Tuesday, August 30, 2011

Constitutional Law: Freedom of Religion

The First Amendment covers a lot of material, and future posts will deal with freedom of speech, and freedom of association. This post will focus on freedom of religion. Your first thought when reading a fact pattern on the MBE that implicates freedom of religion should be to determine whether your analysis should be guided by The Establishment Clause, or The Free Exercise Clause.

I. The Establishment Clause:

The Establishment Clause is implicated when a government program, or governmental legislation prefers one religion, or one religious sect, over another, or when the government is providing some benefit to a religious institution but the legislation or government program contains no religious or sect preference. If the former, then traditional strict scrutiny is applied, and the program will fail unless the government can prove that the program is necessary to further a compelling government interest.

If, however, there is no religious or sect preference in the legislation or governmental program, then, rather than applying strict scrutiny, a test formulated in the case of Lemon v. Kurtzman (ie., The Lemon Test) must be applied. Under this test, the legislation or governmental program will be valid if the statute or regulation has a secular purpose, the primary effect or purpose neither advances nor inhibits religion, and the statute or regulation does not foster excessive government entanglement with religion.

Applying this test, the Court has found constitutional the government supplying textbooks to all students, including students in parochial schools (all three elements of The Lemon Test were satisfied), but found unconstitutional most religious activities in public schools, such as prayer and bible reading (prayer and bible reading advance religion, and, therefore, fail The Lemon Test).

II. The Free Exercise Clause:

The Free Exercise Clause prevents the government from punishing an individual by denying benefits or imposing burdens based on religious belief. Note that in addition to this governmental limitation, the government is also prevented from determining the reasonableness of a religious belief.

The right to freely exercise one's religion, however, is not absolute. Similar to The Establishment Clause discussed above, if the government has a compelling interest in regulating a person's conduct, even if that conduct is motivated by one's religion, that regulation will be valid. (For example, a state law outlawing polygamy has been upheld, even though the argument was made that polygamous behavior was religiously motivated.)

Strict scrutiny need not be applied, however, if the government regulation, rather than purposefully designed to interfere with religion, is instead a generally applicable government regulation which just happens to burden religious conduct. In other words, the Free Exercise Clause does not require exemptions from generally applicable government regulations, even if those regulations happen to incidentally burden religious conduct. (For example, a government regulation banning the use of a specific drug will be valid even though a group's religious belief system requires the use of that drug during religious ceremonies.)

In summary, be careful to distinguish between the free exercise of religion, and the establishment of religion, and then once you've determined which type of analysis applies, proceed by determining whether strict scrutiny, or a lesser form of scrutiny, should guide your analysis.


  1. I don't agree with the part of the lemon test that says your religion cannot be advanced or hindered.


    1. That part of the Lemon Test is correct