Free Exercise Clause - Professor Lemieux PDF

Preview

Summary

Professor Lemieux...

Description

______________________________________________________________________________

FREE EXERCISE CLAUSE Sherbert v. Verner (1963) 1. Facts: A Seventh-day Adventist in South Carolina refused to work Saturdays (Sabbath day of faith), and was fired from her job. She was unable to find new employment because of her unwillingness to work on Saturdays, and filed for unemployment benefits. She was denied the benefits under a state law because she “failed to accept suitable work when offered.” Sherbert sued on grounds of violation of Free Exercise. 2. Questions: a. Did the application of the state law violate Sherbert’s First Amendment rights of Free Exercise? YES. 3. Holding: REVERSED (Sherbert wins; denial of benefits is unconstitutional) a. The denial of unemployment benefits is a violation of Free Exercise of religion and is unconstitutional. 4. Majority: The Sherbert Test is created to determine when Free Exercise is violated. a. Part I. i. The plaintiff’s claim must involve a sincere religious belief, and the government must have burdened Free Exercise. b. Part II. The burdening of religion is only justified if the state can show: i. COMPELLING INTEREST: There is some compelling state interest that justifies the infringement on Free Exercise. ii. NARROW TAILORING: There is no other way to achieve this state interest without infringing on Free Exercise 1. I.e. imposing the burden is the only way to achieve this state interest c. Under the Sherbert Test, the withholding of unemployment benefits is a violation of Free Exercise. The state fails Prong #3 (narrow tailoring) of the Sherbert Test. The state has other ways of eliminating fraud than denying unemployment benefits for religious persons. Oregon Employment Division v. Smith (1990) 1. Facts: Two Native American counselors at a drug rehabilitation center were fired for using peyote in a religious ceremony. They filed for unemployment benefits, and were denied; they used on grounds of violation of Free Exercise. 2. Questions: a. Is the denial of unemployment benefits to individuals fired for use of illegal drugs (for religious purposes) a violation of Free Exercise? NO.

3. Holding: REVERSED (Oregon wins, denial of benefits upheld) a. The law is not a violation of Free Exercise; Oregon may deny unemployment benefits. 4. Majority: a. The majority overturns Sherbert a nd gets rid of the Sherbert Test. The new standard (Rational Basis Test) is that a neutral and generally-applicable law may restrict religion. Free Exercise cannot allow people to “become a law unto themselves” and use religion to ignore all of society’s rules. The Constitution does not require this sort of exception. However, Oregon can create an exemption for use of peyote if it wants to. Sure, religious minorities might be infringed upon, but that’s just the nature of a democratic government. 5. Concurring: a. The Sherbert Test doesn’t need to be discarded—we can use it here. The state has a compelling interest to restrict the use of illegal drugs, and there is no other way to achieve that objection other than a ban. All we need to show a compelling state interest in order to restrict religion. 6. Dissenting: a. There is no compelling state interest that may justify a restriction of religious use of peyote. Even though peyote is illegal, Oregon has not cracked down on its use, and so it clearly does not have that compelling of an interest in preventing its use in religious activities. i. Also, the Sherbert Test should be kept. City of Boerne v. Flores (1997) 1. Facts: A church congregation in the City of Boerne, Texas, outgrew its building and wanted to expand. The church was prevented from doing so by a city ordinance which prohibited the modification of historical landmarks; the church sued the city on the grounds that the ordinance violated the RFRA. 2. Questions: a. Is the RFRA constitutional when applied to state level government? NO. b. Is the Smith  precedent upheld? YES. 3. Holding: REVERSED (City of Boerne wins; church may not build/expand) a. The RFRA is struck down in its application to state governments because Congress exceeded its powers. 4. Majority: a. Congress has exceeded its constitutional powers in enacting the RFRA. Congress cannot enforce the RFRA at the state level (federal level is ok).

b. Congress cannot interpret the Constitution, it may only enforce; such enforcement is remedial and preemptive. This enforcement must be congruent and proportional to the injury. c. TL;DR—Congressional powers are defined narrowly by the Court. 5. Concurring: a. The RFRA violates the Establishment Clause and should be struck down; we don’t even have to deal with the issue of Congressional power. The RFRA gives special privileges (an exemption from neutral and generally-applicable law prohibiting alterations of historical landmarks), and is thus an advancement of religion. 6. Dissenting: a. The Smith  precedent (and it’s overturning of the Sherbert Test in exchange for the Rational Basis test) was incorrect and should be discarded. Congress is correct in upholding the Sherbert p recedent through the RFRA. Locke v. Davey (2004) 1. Facts: Joshua Davey got a state scholarship and was intending to major in theology. However, he was denied the use of the scholarship to study theology. Davey sued on grounds of violation of Free Exercise. 2. Questions: a. Is the state’s prohibition of scholarship awards going to religious degrees a violation of Free Exercise? NO. b. Is the state’s indirect funding of religious schools through the scholarship program a violation of the Establishment Clause? NO. 3. Holding: REVERSED (Davey, the Christian kid pursuing theology, loses) a. The State of Washington’s prohibition of using the scholarship for religious degrees is constitutional and upheld. 4. Majority: a. There are some areas where state action is not prohibited by the Establishment Clause, yet not required by the Free Exercise clause. There is “room for play in the joints.” The scholarship program had no animosity towards religion; it was merely attempting to avoid state entanglement, and is thus not a violation of Free Exercise. But neither is the scholarship program a violation of the Establishment Clause, since it provides funds indirectly through a genuine individual choice (student choice where to attend school). 5. Dissenting: a. The state has burdened religion. It withholds benefits from certain people (excludes them from scholarship) that want to study theology.

i.

