1. The government may not intentionally prefer one religion over another, or one sect over another.
2. Example:
1. The New York legislature creates a special school district whose residents consist solely of members of a particular orthodox Jewish sect, the Satmar Hassidim.
2. The purpose and effect of the special district is to let the Satmars get public funding for a public school in their village to educate their handicapped children.
3. Held, the district violates the Establishment Clause, because it was created in a way that singled out the Satmars for a special preference not made available to other groups (and also because it amounted to a delegation of state authority to a group chosen according to a religious criterion.) [Board of Educ. of Kiryas Joel Village v. Grumet]
4. Unintended effect: But a regulation that has the incidental unintended effect of helping one religion or sect more than another, or hurting one more than another, does not generally violate the Establishment Clause.

1. General principles: In general, here are some things to look for when you analyze aid to religious schools:
1. Benefit to all students: A government program that benefits all students, at public, private non-parochial and parochial schools alike, is much more likely to pass muster than aid which goes overwhelmingly to parochial-school students;
2. Colleges: Aid to religious colleges is easier to justify than aid to high schools or, especially, elementary schools; and
3. Aid to parents: Aid given to parents in a way that permits them to choose what school to use the aid at is more likely to be sustained than aid given directly to the school.
2. Transportation: Programs by which parents may have their children transported free to religious schools are probably constitutional, as long as the transport program also covers public and private non-parochial students. [Everson v. Bd. of Ed.]
3. Textbooks: Similarly, textbooks may be loaned to parochial school students as long as loans on the same basis are made to public school and private non-parochial students. But only books that are strictly secular may be used (e.g., Bibles can’t be lent out). [Board of Ed. v. Allen]
4. Teachers: The state may send public school teachers into parochial schools, even to teach basic academic subjects, as long as what’s taught is free of: (1) religious content and (2) influence from the parochial school’s administration. [Agostini v. Felton]
5. Tax benefits: The state may give tax benefits to parents who send their children to non-public schools including parochial schools, at least if the benefit scheme is neutral on its face (i.e., applies to non-religious schools as well as religious ones). This is true even if the benefits overwhelmingly go to the parents of religious school students. [Mueller v. Allen]

