Substantive Law Study Support

Questions for Review and Answers

1. What language in the First Amendment guarantees freedom of religion? “Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof.”

2. Compare and contrast the Establishment Clause with the Free Exercise Clause. The Establishment Clause is a limit on the right of government to advance, limit, or aid any religion. It also prevents government “entanglement” with religion. The Free Exercise Clause guarantees that individuals will be allowed to practice their religion without interference from the government. Both Establishment and Free Exercise Clauses protect religious actions and religious beliefs.

3. How has the Supreme Court explained the term religion?

In one case, the Court used the following explanation: “A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the orthodox beliefs in God.” In another case, the Court stated: “In order for a belief or creed to be considered a religion, the following criteria must be met: (1) there must be a belief in God or the person must hold a parallel belief that is central in the person’s life, (2) the religion must incorporate a moral code that goes beyond individual belief, (3) there must be some associational ties, some group of people brought together by common beliefs, and (4) the belief must be sincere.”

4. What are the three major theories regarding interpretation of the Establishment Clause?
The strict separation theory states that religion and government should be separated to the greatest extent possible. Under this theory, government is to be secular, and religion is left to society. Under the neutrality theory, the government must remain neutral toward religion. The government cannot prefer religion over secularism or favor one religion over others. The accommodation theory supports an interpretation of the Establishment Clause to mean that the Court should affirm the importance of religion in American society and it should accommodate its presence in the government.

5. What is the effect of the First Amendment on prayer in public schools?

The Supreme Court stated that the First Amendment prohibits school-sanctioned prayer. Specifically, the Court prohibited a public school policy of voluntary prayer time, clergy-led prayer at graduation, reading the Bible in class, and reciting the Lord’s Prayer in class.

6. How has the teaching of evolution created a freedom of religion issue?

The teaching of evolution presented different questions. Initially the question was whether states could adopt laws prohibiting the teaching of evolution and only allowing the teaching of creationism. Creationists argued that the theory of evolution was against their religious beliefs. Later, the issue became whether a public school was required to teach creationist theory along with evolution.

7. What are the arguments for and against grants of tax exemption to religious institutions?
On one hand, granting a tax exemption to religious institutions aids religion and therefore interferes with the Establishment Clause. On the other hand, taxing religions puts a burden on the religion and interferes with the Free Exercise Clause. The Court allows tax exemptions because of the social contributions of religions, but the same exemptions must be available for nonreligious charities.

8. Analyze circumstances under which the government can give financial aid to religious schools.
The government can give aid to religious elementary and high schools if the aid is for nonreligious activities, such as school busing. Similar assistance must be available to nonreligious schools. The Court also favors aid given directly to students and not to the religious school. The Court is more lenient in reviewing aid to colleges and universities. It notes the difference in age of students and their ability to understand that government aid is not an endorsement of a religion.

9. What is the relevance under the Free Exercise Clause between religious conduct and religious beliefs?
Religious belief is protected by the Free Exercise Clause, but religious conduct, like any conduct, can be regulated by the state. Religious conduct, such as smoking peyote or polygamy, which is illegal, is not protected by the Free Exercise Clause.

10. How has the Supreme Court applied the Free Exercise Clause to claims for unemployment benefits, compulsory education, and Sunday closing laws? Denying unemployment benefits to people who do not work on a Sabbath because it violates their religious beliefs is unconstitutional. The Court sided with Amish families in finding that compulsory high school education of their children violated the Free Exercise Clause. A free exercise challenge was rejected, however, in connection with Sunday closing laws when an Orthodox Jew claimed that because he had to close on Saturday because of his religious beliefs, forcing him to close on Sunday (in accordance with the Sunday closing law) interfered with his religious beliefs.