Religious Religious Liberty and Liberty and

the First the First AmendmentAmendment

The First AmendmentThe First Amendment““Congress shall make no Congress shall make no law respecting an law respecting an establishment of religion, or establishment of religion, or prohibiting the free exercise prohibiting the free exercise thereof; or abridging the thereof; or abridging the freedom of speech, or of freedom of speech, or of the press; or the right of the press; or the right of the people peaceably to the people peaceably to assemble, and to petition assemble, and to petition the government for a the government for a redress of grievances.”redress of grievances.”

First First Amendment Amendment

U.S. U.S. ConstitutionConstitution

The “lively experiment”The “lively experiment”Roger WilliamsRoger Williams

Two principles, one freedom:Two principles, one freedom:Free exerciseFree exercise

It is the will and command of God that It is the will and command of God that since the coming of his Son the Lord since the coming of his Son the Lord

Jesus a permission of the most Jesus a permission of the most paganish, Jewish, Turkish, or paganish, Jewish, Turkish, or

antichristian consciences and worships, antichristian consciences and worships, be granted to all men in all nations and be granted to all men in all nations and

countries; and they are only to be countries; and they are only to be fought against with that sword which is fought against with that sword which is only in soul matters able to conquer, to only in soul matters able to conquer, to wit, the sword of God’s spirit, the Word wit, the sword of God’s spirit, the Word

of God. of God.

No establishment:No establishment:Separating church from stateSeparating church from state

When they [the Church] have opened a When they [the Church] have opened a gap in the hedge or wall of separation gap in the hedge or wall of separation between the garden of the church and between the garden of the church and

the wilderness of the world, the wilderness of the world, God hath ever broke down the wall God hath ever broke down the wall itself, removed the Candlestick, and itself, removed the Candlestick, and

made His Garden a wilderness as it is made His Garden a wilderness as it is this day. this day.

Diverse from the beginningDiverse from the beginning

All shades of Sectarians exist here in All shades of Sectarians exist here in Pennsylvania down to open infidelity. Pennsylvania down to open infidelity. Besides the English, Swedish, and German Besides the English, Swedish, and German Lutherans, and the Scotch, Dutch and Lutherans, and the Scotch, Dutch and German Reformed, there are Baptists, German Reformed, there are Baptists, Mennonites, Arians, Socinians, Mennonites, Arians, Socinians, Schwenckfleders, German Old Tunkers, Schwenckfleders, German Old Tunkers, New Tunkers, New Lights, Inspired, New Tunkers, New Lights, Inspired, Sabbatarians, Hermits, Independents, and Sabbatarians, Hermits, Independents, and Free Thinkers.Free Thinkers.

Ludwig von Zinzendorf, 1741Ludwig von Zinzendorf, 1741

Religious diversity and religious Religious diversity and religious freedomfreedom

Religious freedom arises from that Religious freedom arises from that multiplicity of sects, which pervades multiplicity of sects, which pervades in America, and which is the best and in America, and which is the best and only security for religious liberty in only security for religious liberty in any society. For where there is such a any society. For where there is such a variety of sects, there cannot be a variety of sects, there cannot be a majority of any one sect to oppress majority of any one sect to oppress and persecute the rest.and persecute the rest.

James Madison, 1788James Madison, 1788

General Defense of the ConstitutionGeneral Defense of the Constitution

Congress shall make no law respecting an Congress shall make no law respecting an

establishment of religion…establishment of religion…

What did the Framers intend? What did the Framers intend? Congress shall make no law Congress shall make no law

establishing one religious Sect or establishing one religious Sect or Society in preference to others… Society in preference to others…

Congress shall make no law Congress shall make no law establishing Articles of Faith or a establishing Articles of Faith or a mode of Worship, or prohibiting the mode of Worship, or prohibiting the free exercise of Religion…free exercise of Religion…

Senate proposals (September, 1789)Senate proposals (September, 1789)

Establishment Clause:Establishment Clause:“Congress shall make no law respecting an establishment of “Congress shall make no law respecting an establishment of

religion…”religion…”

Separation (Separation (McCollumMcCollum, 1948), 1948) Accommodation (Accommodation (ZorachZorach, 1952), 1952) Neutrality/Fairness (Neutrality/Fairness (SchemppSchempp, ,

1963)1963) Strict Neutrality (Strict Neutrality (LemonLemon, 1971), 1971) Endorsement (Endorsement (MergensMergens, 1990), 1990) Coercion (Coercion (WeismanWeisman, 1992), 1992) Equal Treatment (Equal Treatment (RosenbergerRosenberger, ,

1995)1995)

The Lemon TestThe Lemon Test Does the law, or other Does the law, or other

government action, government action, have a bona fide have a bona fide secular or civic secular or civic purpose?purpose?