1. The Free Exercise Clause of course prevents the government from unduly burdening a person’s abstract "beliefs".
2. Examples: Congress cannot ban the religion of voodooism merely because it disapproves of voodooism or thinks that voodooism is irrational.
3. But the Clause also relates to conduct.
4. Examples:
1. Handing out religious literature at state fairs, airports, door-to-door, etc.
1. Involved many groups, from the Hare Krishnas to the Jehovah's Witnesses
2. Handing out literature is OK, but the courts have looked negatively on the unlicensed solicitation of funds.
2. Wearing of robes, masks, veils, or other disguises
1. Involved the Muslim religion, and Muslim women specifically.
2. The courts have ruled unconstitutional the idea that bank robberies, thefts, and crimes at malls, jusstify crime prevention ordinances outlawing the wearing of veils, robes, or other disguises if it is done in the name of religion.
3. Exemption from military service on religious grounds: Court has never held that the free exercise clause requires the government to exempt people on these grounds.
4. Autopsies : some religions, like the Amish and others, do not condone the law enforcement practice of conducting an autopsy to determine the cause of death.
5. Refusing to pay taxes, abide by motor safety laws, carry liability insurance, etc.
1. Mainly involved Amish and other groups who won't place reflecting triangles on their buggies
2. The court has ruled there will be no exceptions.
6. Pledges of allegiance, flag-saluting, hand-over-heart, etc.
1. Schools can't require students to do this
2. Boy Scouts won a case in 1993 upholding their requirement to pledge a vow before God.
7. Christmas displays in public parks: Equal Access Law of 1984 requires that if a display is put up for one religion, then displays of all other religions must be put up.
8. Sacrifice of small animals (chickens, goats, ducks, etc.)
1. Mainly involved satanist groups or the Santeria movement (an African religion mostly confined to the Hialeah suburb of Miami).
2. The satanists haven't won much, but the Santeria practice has been protected due to the court's viewing it as a central part of their religion.
9. Live Free or Die motto - New Hampshire,put this on their license plates: The courts ruled it as a religious advertisement that crossed the line.
10. In God We Trust motto: The courts have ruled that money changes hands so quicky and is so widely circulated that the motto doesn't offend anyone as much as a specific kind of display would.
5. Non-religious objectives: Free Exercise problems most typically arise when government, acting in pursuit of non-religious objectives, either: (1) forbids or burdens conduct which happens to be required by someone’s religious belief; or conversely, (2) compels or encourages conduct which happens to be forbidden by someone’s religious beliefs.
1. Example:
1. The military prohibits any soldier from wearing a hat (other than a regular military cap) while on duty.
2. This order prevents orthodox Jewish soldiers from wearing yarmulkes, which their religion requires them to wear at all times.
3. Supreme Court held that the Jewish officer-plaintiffs had a free exercise right that was being burdened, but that this right was outweighed by the need to defer to the military’s judgment that discipline and uniformity require the ban on all non-standard headgear. [Goldman v. Weinberger])
2. Example:
1. The state awards unemployment compensation only to jobless workers who make themselves available for work Monday through Saturday.
2. This rule has a non-religious purpose (making sure that only those whose employment is truly involuntary collect).
3. But the statute strongly encourages conduct that violates the religious beliefs of some persons (e.g., Seventh Day Adventists, for whom Saturday is the Sabbath).
4. Therefore, the rule raises significant free exercise problems. (In fact, the statute was held to violate the Free Exercise Clause as applied to Seventh Day Adventists. [Sherbert v. Verner].
3. Example:
1. Polygamy (multiple marriages) & bigamy laws
2. Involves the Mormon religion, primarily, and is NOT protected
3. State governments generally have a free hand on whether to prosecute or not given the circumstances of the situation. [Reynolds v. United States]
4. Example: Use of hallucinogenic drugs, poisonous snakes, etc. at religious ceremonies
1. Mainly involves Native American religions and protestant fundamentalist branches.
2. In 1993 (in all but North Carolina), the Native Americans won their rights to use peyote, but snake handling hasn't been protected.

1. Intentional: If the interference with religion is intentional on government’s part, then the interference is subjected to the most strict scrutiny, and will virtually never survive.
2. Example:
1. The practice Santeria, a religion involving animal sacrifice.
2. The local city council, motivated by the citizenry’s dislike of this religion and of the sacrifices, outlaws all animal sacrifice (but exempts Kosher slaughter).
3. Held:
1. Free Exercise rights have been violated.
2. The council has acted with the purpose of outlawing a practice precisely because the practice is motivated by religion, so the act must be most strictly scrutinized.
3. Because there is no compelling state objective here, and because any state objective that the state is pursuing (e.g., maintenance of public health) could be achieved by less discriminatory means, the law fails this strictest scrutiny. [Church of the Lukumi Babalu Aye v. Hialeah]

Unintentional burden:

If government unintentionally burdens religion, the Free Exercise Clause is still applied.

Here, however, the government action is not per se illegal. Instead, the Court traditionally uses a somewhat less stringent form of strict scrutiny

For instance, if the government makes certain conduct a crime, and this unintentionally burdens the exercise of religion, the Court does not use strict scrutiny, and instead uses "mere rationality" review.

Coercion required:

The Free Exercise Clause only gets triggered where government in some sense "coerces" an individual to do something (or not to do something) against the dictates of his religion.

If the government takes an action that unintentionally happens to make it harder for you to practice your religion — but without coercing you into taking or not taking some action as an individual — the Free Exercise Clause does not apply.

Example:

The federal government, without intending to affect any religious practice, wants to build a road.

The effect will be to destroy Native American ritual grounds.

Held, there is no impairment of free exercise rights, because the Native American plaintiffs are not being coerced into doing or not doing anything — external reality is simply being changed in a way that makes it harder for them to practice their religion.

