Religion clauses: legislative prayer, religious displays, school aid, neutral laws, individualized exemptions, and religious status

Black-letter propositions

1. 01

   Legislative prayer, though religious, is compatible with the Establishment Clause because of a long history of the practice, and a town's prayer program is not invalid merely because most prayers are sectarian or because the givers are drawn from local congregations.

2. 02

   A prayer practice violates the Establishment Clause only if it coerces participants, and offense or a feeling of exclusion is not coercion, especially when the prayer is at the ceremonial opening of a meeting and citizens are not dissuaded from leaving or arriving late.

3. 03

   Courts interpret the Establishment Clause by reference to historical practices and understandings and no longer apply the Lemon test or the endorsement test.

4. 04

   An established religiously expressive monument, such as a long-standing memorial cross, is presumed constitutional, because as time passes the purposes of the monument multiply and its original purpose becomes harder to identify.

5. 05

   Under Lemon, aid programs that create excessive entanglement between government and religion, such as supplementing salaries of teachers in church-affiliated schools, were held unconstitutional, though the Court now applies the historical approach.

6. 06

   A law that incidentally burdens religion is not subject to strict scrutiny under the Free Exercise Clause if it is neutral and generally applicable, so a state may deny unemployment benefits to a person fired for sacramental use of a prohibited drug.

7. 07

   A law that is not neutral or generally applicable must be justified by a compelling governmental interest and be narrowly tailored, and a law is not generally applicable if it invites the government to consider reasons for conduct through a system of individualized exemptions.

8. 08

   Denying an unemployment benefit to a person who refused Saturday work because of her religion burdens free exercise and requires a compelling state interest, as in Sherbert v. Verner.

9. 09

   Denying an otherwise available public benefit solely because of an applicant's religious status or character violates the Free Exercise Clause, as with a state program that excluded church-owned applicants from a grant program and a tuition program that excluded sectarian schools.

10. 10

    The Free Exercise and Free Speech Clauses protect an individual's private religious observance from government reprisal, such as firing a coach for a quiet personal prayer after games.

Use this attack sequence under time

Common wrong turns

• Offense at a prayer is not coercion under the Establishment Clause.
• The Lemon test is no longer the standard, and the Court looks to historical practices and understandings.
• A neutral, generally applicable law that incidentally burdens religion does not receive strict scrutiny.
• A denial of a public benefit because of religious status faces strict scrutiny even when the benefit is not constitutionally required.

Worked example

A state program reimburses secular private schools for playground safety surfaces but excludes any applicant owned by a church. A church-run preschool applies and is denied because of its church ownership.

Practice this topic

Establishment Clause

Town of Greece v. Galloway held that a town's practice of opening monthly board meetings with a prayer by clergy chosen from local congregations does not violate the Establishment Clause, because legislative prayer has long been understood as compatible with the Clause, the prayer need not be nonsectarian, and offense does not equal coercion. Kennedy v. Bremerton School District held that the Establishment Clause is interpreted by reference to historical practices and understandings, in place of the Lemon and endorsement tests, and that a coach's quiet personal prayer was protected by the Free Exercise and Free Speech Clauses.

American Legion v. American Humanist Association held that a long-standing memorial cross does not violate the Establishment Clause and that the passage of time gives rise to a strong presumption of constitutionality for established monuments, because the original purpose becomes hard to identify and the purposes associated with the monument multiply. Lemon v. Kurtzman held that state aid to church-affiliated schools that involved excessive entanglement between government and religion was unconstitutional.

Free Exercise Clause

Employment Division v. Smith held that the Free Exercise Clause permits a state to prohibit sacramental peyote use and to deny unemployment benefits to persons discharged for it, because the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids or requires conduct if the law is not specifically directed to religious practice and is otherwise constitutional. Church of Lukumi Babalu Aye v. City of Hialeah held that a law that burdens religious practice need not meet strict scrutiny if it is neutral and generally applicable, but a law that is not neutral or not generally applicable must be justified by a compelling interest and narrowly tailored, and it struck down the city's ordinances aimed at animal sacrifice.

Fulton v. City of Philadelphia held that the city's refusal to contract with a foster care agency unless it certified same-sex couples violated the Free Exercise Clause because the policy was not generally applicable, since a law is not generally applicable if it creates a mechanism for individualized exemptions. Sherbert v. Verner held that disqualifying a claimant from unemployment benefits solely because she refused Saturday work contrary to her religious belief abridged her free exercise right.

Religious status and public benefits

Trinity Lutheran Church v. Comer held that a Missouri policy denying an otherwise available grant to an applicant because it was owned by a church violated the Free Exercise Clause, because denying a generally available benefit solely on account of religious identity penalizes free exercise. Carson v. Makin held that Maine's requirement that tuition assistance payments go only to nonsectarian schools violates the Free Exercise Clause.

Frequently asked questions