Does the primary effect Does the primary effect neither advance nor neither advance nor inhibit religion? inhibit religion?

Does the law avoid Does the law avoid excessive governmental excessive governmental entanglement with entanglement with religion?religion?

The Endorsement TestThe Endorsement Test

Former Justice O’Connor Former Justice O’Connor suggested that a government suggested that a government action is invalid if it creates a action is invalid if it creates a perception that the perception that the government is endorsing or government is endorsing or disapproving a religion. The disapproving a religion. The fundamental concern is fundamental concern is whether the challenged whether the challenged governmental activity governmental activity conveys, in Justice O’Connor’s conveys, in Justice O’Connor’s words, “a message to non words, “a message to non adherents that they are adherents that they are outsiders, not full members of outsiders, not full members of the political community, and the political community, and an accompanying message to an accompanying message to adherents that they are adherents that they are insiders, favored members of insiders, favored members of the political community.”the political community.”

The Coercion TestThe Coercion TestIn the 1989 case County of In the 1989 case County of Allegheny v. ACLU, Justice Allegheny v. ACLU, Justice Kennedy proposed a test Kennedy proposed a test with two limiting principles: with two limiting principles: “government may not “government may not coerce anyone to support or coerce anyone to support or participate in any religion or participate in any religion or its exercise; and it may not, its exercise; and it may not, in the guise of avoiding in the guise of avoiding hostility or callous hostility or callous indifference, give direct indifference, give direct benefits to religion in such benefits to religion in such a degree that it in fact a degree that it in fact ‘establishes a [state] ‘establishes a [state] religious faith, or tends to religious faith, or tends to do so.’ Lynch v. Donnelly.”do so.’ Lynch v. Donnelly.”

Applying the separation of church Applying the separation of church and state in the U.S. todayand state in the U.S. today

No direct funding of religion. But some indirect No direct funding of religion. But some indirect funding (such a vouchers for religious schools) is funding (such a vouchers for religious schools) is permissible.permissible.

No promotion or denigration of religion by public No promotion or denigration of religion by public school officials. But teaching school officials. But teaching aboutabout religion is religion is permissible. And students may express their faith permissible. And students may express their faith in a public school, as long as they do not disrupt in a public school, as long as they do not disrupt the school or interfere with the rights of others.the school or interfere with the rights of others.

No government endorsement of religion. But No government endorsement of religion. But general references to God in government settings general references to God in government settings and speech are permissible as reflections of our and speech are permissible as reflections of our history and traditions. history and traditions.

Full liberty of conscienceFull liberty of conscience That diabolical Hell conceived principle of That diabolical Hell conceived principle of

persecution rages among some and to their persecution rages among some and to their eternal Infamy the Clergy can furnish their quota eternal Infamy the Clergy can furnish their quota of Imps for such business. This vexs me the most of Imps for such business. This vexs me the most of any thing whatever. There are at this time in the of any thing whatever. There are at this time in the adjacent County not less than 5 or 6 well meaning adjacent County not less than 5 or 6 well meaning men in close Goal for publishing their religious men in close Goal for publishing their religious Sentiments which in the main are very orthodox. I Sentiments which in the main are very orthodox. I have neither patience to hear talk or think any have neither patience to hear talk or think any thing relative to this matter, for I have squabbled thing relative to this matter, for I have squabbled and scolded abused and ridiculed so long about it, and scolded abused and ridiculed so long about it, to so little purpose that I am without common to so little purpose that I am without common patience. So I leave you to pity me and pray for patience. So I leave you to pity me and pray for Liberty of Conscience to revive among us.Liberty of Conscience to revive among us.

