CHAPTER FOUR: RELIGION: EXERCISE AND ESTABLISHMENT
Type: E
1. What did Tocqueville observe about religion in America, and how does this relate to religion
in the U.S. today?
2. How did the framers deal with the issue of religion in the constitution?
3. What was the response to the framers leaving religious freedoms out of the original document?
How did the states ultimately win this debate?
4. How did the Court initially define religion? How did this definition affect religious freedom?
5. How did the Court define religion according to the Ballard test? Did this definition broaden or
contract religious freedom? Why?
6. Discuss three legal victories Jehovah’s witnesses have won at the U.S. Supreme Court.
7. Explain the belief action dichotomy and how the Court used it to decide Cantwell v.
Connecticut. How does this legal test affect the fortunes of those who seek religious freedom?
8. How did the conscientious objector cases during Vietnam affect the right of religious
freedom?
9. What is the difference between the Valid Secular Policy Test and the Compelling interest test?
How does each affect the probability of increasing religious freedom?
10. How did the Smith test alter from the Sherbert test? How has the change affected the
government’s ability to regulate religious freedom?
11. What are the parts of the three pronged test created by the Court in Lemon v. Kurtzman?
Provide examples of each.
12. How does Yoder square with the Court’s decision in Prince?
13. According to Reynolds v. U.S. and Davis v. Beason, what reasons could the government
legitimately use to outlaw certain religious practices?
14. Why did the Court reach disparate outcomes in Reynolds and Pierce?
15. What rationale did the Court use to support its ruling against Gobitas? How was the decision
received and what did the Court ultimately do about it?
16. What special circumstances led the Court to rule in favor of the Massachusetts law in Prince
v. Massachusetts? How was this case used in subsequent cases?
17. Given several examples of how the Lemon test has been applied to both uphold and to strike
government involvement with religion (use case examples).
18. Does the compelling interest test always mean the government will lose when it is accused of
infringing on individuals’ free exercise? Why or why not? Give examples.
19. How did the separation of powers come into play as the Court decided City of Boerne?
20. How did Hobby Lobby change how the RFRA is invoked to protect religious liberty?
21. Compare and contrast how the three historical views of the establishment clause has been
used to expand or contract the separation of church and state?
22. Why was the Court willing to take a semi-accommodationist stance in Everson?
23. When is the Court willing to allow taxes to be used to support sectarian education? What
lines does it draw?
24. Beyond banning prayer in public schools, how did the ruling in Schempp change how the
Court viewed establishment clause cases?
25. Explain how the Court changed its view on New York’s education assistance program from
Aguilar to Agostini?
26. Why is the Court more tolerant of the relationship between church and state in colleges than
it is in elementary and secondary schools?
27. Why did the Court reach disparate decisions in McCreary and Van Orden?
28. What does Kennedy mean by indirect coercion in Lee v. Weisman and how did he use this
new test to strike down the school prayer in this case?
Bloom’s Taxonomy: Analysis; Answer Location: 169
29. In Reynolds v. U.S the Court outlawed:
30. In Wisconsin v. Yoder the Court ruled that:
31. Edwards v. Aguillard ruled that:
32. The valid secular policy test helps the Court determine is there is a legitimate religious goal
in the law that has been passed:
33. School sponsored prayer before football games was ruled unconstitutional in:
34. In religious establishment cases the compelling interest test makes it:
35. The major change in the Court’s Establishment Clause cases ushered in by Walz v. Tax
Commission of the City of New York dealt with:
36. With the Religious Freedom Restoration Act, Congress:
37. County of Allegheny v. ACLU indicated that the Court :
38. The test for ruling in religious establishment cases created by Chief Justice Burger is the:
39. In Zelman the Court upheld:
40. The Court ruled in favor of for Rosenberger because
ESSAY QUESTIONS:
Type: E
41. How has the Supreme Court’s definition of religion evolved throughout its history of
deciding first amendment cases? Make sure to cite specific cases to explain how the evolution
42. Lemon v Kurtzman (1971) provides the Supreme Court with one of its most famous fithree
pronged tests.” Since this case, however, the Court has not used the Lemon Test consistently,
and the justices have not reached consensus on a definitive standard by which to adjudicate
religious establishment clause cases. First, explain the 3 prongs of the Lemon test, and from
which cases each originated. Then, using cases from class, explain how the Court uses this test to
judge establishment clause cases. Next, either defend this test as an appropriate standard, or
argue that another test would be better (one that you have thought of, or one that another
justice(s) supports). Be sure to cite those cases that support your argument and the rationale
within them that is relevant. Finally, explain why other tests are not as good as the one you