If government forbade the Native Americans from using existing grounds to pray on, this would be a violation, because the Native Americans would be coerced into not taking some action of their own. [Lyng v. Northwest Indian Cemetery Ass’n]

Denial of benefits:

One way the government may be found to have interfered with a person’s free exercise of religion is if the government denies the person a benefit solely because of that person’s religious beliefs or practices.

Example: A state may not forbid practicing members of the clergy from holding elective state office, because this imposes a burden on the exercise of a religious belief. [McDaniel v. Paty])

Exemptions required:

Because strict scrutiny is traditionally given even to unintentional impairments of religion, government must give an exemption to avoid such an unintentional interference with religion, if this could be done without seriously impairing some compelling governmental interest.

Example:

P is denied unemployment benefits because he refuses to work on Saturday, his religion’s holy day.

Held, the state must exempt P from the requirement of Saturday work as a condition to unemployment benefits, since an exemption will not seriously undermine any compelling governmental interest. [Sherbert v. Verner])

Criminal prohibition: A generally applicable criminal law is automatically enforceable, regardless of how much burden it causes to an individual’s religious beliefs (assuming that the government did not intend to disadvantage a particular religion when it enacted its law).

Example: A state may make it a crime to possess the drug peyote, and may enforce this rule against Native Americans who use peyote as a central part of their religious rituals. [Employment Div. v. Smith]

No serious impairment required:

Government does not have to tolerate a serious impairment of some compelling governmental goal — here, no exemption needs to be given, because strict scrutiny is satisfied.

Example: Even if a religiously-affiliated university honestly believes that its religion bars African Americans and whites from studying together, government need not tolerate interference with its compelling goal of eliminating racial discrimination, so government does not need to exempt the university from anti-discrimination laws.

Cutting back: In any event, all of free exercise law seems to be in the process of being scaled back, so the general rule that government must give an exemption where this can be done without seriously impairing a compelling governmental interest, may be on its way out.

Probably Congress must (as it does) give an exemption for military service for conscientious objectors (i.e., those who believe that all war is evil).

Selective c.o.’s: But Congress need not give an exemption to "selective" c.o.’s (i.e., those who do not believe that all war is evil, but who believe that the particular war in which they are being asked to fight is evil). [Gillette v. U.S.]

Public health: Government may have to sacrifice its interest in the health of its citizenry, if individuals’ religious dictates so require.

Competent adult:

Where the case involves a competent adult, and only that adult’s own health is at stake, government may probably not force treatment on the individual over his religious objection.

Example: A state probably can’t force a Jehovah’s Witness to accept a blood transfusion or other life-saving medical care over that person’s religious objections.

Child: However, where the patient is a child whose parents object on religious grounds, the state may probably compel the treatment.

If the case involves not only a health danger to the person asserting a religious belief, but also a health danger to others, then government probably does not have to give an exemption.

Example: Government may force vaccinations over religious objections. [Jacobson v. Mass.]

Only bona fide "religious beliefs" are protected by the Free Exercise Clause.

But "religious beliefs" are defined very broadly.

Non-theistic:

For instance, non-theistic beliefs are protected.

That is, the belief need not recognize the existence of a supreme being.

Example: Public officials cannot be forced to take an oath in which they say that they believe that God exists. [Torcaso v. Watkins]

Unorganized religions:

Similarly, unorganized or obscure religions get the same protection as the major religions.

In fact, even if a person’s religious beliefs are followed only by him, he’s still entitled to free exercise protection.

Sincerity:

A court will not sustain a free exercise claim unless it is convinced that the religious belief is "genuine" or "sincere."

The fact that the belief or practice has been observed by a religious group for a long period of time may be considered in measuring sincerity.

But the converse — absence of a long-standing practice — does not mean that the belief is insincere.)

Unreasonableness:

The court will not consider whether the belief is "true" or "reasonable," so long as it is genuine. [U.S. v. Ballard]

Example:

The practice of voodoo, including sticking pins into dolls representing one’s enemies, might be considered by most of us to be "unreasonable."

But as long as such a practice is part of a person’s genuine set of beliefs and religious practices, it will not be deprived of protection merely because most find it unreasonable.)