukumi).

bad-motive test—if the law was passed to harm a particular religious group, it should be struck down (2 votes for this in Lukumi)

substantive neutrality—see Day 34

formal neutrality—under this scheme, treat all people the same. Rogoff smokes peyote—he goes to jail. Native American smokes peyote for religion—he goes to jail. (anti-religion). Gov’t gives $ to all schools (pro-religion).

hybrid rights—free exercise plus some other right. Indicates that the other right is doing all of the work. Few of these cases out there. Parental rights even Scalia recognizes—though not written down in the Constitution.

Regulatory Exemptions (see handout 39)

Generally Required Never Required

|Baseline of: |Baseline of: |

|Government do nothing |Religion loses |

|(historic position of ACLU) |(a few strict separationists) |

|Souter |Stevens |

|Baseline of: |Baseline of: |

|Minimize government incentives to change religious behavior |Treat religion like comparable secular activity (Formal |

|(Substantive neutrality—Laycock) |neutrality—Kurland) |

|Maybe O’Connor |Scalia, Rehnquist, Kennedy |

Top 2 boxes (reading across)—Financial Aid—Generally forbidden

Bottom 2 boxes—Financial Aid—Generally permitted (encouraged? reguired?)

I. Formal and substantive neutrality diagram

II. Smith purports to distinguish rather than overrule Sherbert, Yoder, and similar cases

A. Sherbert and unemployment compensation cases survive as cases where government made individualized secular exceptions. Refusing religious exceptions was therefore discrimination against religion.

B. Cantwell and Yoder survive as hybrid rights cases: free exercise plus free speech, or free exercise plus parental rights (an enumerated right from Scalia!)

1. If the claimant has to have a winning claim under the secular right, free exercise adds nothing. If some other right need merely be implicated, the exception swallows the rule.

2. Free speech hybrid may be a way of saying that religious speech is high value speech.

C. Also exception for religious belief and profession, which can cover internal church disputes and suits or prosecutions for teaching false religious doctrine.

III. The requirements of neutrality and general applicability—the critical issue.

A. Targeting a religion by name. Rare.

B. Singling out religious practice. Facts of Lukumi. Court searches whole body of relevant law.

C. Intentional discrimination; bad motive. 2 votes for this in Lukumi. Lukumi is based on objective differences in treatment, not on bad motive.

D. Secular exceptions without religious exceptions. Rader (Nebraska dorm case—where there were secular exceptions for about 1/3 of the freshman class—have to also have an exception for student wanting to live in private religious dorm).

E. What if there were only one or a few exceptions. Cf. Newark with Thomas.

1. Excepting the squeaky wheels deprives religious interests of the political protection that Smith provides.

2. State cannot place less value on a constitutional right than it places on the most-favored interest that is not constitutionally protected. Cannot decide that some killings are necessary but that religious killings aren’t.

3. Smith says that individualized exceptions require religious exceptions. Lukumi applies that to categorical exceptions.

IV. Compelling interest must justify the discrimination; discrimination is nearly always fatal to the claim of compelling interest

Day 40: Religious Freedom Restoration Acts (Tues. 4/23)

Key case:

Boerne v. Flores—Court declared RFRA unconstitutional—improper use of Congress’s power under §5, 14th Am. Congress enacted RFRA to restore the pre-Smith compelling interest test where regulations put burdens on religious practice. Court—no record of discrimination in this area. Congress can’t say what the law is on this, we do.

Key concepts:

RFRA—Religious Freedom Restoration Act—passed with overwhelming bipartisan support in Congress—designed to restore the pre-Smith level of constitutional protection for religious free exercise—compelling interest standard.

enforcement power (aka § 5)—Congressional power under 14th Am. to combat discrimination, this power used to pass RFRA

motive vs. effects—some argue that bad motive will invalidate a law against a particular religious group, others argue that effects that burden religious practice are invalid

proportionality and congruence—idea that Congress should act to remedy discrimination in proportion to the problem and that it should go no further than the constitution permits.

state RFRAs—post-Boerne 11 states have passed state RFRAs to implement compelling interest test (pre-Smith) for burdens on religious liberty.

Religious Land Use and Institutionalized Persons Act—after RFRA struck down in Boerne, Congress passed this law to protect churches discriminated against in zoning and also to protect religious liberty of prisoners.

I. Congressional Response to Smith

A. Left to right, religious and civil liberties coalition to enact statutory right to free exercise

B. If government substantially burdens a person’s exercise of religion, government must show that application of the burden to the person furthers compelling interest by least restrictive means

II. Challenge to its constitutionality—the enforcement power

A. Is enforcement power mere power to enforce the judicial interpretation of the Amendments, or is it power to do what Congress thinks necessary to make the amendments effective?

B. Long history of enforcement legislation that goes beyond judicial interpretation

1. Civil Rights Act of 1866 bars “badges and incidents” of slavery, not just slavery itself

2. Prohibition acts barred non-intoxicating beverages and beer for medical purposes

3. RFRA, Title VII, and Voting Rights Act all require state to justify burdensome effects in contexts where Court would not shift burden without proof of bad motive or discriminatory classification

4. Oregon v. Mitchell struck down act changing voting age to 18, relying on express constitutional allocation to states of power to set voting qualifications, and on view that citizens aged 18-21 were in no way a suspect class or victims of discrimination

Laycock—if you have to have a detailed legislative history of discrimination in a particular area—the enforcement power under §5 is gone—never going to have a record of discrimination as with the Voting Rights Act.