43. The Court has consistently held that the free exercise of religion is a fundamental right.
However, as with the establishment clause, the Court has not given a definitive answer as to what
should be protected religious practices, and what should not be protected. In Cantwell the Court
ground its decision in a standard of government neutrality, but this standard did not remain good
law for long. Instead, the Court changed its standard to one that restricts the state’s ability to
interfere with the right to free exercise of religion. Explain this standard, and how the Court
applied it for several decades. From there, discuss the downfall of this standard, and what
replaced it during the Rehnquist era. In short, discuss the evolution of the different standards
used by the Court, from Cantwell through Smith. Finally make an argument for where you
believe Free Exercise doctrine is headed in light of the most recent cases we read in this area,
44. Scholars argue that the free exercise clause and the religious establishment clause are often at
odds with one another and that, at a minimum, there is tension between them. Do you agree with
this statement? Why or why not? Be sure to cite examples and cases you have read to justify
HYPOTHETICAL QUESTIONS:
Type: E
45. In West Sussex Alabama district judge Robert Favre runs a very formal courtroom where
justice is handed out quietly but swiftly. The formality of Favre’s courtroom is demonstrated by
the fact that he runs all proceedings with an iron fist. Additionally, the judge begins every day
with a prayer that asks God to allow him to act judiciously and fairly when dealing with
defendants. These prayers, while non-denominational, are read by different members of the
clergy each week. The pool of clergy includes several Presbyterian ministers; a few Catholic
priests, but is mostly comprised of Southern Baptist ministers from the surrounding counties.
These ministers are not paid, but on those days that they read the Court’s prayer, they are
provided with breakfast at a local coffee shop across from the courthouse.
To also help him serve justice, and to fishow his place under God,” judge Favre carved a replica
of the stone tablets upon which the Ten Commandments were written. He took it upon himself to
hang these tablets behind his bench for all to see. When asked why he put them in his courtroom,
the judge said simply fiwe must all realize that no matter what our laws may be, we all live under
God’s law and must follow it without question.” While protesters said he should remove them,
Favre refused to do so.
On January 5, 1999 Roger Vinatonka was brought into judge Favre’s courtroom to defend an
accusation that he had robbed 5 gas stations in the past month. As this was the first case of the
day judge Favre asked Southern Baptist minister Mordecai Brown to read the invocation. After
he read the prayer, Vinatonka’s attorney objected that this prayer was a violation of the
Establishment clause of the First Amendment. Additionally, he objected to the Ten
Commandments in the courtroom, as these also violate the wall of separation between church
and state. His argument was that it was a violation of his client’s rights to be subjected to such
prayers when he was not Christian, and his beliefs did not include praying to God or following
the Ten Commandments. He also argued that for justice to be conducted fairly in this courtroom
the prayers must be stopped and the Ten Commandments must be taken down. Favre overruled
the objection and noted that even though Vinatonka was not a Christian these were ideals by
which all fired blooded” Americans should live. Because Vinatonka waived his right to a jury
trial the judge decided the case and found the defendant guilty. After telling him that fithou shall
not steal” Vinatonka was sentenced to 3 years in a state prison. On appeal Vinatonka’s attorney
argued that the trial was unfair and biased because it was conducted under the auspices of
Christian tenets which Vinatonka did not recognize which was a direct violation of the
Establishment Clause. The appeals court in Alabama affirmed the conviction and said there was
no First Amendment problem. The case was appealed to the Supreme Court.
As a justice on the Court, how would you rule given the line of establishment clause cases
decided by the Court? Should the judge be allowed to continue the prayers? Why or why not? Is
there a way that the prayers could be altered so that they would not violate the establishment
clause? How would you deal with the issue of the Ten Commandments? Should they be taken
down, or can they stay as a symbol of respect for God? Finally, should Vinatonka be granted a
new trial? Why or why not? You must cite cases from class to support your answers. There is no
right answer, but all answers must be logical and supported with case law.
Cantwell v. Connecticut (1940)
Relevant Case Facts:
Cantwell and his sons, members of the Jehovah’s Witnesses sect, were playing records and
distributing pamphlets to citizens walking the streets of New Haven Connecticut. Two passersby
took offense to the anti-Catholic message from Cantwell and the next day he was arrested by the
police for violating a state law prohibiting individuals from soliciting money for any cause
without a license. The law required those who wanted to solicit to obtain a certificate of approval
from the state’s secretary of the Public Welfare Council. The official could grant the permit if it
was meant for a religious cause or for charity. If the official found that neither of these were the
purpose of the solicitation, he could deny the certificate.
