Religion - Constitutional Analysis

In Lemon, the Court articulated a three-part test for judging Establishment Clause issue: to be sustained, (1) the statute must have a secular legislative purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion; and (3) the statute must not foster an excessive government entanglement with religion

In Amos, the Court upheld Section 702 of the Civil Rights Act, which exempts religious organizations from Title VII’s prohibition against discrimination in employment on the basis of religion, as applied to a worker at a nonprofit gymnasium owned by the LDS Church. The Court concluded that the statute satisfied the Lemon test, neutral on its face, and motivated by a permissible purpose of limiting governmental interference with the exercise of religion. Thus, the Court declined to exercise strict scrutiny. Further, although the plaintiff’s freedom of choice in religious matters was impinged upon, it was the Church, not the government, that put him to the choice of changing his religious practices or losing his job.

Brennan, J., concurred in the judgment. He acknowledged that “religious organizations have an interest in autonomy in ordering their internal affairs,” but argued that “the infringement of religious liberty that results from conditioning performance of secular activity upon religious belief cannot be defended as necessary for the community’s self definition.” Nonetheless, Brennan argued that a categorical rule allowing discrimination in the area of non-profit religious activities was best, as it was necessary to avoid the “considerable ongoing government entanglement in religious affairs” and the chilling of free exercise that would result from a case-by-case analysis of religious activities. O’Connor, J., also concurred in the judgment. “Judicial deference to all legislation that purports to facilitate the free exercise of religion would completely vitiate the Establishment Clause.” In her view, “the necessary first step in evaluating an Establishment Clause challenge to a government action lifting from religious organizations a generally applicable regulatory burden is to recognize that such government action does have the effect of advancing religion. The second necessary step is to separate those benefits to religion that constitutionally accommodate the free exercise of religion from those that provide unjustifiable awards of assistance to religious organizations.” In her view, the inquiry framed by Lemon should be “whether government’s purpose is to endorse religion and whether the statute actually conveys a message of endorsement. The relevant issue is how it would be perceived by an objective observer…”

In Lee, the Court held that a public school’s practice of inviting members of the clergy to offer invocation and benediction prayers at graduation ceremonies violated the Establishment Clause. The Court found that the current situation placed objectors “in the dilemma of participating,” which would imply acceptance of the message, “or protesting.” The Court expressed concern that allowing this practice would “risk compelling conformity” in an environment where the risk of compulsion is especially high. Notably, the Court did not consider the ability to opt out of the benediction to be sufficient reason to allow it to continue; perhaps because it is more difficult to indicate that one is opting out of a benediction than, e.g., the pledge of allegiance.

In Edwards, the Court ruled unconstitutional a state law that required public schools that teach evolution to also teach creation science. The Court rejected the Act’s stated purpose –that of advancing “academic freedom” – as pretextual. “Because the primary purpose of the [Act] is to endorse a particular religious doctrine, the Act furthers religion in violation of the establishment clause.” Scalia, J., dissented, and expressed skepticism that motivation, on its own, should be enough to invalidate a provision under the establishment clause, absent a demonstrated effect. He argued that “discerning the subjective motivation of those enacting the statute is almost always an impossible task” and should be avoided.

In Epperson, the Court held that an anti-evolution statute violated both religion clauses. “Arkansas’ law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine. Citing newspaper advertisements and letters supporting the adoption of the statute, the Court found it “clear that fundamentalist sectarian conviction was and is the law’s reason for existence.” Black, J., concurred on the ground that the statue was impermissibly vague, but argued that “a state law prohibiting all teaching of human development … is constitutionally quite different from a law that compels a teacher to teach as true only one theory of a given doctrine.” “There is no reason I can imagine why a State is without power to withdraw from its curriculum any subject deemed too emotional or controversial for its public schools.”

In Sherbert, the Court held that strict scrutiny should be used in evaluating laws burdening free exercise of religion and declared unconstitutional the denial of unemployment benefits to a woman who was discharged from her job rather than work on her Saturday Sabbath. The Court concluded that the denial of benefits imposed a substantial burden on religion and effectively penalized the appellant’s exercise of a constitutionally protected liberty, because the woman had to choose between an income and her faith.

Notably, the state had a Sunday closing law, which made it impossible for the appellant to offer to work six days a week (which the unemployment commission required) without violating her faith. Two years earlier, in Braunfeld v. Brown, the Court rejected a free exercise challenge to Sunday closing laws; McGowan v. Maryland upheld the same laws against an establishment clause challenge.

In Bowen, the Court rejected the claim for a religious exemption the requirement that individuals provide Social Security numbers in order to receive welfare benefits. The challengers argued that their religion was violated by the requirement for Social Security numbers. The Court denied the claim: “Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development. … The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures.” “A policy decision by a government that it wishes to treat all applicants alike, and that it does not wish to become involved in case-by-case inquiries into the genuineness of each religious objection … is entitled to substantial deference. Moreover, legitimate interests are implicated in the need to avoid any appearance of favoring religious over nonreligious applicants.” However, if a state creates a “good cause” standard for individualized exemptions, “its refusal to extend an exemption to an instance of religious hardship suggests a discriminatory intent.”

O’Connor, J., in an opinion concurring in part and dissenting in part, noted that “the fact that the underlying dispute involves an award of benefits, rather than an exaction of penalties, does not grant the Government license to apply a different version of the Constituiton.”

In Lyng, the Court rejected a free exercise challenge to the federal government’s building a road and allowing timber harvesting in a national forest that contained sacred Indian burial grounds. The Court recognized that the construction would “virtually destroy the Indians’ ability to practice their religion” because it would irreparably damage “sacred areas which are an integral and necessary part of their belief system,” but reiterated its holding in Bowen that the Government is not required to conduct its internal affairs in ways that comport with the religious beliefs of particular citizens.” “Government simply could not operate if it were required to satisfy every citizen’s needs and desires … The First Amendment must apply to all citizens alike, and can give to none of them a veto over public programs …” Interestingly, the Court did not cite the Establishment Clause in support of this rule.

Concerning Yoder, the Court said “nothing whatsoever in the Yoder opinion … support[s] the proposition that the impact on the Amish religion would have been constitutionally problematic if the statute at issue had not been coercive in nature” but had merely involved internal government procedure.

In Employment Division v. Smith, the Court expressly changed the law of the free exercise clause, holding that rational basis review, rather that strict scrutiny, was appropriate for neutral laws that indirectly burden religion. The Court, per Scalia, J., reviewed cases where free exercise clause challenges to neutral statutes had been successful, and concluded that none involved free exercise claims alone. Rather, all involved “the Free Exercise Clause in conjunction with other constitutional protections, such as the freedom of speech and of the press, or the right of...