Agrees that the scholarship program is not a violation of Establishment Clause.

Burwell v. Hobby Lobby (2014) 1. Facts: The ACA (Affordable Care Act) required corporations to provide health care plans to employees. The HHS (Health and Human Services; in charge of overseeing ACA) made a new regulation that the healthcare plans must include coverage of contraceptives. The Act created exemptions for non-profit religious corporations and employers, but did not create an exemption for for-profit religious corporations . Hobby Lobby, a religious for-profit corporation, sued on grounds of (1) violation of Free Exercise, and (2) violation of the RFRA. 2. Questions: a. Can religious for-profit corporations deny employees healthcare coverage for use of contraceptives? YES. b. Can corporations exercise religion and are protected by the RFRA? YES. c. Is the HHS regulation a violation of the RFRA? YES. 3. Holding: a. The HHS regulations are struck down because they violate the RFRA. (The Court does not address the constitutional question of whether the HHS regulations violate Free Exercise). 4. Majority: a. For-profit corporations must also be treated as individuals under the RFRA. b. The HHS regulation substantially burdens religious exercise as provided for in the RFRA. (Hobby Lobby would have to pay around $475 million per year if they refused to provide coverage for contraceptives) c. Even if the state had compelling interest, t he HHS regulation is not the least restrictive means to further those interests; the state can just “pick up the tab” and provide contraception coverage. 5. Concurring: a. Justice Kennedy responds to Justice Ginsburg’s dissent here, arguing that the slippery slope argument of infinite “picking up the tab” is not going to happen because the government will often have a compelling state interest. In this case, the provision of contraceptive coverage is one such compelling state interest. 6. Dissenting: a. For-profit corporations such as Hobby Lobby cannot exercise religion. They cannot be treated as individuals in some contexts but not in others. b. Even if RFRA applies to for-profit corporations, there is no substantial burdening of religion, and there is no other way of furthering state interest of providing

contraceptive coverage; the state cannot just “pay all the tabs” for these sorts of claims. ______________________________________________________________________________

FREE SPEECH AND RELIGIOUS FREEDOM Masterpiece Cakeshop v. Colorado Rights Commission (2018) 1. Facts: The owner (Philips) of Masterpiece Cakeshop refused to bake a cake for a gay couple. The couple sued him claiming that it was a violation of a Colorado Civil Rights law. After proceedings began, Philips sued the Civil Rights Commission on the grounds of violation of Free Exercise and Free Speech. Some cases of significance: a. Church of Lukumi Babalu Aye: b. Jack 2. Questions: a. Is the compulsion of Philips to bake a cake for the gay couple under Colorado Civil Rights laws a violation of Free Exercise? YES. b. Is compulsion a violation of Free Speech? Unaddressed. 3. Holding: a. The Colorado Civil Rights Commission unconstitutionally applied the Act by showing animus. Bakeshop wins. 4. Majority: a. The Civil Rights Commission proceedings indicate animus against religion. (A Commissioner low-key attacked Philips and said that the discrimination was “dispicable” and compared it to the Nazis.) This violates the Free Exercise clause. The issue of whether Free Speech was violated was unaddressed. T  he majority opinion also indicated that the Civil Rights Commission had acted non-neutrally towards Phillips, since the Commission had allowed three other cake shops to refuse to bake cakes from a troll (William Jack), who went around asking cakeshops to bake various cakes with offensive messages on them. 5. Concurring (two separate major concurrences): a. (1) The Jack and Phillips situations are different; the messages that the other cake shops refused to bake were offensive to everyone. However, Phillips refused to bake the cake specifically because the couple was gay; he would have baked it for anyone else. This is discrimination. So the CRC had good reason to single out Masterpiece, and it was not non-neutral in its proceedings. b. (2) Even if there was no animus in the Commission’s proceedings, the application of the Civil Rights Act was unconstitutional because it did not apply a neutral rule(?)

6. Dissenting: a. The Jack and Phillips case were different. Masterpiece Cakeshop discriminated based on the couple’s identity as gay. The CRC had good reason to single out Masterpiece, and it was not non-neutral in its proceedings. b. The comments of only one commissioner does not mean that the entire CRC proceedings and the application of the Civil Rights Act was done so with animus towards religion. There were many other decisions and decision-makers involved....