Legal Question: Does requiring a person to obtain a certificate in order to solicit support for
their religious views violate the Free Exercise Clause of the First Amendment?
Reasoning:
Sherbert v Verner (1963)
Relevant Case Facts:
Sherbert was a member of the 7th Day Adventist church which held that no work be performed
between sundown on Friday and sundown on Saturday. Her employer informed her that work on
Saturdays would not longer be voluntary – to retain her job she would need to report to work
every Saturday. After missing six consecutive Saturdays she was fired from her job. Sherbert
filed for state unemployment benefits, but the South Carolina law stated that individuals were not
eligible for such benefits if they failed to accept suitable work, without cause, when it was
offered. In short, her religious preferences were an insufficient reason for her refusal to work.
Sherbert’s attorneys argued that the law forced her to repudiate her religious beliefs by
professing to do something in conflict with the tenets of her church.
Legal Question: May states deny unemployment benefits to persons whose religious beliefs
preclude them from working on Saturdays?
Reasoning:
Concurring (Douglas):
Concurring (Stewart):
Dissenting (Harlan and White):
Wisconsin v. Yoder (1992)
Relevant Case Facts:
Wisconsin had a compulsory education law, mandating that children attend school until the age
of 16. This law violated the norms of the Amish, as they do not permit their children to attend
school after the 8th grade. Instead they prefer to educate older children at home. School officials
in New Glarus brought a complaint against Amish families for not sending their older children to
school. After being fined $5 by the county court, the families claimed the compulsory education
law violated their 1st and 14th Amendment rights.
Legal Question: Do compulsory education laws that force the Amish to send their children to
school violate the free exercise clause made applicable through the 14th Amendment?
Reasoning:
Concurring (White, Brennan, and Stewart):
Dissenting in Part (Douglas):
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
Relevant Case Facts:
Two members of the Native American Church were fired from their jobs as drug counselors for
ingesting peyote during a private religious ceremony. They both applied for unemployment
benefits but were turned down by the state because they had been fired for fimisconduct;” under
state law, workers discharged for that reason cannot obtain benefits. Smith argued the state could
not deny them benefits because they had not been charged with criminal conduct. Further, he
argued that the state could not deny benefits because he was unwilling to give up an activity
mandated by religion. The state argued that the use of peyote was prohibited by a general
criminal statute and therefore was not inhibiting religion.
Legal Question: May a state deny unemployment benefits to those who lost their job because
they violated a general state law, even when the action taken was based on religious convictions?
Reasoning:
Concurring in the judgment (O’Connor, with Brennan, Marshall, and Blackmun on parts I
and II – although the latter 3 do not concur in the judgment):
Dissenting: (Blackmun, Brennan, and Marshall):
City of Boerne v. Flores (1997)
Relevant Case Facts:
In 1991 St. Peter the Apostle Church received permission from the archbishop of San Antonio to
demolish its current structure and to build a new seven hundred seat church, more than tripling
its capacity. City officials rejected the permit request on the grounds that the church was covered
by the city’s historical preservation program. Archbishop Flores sued, claiming that building a
new church is a form of free exercise protected by the Religious Freedom Restoration Act
(RFRA).
Legal Question: Does the Religious Freedom Restoration Act impermissibly interfere with local
governmental power to decide how to balance individual rights and governmental authority?
Reasoning:
Concurring (Stevens):
Concurring in part (Scalia and Stevens):
The issue presented in Smith is whether the people, through their elected officials, or rather this
Dissenting (O’Connor and Breyer):
I would direct the parties to brief the question whether Smith represents the correct understanding
of the free exercise clause and set the case for reargument. The historical evidence cases doubt
Dissenting (Souter):
Everson v. Board of Education (1947)
Relevant Case Facts:
In 1941 New Jersey passed a law authorizing local school boards to provide transportation for
public school children to and from school, and to supply transportation to school children living
in the district who attended nonprofit private schools. Ewing township decided to use tax dollars
to reimburse parents for transportation costs. Because the township had no high school of its
own, the reimbursement policy covered transportation expenses to parents sending their children
to three neighboring public schools and four private schools – of which were affiliated with the
Roman Catholic Church. The average payment was $40 per student. Everson, a taxpayer in the
district, challenged the reimbursements to parents sending their kids to religious private schools.
Legal Question: Does reimbursing parents (with tax dollars) for transporting their children to
private religious schools violate the Establishment Clause?
Reasoning: