[Raquel Muñiz]

Following. I would love to hear what others are doing. I am currently debating how to best approach it. So far, I have discussed Lemon in class but have left it only as an optional reading. I require that the students read Bremerton, and we discuss it in general and in relation to Lemon.

[Nate Walker]

Hi Michael, Thanks for that thoughtful question. Here’s a summary of the tests I use in my First Amendment classes. I frame the Free Exercise and No Establishment clauses as two constitutional principles for the one right commonly/politically known as religious freedom. In this context, I show how judicial tests gain different prominence with different configurations of the Courts. Said another way, I use the history of law to teach about judicial interpretations so students can evaluate trends and weigh their applicability. Here’s a summary of some of the tests I share with my students, if helpful. Cheers, Nate

The Religion Clauses of the First Amendment to the United States Constitution, ratified by the states in 1791, declare that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Establishment and Free Exercise clauses of the First Amendment are referred to as the “religion clauses,” which are distinct from the No Religious Test for Office clause of the original constitution, written in 1787.

The Incorporation of Religion Clauses to the States through the Fourteenth Amendment. The U.S. Supreme Court applied the First Amendment’s religion clauses to all states in two landmark decisions in 1940 and 1947. The incorporation of federal and state laws was made possible by the Fourteenth Amendment, which proclaims that “No state shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These are considered the Due Process and Equal Protection clauses of the Fourteenth Amendment.

The Sherbert Standard is a three-part judicial test that courts use to apply the strict scrutiny standard to Free Exercise cases. Judges first turn to the plaintiffs to determine whether (1) their constitutional right to free exercise of religion was substantially burdened, regardless of whether that burden is incidental or fundamental, indirect or direct. If so, the Court turns to the state to examine whether lawmakers had a (2) compelling government interest to justify the burden and then examines whether the legislature (3) narrowly tailored the law to achieve that interest through the least restrictive means possible. This study refers to this three-part test as the Sherbert standard because of the U.S. Supreme Court’s application of these steps in the landmark case Sherbert v. Verner (1963).

The Yoder Exemption originated from the landmark case Yoder v. Wisconsin (1972), in which the U.S. Supreme Court applied the first two steps of the Sherbert test. The court held that (1) Wisconsin’s compulsory education law “unduly burdened” the free exercise of religion of Amish and Mennonite families and threatened their way of life; and (2) the state’s interest in school attendance until the age of sixteen was not compelling, given the vocational and peaceful nature of the religions and the families’ willingness to enroll their children in all but two of the required years—implying the Court’s recognition of a least restrictive alternative. Having failed the second question of the Sherbert test, the Court did not explicitly determine whether the state narrowly tailored the law. Yoder reaffirmed the application of the Sherbert test, which is why “the period from 1963 to 1990 is often labeled the Sherbert/Yoder era of Free Exercise Clause law.”* This ended with the controversial Smith decision.

The Smith Standard, also called the general applicability test, requires that government regulations must be “neutral and generally applicable” and cannot “target religious conduct for distinctive treatment.” This study refers to this Establishment Clause test as the Smith standard because of its prominent use in the highly disputed case, Employment Division v. Smith (1990), in which the Court held that Native Americans who used peyote for sacramental purposes could not receive an exemption from general laws banning the use of narcotics. The Smith court limited the previously uncontroversial Sherbert standard to laws that are not neutral and generally applicable.

The Lemon Test is another judicial standard the Court used from 1972 until Kennedy v. Bremerton (2002) to determine a violation of the Establishment Clause. Its three prongs—purpose, primary effect, and entanglement—would validate the constitutionality of a law if it had a secular purpose; its primary effect was neither to advance nor inhibit religion; and it did not foster an excessive entanglement between government and religious institutions. A variation of the primary eect prong is the Endorsement Test that prevents the government from “convey[ing] a message that religion or a particular religious belief is favored or preferred.”

A related legal development is the Religious Animosity Principle. If a government official or a law shows contempt toward religion, singling out religion for negative treatment, then the state violates the First Amendment. In Church of Lukumi Babalu Aye v. City of Hialeah (1993), the Court unanimously held that “A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases. It follows from what we have already said that these ordinances cannot withstand this scrutiny.” Lukumi illustrates how the Free Exercise standard of strict scrutiny (Sherbert 1963) is interconnected with the guarantee of No Establishment of religion under the neutral and general applicability standard (Smith 1990) and the primary effect prong of the Lemon test (1971). The religious animosity principle can be applied across causes of action: judges can apply it in cases filed under the No Establishment and Free Exercise clauses of the First Amendment, or under a federal or state religious freedom protection act, or the federal Religious Land Use and Institutional Persons Act. On February 14, 2018, the Fourth Circuit Court of Appeals— the most conservative circuit court in the country—ruled that President Trump’s third proposed travel ban was unconstitutional because of his well-documented religious animosity toward Muslims (IRAP v. Trump, 2018; see also the Ninth Circuit court’s unanimous rejection of the ban in Hawaii v. Trump (2017). On June 4, 2018, the U.S. Supreme Court found that one member of the Colorado Civil Rights Commission showed elements of a clear and impermissible hostility toward the sincere religious beliefs of a white evangelical Christian cake-baker who objected to creating a wedding cake for a same-sex couple (Masterpiece, 2018). Sixteen days later, the U.S. Supreme Court did not apply the religious animosity principle and overturned the Fourth Circuit Court’s decision. The Court held that President Trump’s travel ban was neutral on its face, addressing a national security matter within the core of executive responsivity (Trump v. Hawaii, 2018).

Overall, I discuss these trends in judicial standards and their inconsistent applicability with research that shows that religious minorities have high rates of filing legal cases with a low number of victories, as compared to Protestant Christians who have a low number of court cases with a high number of cases ruling in their favor (Wybraniec & Finke, 2004).

Discussion Post Citations:

Nathan C. Walker, The First Amendment and State Bans on Teachers’ Religious Garb. New York: Routledge, xx-xxi (2019).

Nathan C. Walker, “Political Contempt and Religion” in Paul Djupe, ed., The Oxford Encyclopedia of Politics and Religion. New York: Oxford University Press, 2019.

Additional Citations:

* Eugene Volokh, “Some Background on Religious Exemption Law,” The Volokh Conspiracy. June 12, 2010.

Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 US 573 (1989) (opinion of O’Connor, J.) (quoting Wallace [1985] [O’Connor, J., concurring in judgment]).

Cantwell v. Connecticut, 310 U.S. 296 (1940)

Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)

Employment Division v. Smith, 494 U.S. 872 (1990)

Everson v. Board of Education, 330 U.S. 1 (1947)

Hawaii v. Trump, No. 17–15589 (9th Cir., 2017).

International Refugee Assistance Project v. Trump, 883 F.3d 233 (4th Cir., 2018), see Brief Amici Curiae of IRAP, et al. filed, March 30, 2018 (No. 17-965).

Kennedy v. Bremerton School District, 597 U.S. ___ (2022)

Lemon v. Kurtzman, 403 U.S. 602 (1971)

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018)

Sherbert v. Verner, 374 U.S. 398 (1963)

Trump v. Hawaii, 585 U.S. ___ (2018).

U.S. Const. art. VI §3 (1789)

U.S. Const. amend. I. (1791)

U.S. Const. amend. XIV (1868)

Wisconsin v. Yoder, 406 U.S. 205 (1972)

Wybraniec, J., & Finke, R.. “Religious Regulation and the Courts: The Judiciary’s Changing Role in Protecting Minority Religions from Majoritarian Rule,” in James T. Richardson (Ed.), Regulating Religion: Case Studies from Around the Globe (pp. 535–553). New York: Kluwer Academic/Plenum Publishers, 2004.

[Michael Cohen]

Thank you, Nate! I found this historical perspective to be quite helpful—especially your point about the inconsistent application of the various judicial standards.

[Brian Rose]

Michael et al:

An admittedly less thorough and more impressionistic response than that shared by Nate, but perhaps has some value in terms of confirming trendline as to the question:

Context: I teach within a higher ed masters program where the majority of participants go into student support services.

Approach: I aim for students to be able to recognize legal issues that would influence handling of scenarios likely to arise in practice with sufficient clarity to frame the concern / question and ensure it is addressed with appropriate staff before proceeding. I do not aim for them to command the law in a manner that I would expect / require of law students (who I have also taught in the past).

In light of the above context and approach, it is my intention to continue to include discussion of cases that invoke the Lemon Test as well as Coercion test / Endorsement test and Kennedy. I’ll provide some over-arching explanation as to the evolution of the Court’s handling of Establishment Clause / Hybrid Rights cases to place all of those tests in a simple historical continuum and to note the impact of Kennedy on prior understanding of the law., but with the goal of issue recognition in the course, I think the principles that are tied up in the Lemon Test are still instructive and won’t avoid Lemon.

[Michael Cohen]

Brian,

Thanks so much for your perspective on this. I find your distinction between “issue recognition” and “command of the law” quite helpful. In my work with aspiring school leaders, my emphasis is certainly on the former.

Much appreciated!