C. Original understanding: Congress wanted multiple means of enforcement; feared the Court that had decided Dred Scott; also feared Southern takeover of Congress

III. Boerne: Radical reinterpretation, clarification of implicit limits, or decision good for this statute only?

A. Enforcement power is limited to remedies not substance. This was the view of prior dissents.

B. Remedies can go beyond constitutional violations if they are proportionate and congruent. No antecedent.

C. Reasoning invalidates RFRA as applied to states; remains in effect as applied to federal law. 11 State RFRAs; 14 states with free exercise decisions inconsistent with Smith.

Even though these laws passed to protect free exercise—mixed results. Courts are finding no burden. TX judge found that under Smith, no burden! Whole purpose of TX RFRA was to get rid of RFRA! Ahhh! Boca Raton case—remove religious markers from cemetery—court said—no burden on religious practice.

In Re Young (8th Cir. 1998) Young’s filed bankruptcy and Trustee sought to take back money they tithed to church while bankrupt. RFRA still constitutional as applied to federal gov’t. Bankruptcy Code only allows burden on debtor’s exercise of religion won’t be allowed unless it satisfies a compelling gov’t interest. Because the burden could not be justified by a compelling gov’t interest, trustee not entitled to recover $ tithed.

IV. Religious Land Use and Institutionalized Persons Act—triggered by federal spending, effect on commerce, individualized assessment (nearly all church zoning), or treating religious assemblies less favorably than secular assemblies. Congress had evidence of discrimination in zoning—Orthodox Jews especially. Constitutional challenges are pending, including one involving Hyde Park Baptist Church—a large congregation that has overgrown it’s small neighborhood location. Challenges won’t go down all in one case—has too many provisions, will have to be challenged piece by piece.

Day 41: Legislative Exemptions (Wed. 4/24)

Key cases:

Amos (1987)—issue was whether the exemption to Title 7 (i.e. can’t sue Catholic church for refusing to hire women as priests) for religious organizations violated the establishment clause. Court held no violation b/c there was permissible purpose alleviate gov’t interference with practices of religion.

Texas Monthly (1989)—Court held unconstitutional a statute that exempted religious publications from sales tax. Court relied on the fact that the religious were benefited at the expense of the non-religious (larger share of sales tax). Laycock points out that there was nothing that indicates this rationale was right. Court also points out that here, the gov’t has chosen only to advance religious interest—no similar exemption for similar secular publications—this advancement is not permitted under Establishment clause.

Court opinion unclear about whether the exemption relieve a burden AND?/OR? that the exemption not significantly burden others. Laycock points out that this decision is right under speech—viewpoint discrimination.

Key concepts:

accommodation—judicial and legislative practice to accommodate religious practices

distinguishing accommodation from support—accommodation is lifting burdens placed on religious practice from regulation, supporting religion involves giving $.

formal and substantive neutrality—see Day 34.

I. Are exemptions establishments? (Note that this question is relevant whether the exemption are created by courts or by legislature)

A. This is the flip side of the baseline question. If the baseline is the government doing nothing, and regulation is a burden, then not regulating is neutral. Government doesn’t establish religion by leaving it alone.

B. But if the baseline is generally applicable regulation, and regulation is not a constitutionally relevant burden, then it becomes more plausible to argue that not regulating is an establishment. Religious liberty requires government to regulate religion to the same extent it regulates analogous secular activities.

C. Amos is unanimous that exemptions are not establishment, but Smith moved the baseline.

D. Smith and Kiryas Joel both say (in dictum) that legislative exemptions are still permitted. Kiryas Joel—NY law created special school district for Hassidic Jews—held unconstitutional—can’t single out a specific religious group for special treatment, but still can accommodate religious to relieve special burdens.

E. Texas Monthly requires that the exemption relieve a burden and/or that it not significantly burden others. Thornton v. Calder (held Conn. statute unconstitutional that said no one had to work on the day they observed Sabbath) also involved shifting burden to others.

II. Broader arguments

A. Steve Pepper: widely held conscientious belief is protected by political process; judicial protection for minority conscientious belief via exemptions is equalizing, not preferential. Cf. calendar cases (where the court failed to recognize that our calendar is not neutral as far as religion).

-Laycock pointed out that religious groups need the secular civil rights community in order to get legislation passed, as with RFRA.

B. Kurland’s formal neutrality: no classification on the basis of religion would forbid exemptions.

C. Laycock’s substantive neutrality: maximize religious liberty by minimizing government encouragement or discouragement of religious belief, disbelief, practice, or nonpractice. If you are going to protect those that answer the question “Is there a God” with a yes, you must protect those who say no. If Atheism isn’t also protected, then the gov’t could establish atheism (as in USSR) and surely this isn’t a right reading of First Am.

D. Increasing concern over discrimination against non-theistic conscientious objectors. Judges treat it as a reason to deny exemptions to theists, rather than to define religion more inclusively. Laycock—this is disturbing.

III. Distinguish three kinds of fact patterns

A. Exemption does not transfer cost to anyone—driver’s license photo case (not in book). Native American religion—it steals one’s soul to have a photo taken. No cost of an exemption is transferred to anyone else.

B. Exemption transfers cost to society—unemployment compensation cases as dissenters view them. By allowing these Amish to opt-out of the unemployment compensation system—other workers have to pay more into the system.

C. Exemption transfers cost to individual who does not share objector’s belief—Thornton. People who weren’t in Thornton’s religion (Seventh Day Adventist) would have to work on Saturday to cover his shift.

D. Baseline for attributing costs: Court assumes that laws are neutral and that minorities create costs. Coase Theorem teaches that costs arise from conflict between minority and majority.

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