Freedom of Religion

Pre-Constitution

• Some came to the Americas for religious freedom, but
• 12 of the colonies used taxes for or in other ways supported a religion

Religion mentioned once in body of the Constitution

• No religious test as a qualification for office

1st Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

Establishment Clause

• Two views of this clause
  • There should be a wall of separation between church and state
    • Implies no aid to religion
  • There should be no preference for any religion
    • Implies government need not be hostile to religion
• Government is involved in religion
  • Inscription on coins
  • Pledge of Allegiance
  • Prayers in Congress
• The issue is how much involvement is OK? The test imposed by the Supreme Court:
  • Government involvement should have non-religious purpose
  • The primary effect should be to neither advance or inhibit religion
  • There should be no “excessive entanglement"
• Specific examples
  
  • Property tax exemptions for property owned by churches
  • Fire and police protection provided without cost
  • Released time in schools for education--LDS seminary
  • Religious displays on public property
    • This is a controversial issue
    • Some have suggested there is a "three plastic reindeer" test, meaning that religious
    • displays must include those of different beliefs or non-religious representations
  • Prayer in schools
    • Set prayers--prohibited
    • Period of silence--not a completely settled issue
    • Graduation prayers--not allowed in high schools
• • Religious music in schools--the Rachael Bachman experience

Free Exercise Clause

• Beliefs--no constraints by government
• Actions--may be constrained by government
  • Polygamy is an important example
    • Mormons practiced polygamy after coming to Utah in 1847
    • Morrill Act (1862)--made polygamy illegal
    • Reynolds vs. U.S. (1878)--Supreme Court case which upheld the Morrill Act
• Edmunds-Tucker Act (1887)--passed because Mormons continued to practice polygamy
  • Legally dissolved the church
  • Took church property
  • Repealed right of women to vote
• Idaho: Belief in Mormon principles use as a test to determine eligibility to vote
• Current test for government involvement: Constrain actions only if a "Compelling interest"
• Specific examples
  • Conscientious objectors
    • Must belong to a church which objects to military service or demonstrate long term belief
    • May be required to provide alternative service, such as working in a hospital
  • Use of illegal drugs such as peyote--not allowed by the courts
  • Sabbath Day
    • Working on Sabbath--employers not required to give employees Sundays off
    • Sunday closing laws--upheld by courts
  • Schooling to age 16--Amish allowed to remove their children prior to age 16
  • Saluting the flag--Jehovah's Witness children not required to participate in school