James Madison, 1774James Madison, 1774

Beyond toleration to Free ExerciseBeyond toleration to Free Exercise

That religion, or the duty which we owe to our That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be Creator, and the manner of discharging it, can be directed only by reason and conviction, not by directed only by reason and conviction, not by force or violence; and therefore all men should force or violence; and therefore all men should enjoy the fullest toleration in the exercise of enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience.religion, according to the dictates of conscience.

That religion, or the duty which we owe to our That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be Creator, and the manner of discharging it, can be directed only by reason and conviction, not by directed only by reason and conviction, not by force or violence; and therefore all men are equally force or violence; and therefore all men are equally entitled to the free exercise of religion, according entitled to the free exercise of religion, according to the dictates of conscience.to the dictates of conscience.

Virginia Declaration of Rights, 1776Virginia Declaration of Rights, 1776

The citizens of the United States of America have a The citizens of the United States of America have a right to applaud themselves for having given to right to applaud themselves for having given to Mankind examples of an enlarged and liberal policy, Mankind examples of an enlarged and liberal policy, a policy worthy of imitation. All possess alike liberty a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it now no more that toleration is spoken of, as if it was by the indulgence of one class of people that was by the indulgence of one class of people that another enjoyed the exercise of their inherent another enjoyed the exercise of their inherent natural rights. For happily the Government of the natural rights. For happily the Government of the United States, which gives bigotry no sanction, to United States, which gives bigotry no sanction, to persecution no assistance requires only that they persecution no assistance requires only that they who live under its protection should demean who live under its protection should demean themselves as good citizens, in giving it on all themselves as good citizens, in giving it on all occasions their effectual support.occasions their effectual support.

George Washington, 1790, letter to the Hebrew Congregation of George Washington, 1790, letter to the Hebrew Congregation of Newport, Rhode IslandNewport, Rhode Island

Free Exercise Clause:Free Exercise Clause:“Congress shall make no law…“Congress shall make no law…prohibiting the free exercise [of prohibiting the free exercise [of

religion]…”religion]…”

The Sherbert TestThe Sherbert Test

Sincere religious Sincere religious beliefbelief

Substantial burdenSubstantial burden Compelling state Compelling state

interestinterest Least restrictive Least restrictive

alternativealternative

Employment Division v. SmithEmployment Division v. Smith

Precisely because ‘we are cosmopolitan Precisely because ‘we are cosmopolitan nation made up of people of almost every nation made up of people of almost every conceivable religious preference,’ and conceivable religious preference,’ and precisely because we value and protect precisely because we value and protect that religious divergence, we cannot afford that religious divergence, we cannot afford the luxury of deeming presumptively the luxury of deeming presumptively invalid, as applied to the religious invalid, as applied to the religious objector, every regulation of conduct that objector, every regulation of conduct that does not protect the interest of the highest does not protect the interest of the highest order.order.

Justice Antonin ScaliaJustice Antonin Scalia

Although I agree with the result the Although I agree with the result the Court reaches in this case, I cannot Court reaches in this case, I cannot join its opinion. In my view, today’s join its opinion. In my view, today’s holding dramatically departs from holding dramatically departs from well-settled First Amendment well-settled First Amendment jurisprudence, appears unnecessary to jurisprudence, appears unnecessary to resolve the question presented, and is resolve the question presented, and is incompatible with our Nation’s incompatible with our Nation’s fundamental commitment to fundamental commitment to individual liberty.individual liberty.

Justice Sandra Day O’ConnorJustice Sandra Day O’Connor

Illinois Religious Freedom Illinois Religious Freedom Restoration ActRestoration Act

Sec. 15. Free exercise of religion Sec. 15. Free exercise of religion protected. protected. Government may not Government may not substantially burden a person's exercise of substantially burden a person's exercise of religion, even if the burden results from a religion, even if the burden results from a rule of general applicability, unless it rule of general applicability, unless it demonstrates that application of the burden demonstrates that application of the burden to the person (i) is in furtherance of a to the person (i) is in furtherance of a compelling governmental interest and (ii) is compelling governmental interest and (ii) is the least restrictive means of furthering the least restrictive means of furthering that compelling governmental interest.that compelling governmental interest.

