My tenth and final topic concerns the protection of religion under the Constitution. The two most important provisions, though not the only ones with regard to religion, are found in the First Amendment. It says that Congress shall make no law respecting the establishment of religion or respecting the free exercise thereof. There's also a provision in the Constitution that says there can be no religious test or oath required for holding public office. The framers saw themselves as products of the enlightenment, where reason had replaced religion is a basis for decision. Now one of the interesting things about religion of the Constitution, is there is no supreme court case that's ever tried to define. What is religion for purpose of the First Amendment and the Constitution? There are some cases involving statutes, especially the Selective Service Act, that define religion. And this is that when the draft existed, the Selective Service Act gave an exemption for conscientious objectors. The Supreme Court said well, religion is the set of beliefs that occupy a place in a person's life that religion does for a religious person. And there were lower court cases struggling with well what is religion? But the Supreme Court has never defined what is religion. The Court has said though, that in order to be protected, it has to be a sincerely held religious belief. This emerged from the case called the United States v. Ballard and it involved somebody who said that for a donation. The recipient of the money would do spiritual healing of diseases. And then the person who was collecting the money for spiritual healing got prosecuted for fraud. And the Supreme Court said, courts can't examine truth. Can't examine whether people really have the ability to just as whether it's a sincerely held religious belief. There have been some amusing lower court cases about this. There have been a couple court cases of groups that say smoking marijuana is the sacrament in their religion and it should be protected. And the courts rejected the claim that that's a sincerely held religious belief. There is a case in the valley area of Los Angeles where a woman was convicted of prostitution and she tried to argue that she was practicing an ancient Egyptian religion. Where the sacrament was given a donation to the high priestess making a donation to her church, her. The court rejected that it was a sincerely held religious belief, but it's worth noting. The Supreme Court has never defined what is religion, but the Supreme Court has said it has to be a sincerely held belief. Well, there's two provisions, as I said, in the First Amendment with regard to religion. One says that the government shall make no law respecting the establishment of religion. Long ago, Thomas Jefferson said that there should be a wall that separates church and state, a wall that's high and impregnable. Many believe that that's what the Establishment Clause is all about. The view that our government should be secular but the place for religion is the private realm. Our homes, or churches, or synagogues, or mosques. Though the justice and the quig very much disagree, that the extent to which, if at all the first amendment is meant to create a wall that separates church and state. Some justices are strict separationist and really believe in that law. Some believe that all that's required is that government is to be neutral among religions, to religion and non religion and some reject the idea of law entirely. They believe that we should accommodate religion into the government and government into religion. In 1971, in Lemon v. Kurtzman the supreme court articulated a three part test fro the establishment clause. A government action is unconstitutional if it fails any part of that test. 1st, there has to be a secular purpose for the government's answer. If the primary purpose is to advance religion, then it's unconstitutional. An example from a case from a decade ago, McCreary County Kentucky v ACLU. McCreary County had an ordinance that The Ten Commandments be posted in all public buildings. The Supreme Court in opinion by Justice David Souter said the ten commandments are inherently religious. There's no secular purpose for putting them up, and it was declared unconstitutional. 2nd, the primary effect of the government's action can be neither to advance Will inhibit religion. I think the key here and maybe the key to the entire establishment cause is that the government cannot symbolically endorses religion or a particular religion. Think I can illustrate this notion by a couple of Supreme Court cases. One is Allegheny County v. ACLU in 1989. It was two cases that came to the Supreme Court together. One involved a county courthouse where there was a large stairway display case. In it in December was put a nativity scene. The other involved the Pittsburgh City Building. In front of it in December, was placed a menorah, a Christmas tree and a proclamation of tolerance in the holiday season. The Supreme Court found that the nativity scene was unconstitutional that found that the menorah was constitutional, why? Well, it's not that the Supreme Court was favoring Jewish religious symbols over christian religious symbols. Rather than put said the nativity set all by itself on government property is impermissible symbolic endorsement of christianity. Earlier, the court said there can be nativity scenes on government property so long as they're accompanied by symbols of other symbols and by secular symbols. That's why the menorah was allowed, it's unquestionably a Jewish symbol. It was accompanied by a Christmas tree by