Constitutional Law II


Madison's Memorial and Remonstrance

Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.

Establishment Clause

The Establishment Clause of the First Amendment states that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

There are three views of the Establishment Clause: separationism, non-preferentialism, and jurisdictionalism.


Separationists claim that the state may fund secular beliefs but not religious beliefs.

Separationism used to be the most popular view.


Non-preferentialists believe that the state may fund religious and secular beliefs equally.

Non-preferentialism has generally prevailed in the Supreme Court.


Jurisdictionalists hold that the state may not fund any beliefs—and that the distinction between secular and religious beliefs is a false one.

Jurisdictionalism is the best.

Cases concerning the establishment clause generally involve either aid to religious schools, religion in the public schools, or religion in the public square.

Aid to Religious Schools

Generally, something like the Lemon test is used for government aid to religious schools.

The government cannot pay salaries at religious schools, but it may donate secular materials. (Supposedly because it trusts Christian schools to not use donated computers for religious purposes)

Services like tutoring and disability aid can be given to religious school students at their schools.

Aid like tuition vouchers can be given to the parents of students at religious schools.

Religion in the Public Schools

For religion in the public schools, the Court has used the endorsement test, coercion test, and voluntariness test.

Children can be released from school for religious activities as long as the activity is off-campus.

Prayer is always prohibited under the coercion test or endorsement test unless it is completely voluntary and not coordinated or aided by the school.

Having religious elements such as creationism or the Ten Commandments in the school's curriculum will basically always be struck down as a violation of the first prong of the Lemon test—having a secular purpose.

Religion in the Public Square

Religion in the public square cases usually use either the Lemon test, history and tradition test, or endorsement test.

Legislative prayer is usually allowed under the history and tradition test as long as it is not used to proselytize or degrade others or something.

For nativity scenes (crèches), the Court applies Lemon and the endorsement test.

Private religious speech is allowed in public forums (Like at school after hours and in parks). In fact, the government cannot discriminate against religion in allowing or disallowing someone to use a public forum for his speech.

Acknowledgment of religion is okay as long as it does not reach endorsement.

Lemon Test

The Lemon test is one of the Supreme Court's test to determine whether a law can survive an establishment clause challenge.

For a statute to be valid under the Lemon test:

  1. The statute must have a secular legislative purpose.
    • There is some dispute about whether it must be a primarily secular purpose or just a secular purpose.
  2. Its principal or primary effect must be one that neither advances nor inhibits religion.
  3. The statute must not foster "an excessive government entanglement with religion."
    • Sometimes this is merged with the second prong.

The Lemon test has been the clearest and most popular of the Supreme Court's establishment clause tests, but even it has been abandoned now, though without a clear replacement.

Endorsement Test

In Weisman, O'Connor set out a two prong test to determine whether or not an act is a government endorsement of religion:

  1. Is the city's actual purpose to endorse or disapprove religion?
    • The subjective intent of the speaker
  2. Does the practice in fact convey a message of endorsement or disapproval of religion?
    • The objective meaning

The endorsement test is kind of similar to the Lemon test.

History and Tradition Test

The history and tradition test allows government practices under the establishment clause if it is something that has been done throughout America's history.

Vague ceremonial deism is okay.

Conservatives justify this by saying that if the founders did it, then obviously they did not intend to prohibit it in the Constitution; liberals justify this by saying that such practices are just historical in nature now and that they have lost their religious meanings.

Coercion Test

The coercion test prohibits government practices that coerce religious belief/nonbelief or practice/nonpractice.

Coercion includes psycho-coercion, where only peer pressure causes people to do or not do something.

The non-preferentialists believe that there must be some sort of civil or criminal sanction imposed for something to truly be coercive.

The jurisdicitonalists believe that coercion is effected when someone is taxed to propagate opinions and beliefs that they do not agree with.

Free Exercise Clause

Two approaches have been taken to the Free Exercise Clause when one's religious belief is burdened:

  1. Heightened scrutiny
  2. Laws of general applicability
    • If your religious belief breaks a law that applies to everyone, it will not get you out of jail.
      • Exceptions:
        • Hybrid cases (such as involving parental rights too)
        • Unemployment compensation
        • If the crime is symbolic expression
        • If the law targets religion

RFRA is a federal law that "ensures that interests in religious freedom are protected." It has been held to be unconstitutional as applied to the states, but it can bind federally.

  • It thus applies strict scrutiny to any federal action that substantially burdens one's free exercise of religion.

If a law would violate the Free Exercise Clause, then an accommodation must be made for religion.

Even where the Free Exercise Clause is not violated, the state may accommodate a religious practice, unless granting such a protection to religious people would violate the Establishment Clause (Lemon test). However, it does not have to accommodate.

The state has some play-in-the-joints where neither the Free Exercise Clause nor the Establishment Clause are violated, and it can thus choose to accommodate religion or to not.

If a tax accommodation is made to religious organizations, it must also be made to secular organizations.

State Action Doctrine

If a private organization performs municipal functions (like a company town), it is treated as a state action and thus cannot discriminate on the basis of religion.

  • Utility companies are not included in this.
  • Shopping centers have been treated as state actors and have been required to not prohibit people's free exercise of religion therein.
  • This includes organizations with an "inextricable entanglement" of government and private actors, like with a parking garage or restaurant or athletic association.

Enforcing restrictive covenants made between private parties is government action and thus prohibited by the state action doctrine.

The political process doctrine falls under the state action doctrine.

Congressional Enforcement Powers

The Thirteenth Amendment outlaws slavery. The Fourteenth Amendment just addresses state action, not private discrimination.

Discrimination in public accommodations is not a badge or incident of slavery, but discrimination in housing sales is.

The Thirteenth Amendment is interpreted by Congress now, not the courts. The Fourteenth is interpreted by the courts.

However, Congress can regulate private acts under the Commerce Clause.

The Fourteenth Amendment is self-executing in some areas, such as the exclusion of evidence; but Congress can also provide remedies, such as providing monetary for violations.

Under the Fourteenth and Fifteenth Amendments, Congress can punish states that have historically discriminated and outlaw their constitutional laws (like literacy tests for voting) as a preventative measure to prevent them from going farther and actually unconstitutionally discriminating.

Congress cannot revoke sovereign immunity under the Commerce Clause, but it can under the Fourteenth Amendment if the state violates the Constitution or has a history of violations and the law satisfies proportionality and congruity.