Belief/Action Distinction and the Valid Secular Policy Test



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The Religion Clauses

Free Exercise of Religion

Belief/Action Distinction and the Valid Secular Policy Test


  • Reynolds v. U.S. (1879) upheld anti-polygamy law, used belief/action distinction

  • Cantwell v. Connecticut (1940) policy must serve “legitimate non-religious governmental goal,” establishes “valid secular policy” test (VSPT)

  • Minersville School District v. Gobitis (1940) upholds mandatory flag salute using VSPT

  • Prince v. Massachusetts (1944) upholds law prohibiting street sales by minors using VSPT



Compelling Interest Test (Sherbert-Yoder)


  • Braunfeld v. Brown (1961) upholds “blue laws” under VSPT, but only if no other means available that do not burden religious liberty

  • Sherbert v. Verner (1963) overturned denial of unemployment compensation to Seventh Day Adventist who was fired for refusing to work on the Sabbath. Law that impinges on religious practice must have a “compelling governmental interest” and accomplish interest in “least restrictive manner possible”

  • Wisconsin v. Yoder (1972) Amish exempt from school beyond 8th grade, uses CIT

  • Thomas v. Review Board of IESD (1981) State cannot terminate unemployment to individual who refuses to work in the production of armaments for religious reasons.



Smith Test


  • U.S. v. Lee (1982) Amish must pay Social Security taxes, inconsistent with Yoder?

  • Goldman v. Weinberger (1986) upholds military ban on wearing of yarmulke

  • Employment Div. DHR of Oregon v. Smith (1990) rejects Sherbert-Yoder test, reaffirms Reynolds, laws of general applicability are constitutional even when they infringe on religion

  • Church of Lukumi Babalu Aye v. City of Hialeah (1993) strikes law banning ritual sacrifice



Congressional Response


  • City of Boerne v. Flores (1997) overturns Religious Freedom Restoration Act

  • Cutter v. Wilkinson (2005) upholds scaled back version of RFRA



Establishment of Religion
Debate over Meaning of Clause

  • Founders competing conceptions

  • Wall of Separation approach: prohibits most, if not all forms of public aid for religion

  • Accommodation/Non-preferentialism approach: allows non-discriminatory aid for all religions

  • Prohibits state religion


Creating a General Standard

  • Bradfield v. Roberts (1899) upholds funding to Catholic run hospital, law has “secular purpose”

  • Everson v. Bd. of Ed. (1947) upholds transportation aid to private schools, EC requires government “neutrality” in its treatment of religious believers and non-believers, full Court adopts wall of separation position

  • Divided rulings using Everson: Court likely to support some public aid to private school (textbook, transport) but not the introduction of religion into public schools (prayer, teaching creationism)

  • Abington Township v. Schempp (1963) strikes school prayer, law must have (1) “secular purpose”, and (2) “primary effect that neither advances nor inhibits religion”

  • Waltz v. Tax Comm. of NY (1970) upholds property tax exemptions for religious institutions, replaces prong (2) of Abington with “end result…is not an excessive government entanglement with religion.”

  • Lemon v. Kurtzman (DiCenso) (1971) strikes law giving aid to parochial schools for salaries and textbooks, new test includes both prongs of Abington and the Waltz “entanglement” test



Areas of Establishment Clause Jurisprudence

Aid to Religious Schools

  • Divided results using application of Lemon v. Kurtzman (1971)

  • Zelman v. Simmons-Harris (2002) upholds school vouchers to parochial schools, direct v. indirect aid with choice


Use of Public School Facilities/Funds for Religious Purposes

  • Widmar v. Vincent (1981) strikes university policy denying religious groups use of meeting rooms, permitting the regulation would violate “entanglement” prong, “equal access” policies do not violate Establishment Clause

  • Lamb’s Chapel v. CMUFSD (1993) struck law prohibiting use of school facilities by religious groups, violation of free speech, denial of access not required by Lemon

  • Rosenberger v. UVA (1995) university funding of religious publication does not violate Lemon, policy actually violates free speech clause


Religious Instruction in Public Schools

  • Epperson v. Arkansas (1968) strikes law prohibiting teaching of evolution, not neutral

  • Edwards v. Aguillard (1987) strikes law prohibiting teaching of evolution unless creation theory was also taught, advancing religious beliefs was clear intent


Public School Prayer

  • Engel v. Vitale (1962) strikes mandatory nondenominational state-written prayer in school, no test established

  • Abington Township v. Schempp (Murray) (1963) strikes reading of Bible verses in classroom, law must have (1) “secular purpose”, and (2) “primary effect that neither advances nor inhibits religion”, here the exercise was essential a religious service with no secular purpose, not neutral with respect to non-believers, Stewart dissent introduces “coercion” test

  • Wallace v. Jaffree (1985) strikes period of silence for meditation or prayer under Lemon test, no secular purpose, Rehnquist dissent rejects wall of separation approach, argues non-preferentialism

  • Lee v. Weisman (1992) strikes prayer at graduation ceremonies, subtle coercion

  • Santa Fe Ind. School Dist. v. Doe (2000) struck student-led invocations at high school football games, constituted endorsement of religion, subtle coercion, violates Lemon (no secular purpose)


Religious Holiday Displays

  • Lynch v. Donnelly (1984) upholds city funding for Christmas/nativity display, argues there was a legitimate secular purpose

  • County of Allegheny v. ACLU (1989) strikes display of solitary crèche in courthouse, upholds display of menorah next to Christmas tree, applies “endorsement” theory

  • Van Orden v. Perry (2005) in a plurality opinion the Court allows the display of a Ten Commandments monument, suggests Lemon is not sole test



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