proclamation of tolerance. My other example case here that I argued in the supreme court and lost. The case is Van Orden v. Perry and it was decided in 2005 at the Texas State Capital directly the corner between the capital building the Texas Supreme Court. There's a 6 foot high 3 foot wide Ten Commandments monument it has big letters in the I am the Lord thy God. And then it has the Protestant version of The Ten Commandments the Protestant version of The Ten Commandments. And the Protestant version of The Ten Commandments is different in the Catholic version and different than the Jewish version of The Ten Commandments. Some of the difference is quite significant theological perspective, well my client, Thomas Van Orden brought a challenge arguing that this monument violated the establishment clause. I lost five to four, Justice Breyer wrote the critical fifth opinion, and he said The Ten Commandments monument was not symbolic endorsement for religion. He said it had been there since 1961, and no one had objected until Thomas Van Orden. He said it wasn't paid for by the state of Texas, it was paid for by Cecil B. DeMille in connection with promoting the movie, The Ten Commandments. Cecil B. DeMille paid for hundreds of these monuments to go up all over the country. Justice Breyer said there's over 20 other monuments on the Texas State Capital grounds. So this doesn't violate the Constitution, there wasn't symbolic endorsement for religion or to put it another way, the primary effect was not to advance religion. And the third part of the lemon test is there cannot be excessive government entanglement with religion. I think the most important illustration here is that the government generall cannot directly pay teachers' salaries in parochial schools. If the government is going to directly pay teachers' salaries in parochial schools, they'd have to monitor, see if they're teaching secular or religious material. Any such monitoring would be excessive government entanglement in religion, so it's a three part test. First, there has to be a secular purpose for one. Second, the primary effect can neither be advance nor inhibit religion. And third, there can be no excessive government entanglement, the law feels any prompt than it violates the establishment clause. A second principle with regard to the establishment clause Is that government sponsored religious activities in public school classrooms are unconstitutional. The Supreme Court in a couple of cases in the early 1960s held that school prayer, even so-called voluntary school prayer, is unconstitutional. In Engel versus Vitali, the court considered the prayer that the New York Board of Regents had written that was to be uttered every day in school. It was a non-denominational prayer and a student was forced to say it but the Supreme Court declared it unconstitutional. The court said prayer is inherently religious the court said, it's not realistic to say to school children that they don't have the prayer or participate. And so the court said that even voluntary non-denominational prayer is unconstitutional. A year later the court followed this up with a case called Schempp v. Abington School District. This involved a school district that had each day begin with reading a verse from the Bible. Again the court said that's inherently religious we can't expect students to just not participate and excuse themselves. There's too much coercive pressure in schools, the court has been very strict about this. The court has said for example that clergy delivered prayers at public school graduations are unconstitutional that was Lee versus Weisman in 1992. The court has said that student delivered prayers at high school football games are unconstitutional. The court said that in Santa Fe Independent School District versus Doe in 2000. The court has even said that a moment of silent prayer is unconstitutional. There is a case called Wallace versus Jaffree. Alabama adopted a law that said every school should begin each day with a moment of silent prayer. The Supreme Court said that violates the establishment clause Interesting question. The supreme court has not yet ruled as to whether it would be constitutional. There were called a moment of silent reflection rather than a moment of silent prayer to persist that it's called silent prayer it's unconstitutional. Now I have to confess I've never understood why schools find it necessary to institutionalize silent prayers. Haven't students been giving silent prayers as long as teachers have been giving tests? So with regard to the Establishment Clause, I first talked about the test. Second, I talked about school sponsored religious activities. Public school classrooms are unconstitutional. Third and finally, I want to talk about government aid to parochial schools. The Supreme Court has over time taken a number of different approaches to what kind of assistance can the government give to religious schools. And the Supreme Court now has come to the conclusion the government can give assistance to parochial schools if it's the same that it's giving to public schools so long as it's actually used in religious instructions. This was the holding that emerged from Mitchell versus Helms in the year 2000. Louisiana had a policy of giving instructional equipment to all of the schools, public and private, in the state. And as to the private schools, both secular and religious schools could get this aid. The instructional kit was things like audiovisual equipment and computers. And the Supreme Court said it is permissible for the government to give this aid to parochial schools because it's being given to public schools as well and all the other schools in the state. So long it's not actually used for religious instruction. So it's fine for the school to use the computers to teach math or British literature, but it wouldn't be okay to teach catechism or bar mitzvah classes. And the Supreme Court has said that a state can provide vouchers to parents, even the vouchers can be used in parochial schools. This was Zelman versus Simmons-Harris in 2002. The State of Ohio created a voucher program for children in the Cleveland area. The parents could use the school voucher for any private school, secular or religious 96% of all of the vouchers got used in religious schools. Nonetheless, the Supreme Court upheld this as Constitutional. The Supreme Court said the government had the secular purpose of improving education for children of the Cleveland area. The court said if the money ends up in the hands of religious coffers it's because of parents' decisions, not because of government choices so this is Constitutional. So that's a quick summary of the law with regard to the Establishment Clause. It's important to note that many think, on the current Supreme Court, there might be five justices, Roberts, Scalia, Kennedy, Thomas, Alito, to relax the Establishment Clause. To allow much more government aid to religion, much more religious involvement in government activities. I said that there were two provisions in the First Amendment regarding religion. The other is the Free Exercise Clause, that the government can make no law abridging free exercise of religion. Of course, the Free Exercise Clause is not absolute. A person cannot inflict injury on others in the name of religion. The government always could regulate, prevent people from harming others. In 1990, the Supreme Court substantially changed the law of The Free Exercise Clause. Prior to 1990, the government could restrict religious if it met strict scrutiny. If its action is necessary for compelling purpose but in 1990, the court decided the case Employment Division v. Smith. Employment Division v. Smith involved an Oregon law that prohibited consumption of peyote, hallucinogenic substance. Native Americans argued that their religious rituals required the use of peyote and they said that the Oregon laws applied to them abridged free exercise of religion. The Supreme Court in opinion by Justice Scalia ruled against the Native Americans. The Supreme Court said the free exercise clause cannot be used to challenge what the court refers to as a neutral law of general applicability. A law is neutral, it was not motivated by design to interfere with religion. The laws of general applicability that applies to everyone, so what the Supreme Court said is, the free access clause cannot be used to challenge the Oregon law. Because it's neutral, in the sense that it wasn't motivated by desire to interfere with religion, and also, because it applies to everyone. It's a law of general applicability. To see how important this is, think of a county, and there are a few in the United States, that prohibits all consumption of alcohol. Imagine that a priest wants to use wine in communion, or a Jewish family wants to use wine at a Sabbath or Shabbat dinner. Prior to Employment Division v. Smith, it's clear the priest of the Jewish family would win. The government couldn't meet strict scrutiny but after Employment Division v. Smith, it's clear the priest of the Jewish family would lose. The law prohibiting consumption of alcohol is neutral. Was it motivated it's a general applicability and applies to everyone. The free exercise clause cannot be used to challenge a neutral law of general applicability no matter how much it burdens religion. Now if it can be shown that the law is not neutral, in the sense that it was motivated by design to interfere with religion. Then it would have to meet strict scrutiny or if you show the law is not of general applicability, that it targets a religion or religions. Then it would have to meet strict scrutiny but Employment Division versus Smith has now been the law for over a quarter century. It makes it much harder for someone to win a claim under the Free Access clause. In fact, Congress has now adopted two statutes to try to overcome employment division the religious Freedom Restoration Act applies only to the federal government. But it says that the federal government and its activities substantially burdens religion it's going to have to meet strict scrutiny, be necessary to achieve a compelling purpose. And in the Religious Land Use and Institutionalized Persons Act the Congress says that if a state or a local government substantially burdens religion. In its land use decisions like zoning or its treatment of institutionalized persons like prisoners it's going to have to meet strict scrutiny. But notice these are statues, statutes always more rights than the Constitution. Under the Constitution, there's relatively little protection for free exercise of religion. Supreme Court says, so long as there's a neutral law of general applicability, it can never violate the Free Exercise Clause. Though, of course, if the government is targeting religion [INAUDIBLE] faith and religion treats religion differently than others. Than it would have to meet strict scrutiny. So those are the two key provisions in the Constitution. The Establishment clause and the Free Exercise clause. They're provisions of the Constitution. They're enormously divisive on the current court and in society. It's been a pleasure to do these lectures. Thank you so much for listening and watching.