Religious liberty in public Religious liberty in public schools:schools:

Student Religious ExpressionStudent Religious Expression PrayerPrayer Religious Religious

expression in expression in classclass

Distribution of Distribution of religious religious literatureliterature

Student religious Student religious clubs clubs

Case studiesCase studies What do you say to the coach who wants to pray What do you say to the coach who wants to pray

with his team?with his team? A teacher wears a t-shirt with a Bible verse. Is that A teacher wears a t-shirt with a Bible verse. Is that

permissible? A student wears a similar shirt. Is permissible? A student wears a similar shirt. Is that permissible?that permissible?

An elementary student asks to distribute fliers An elementary student asks to distribute fliers about the Good News Club that meets after about the Good News Club that meets after school. Do you allow her to do so?school. Do you allow her to do so?

Fifth-grader Sally tells Rachel that she must Fifth-grader Sally tells Rachel that she must believe in Christ or suffer eternal damnation. believe in Christ or suffer eternal damnation. Rachel goes home upset and the parents Rachel goes home upset and the parents complain. What should the principal do?complain. What should the principal do?

May high school students form a religious club? May high school students form a religious club? May a teacher participate in the activities of the May a teacher participate in the activities of the club? club?

The First AmendmentThe First Amendment““Congress shall make no Congress shall make no law respecting an law respecting an establishment of religion, or establishment of religion, or prohibiting the free exercise prohibiting the free exercise thereof; or abridging the thereof; or abridging the freedom of speech, of the freedom of speech, of the press; or the right of the press; or the right of the people peaceably to people peaceably to assemble, and to petition assemble, and to petition the government for a the government for a redress of grievances.”redress of grievances.”

First First Amendment Amendment

U.S. U.S. ConstitutionConstitution

Flag SaluteFlag Salute

I do not salute the flag because I I do not salute the flag because I have promised to do the will of God.have promised to do the will of God.

Billy Gobitas, 1935Billy Gobitas, 1935

“ “If there is any fixed star in our If there is any fixed star in our constitutional constellation, it constitutional constellation, it is that no official, high or is that no official, high or petty, can prescribe what shall petty, can prescribe what shall be orthodox in politics, be orthodox in politics, nationalism, religion, or other nationalism, religion, or other matters of opinion or force matters of opinion or force citizens to confess by word or citizens to confess by word or act their faith therein.” act their faith therein.”

--Robert H. Jackson, --Robert H. Jackson,

U.S. Supreme Court justice, 1943U.S. Supreme Court justice, 1943

Liberty of conscienceLiberty of conscience The Religion then of every man must be left to the The Religion then of every man must be left to the

conviction and conscience of every man; and it is conviction and conscience of every man; and it is the right of every man to exercise it as these may the right of every man to exercise it as these may dictate. This right is in its nature an unalienable dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by depending only on the evidence contemplated by their own minds cannot follow the dictates of other their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator is the duty of every man to render to the Creator such homage and such only as he believes to be such homage and such only as he believes to be acceptable to him. This duty is precedent, both in acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the order of time and in degree of obligation, to the claims of Civil Society. claims of Civil Society.

--James Madison--James MadisonMemorial and RemonstranceMemorial and Remonstrance

Virginia Act for Establishing Virginia Act for Establishing Religious Freedom, 1786Religious Freedom, 1786

No tax money for religion: “To compel a No tax money for religion: “To compel a man to furnish contributions of money for man to furnish contributions of money for the propagation of opinions which he the propagation of opinions which he disbelieves, is sinful and tyrannical…”disbelieves, is sinful and tyrannical…”

Your religion does not affect your Your religion does not affect your citizenship: “Our civil rights have no citizenship: “Our civil rights have no dependence on our religious opinions, any dependence on our religious opinions, any more than our opinions in physics or more than our opinions in physics or geometry…”geometry…”

The marketplace of ideas: “Truth is great The marketplace of ideas: “Truth is great and will prevail if left to herself…”and will prevail if left to herself…”

No establishmentNo establishment Be it enacted by the General Assembly, Be it enacted by the General Assembly,

that no man shall be compelled to frequent that no man shall be compelled to frequent or support any religious worship, place, or or support any religious worship, place, or ministry whatsoever, nor shall be enforced, ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his restrained, molested, or burthened in his body or goods, nor shall otherwise suffer body or goods, nor shall otherwise suffer on account of his religious opinions or on account of his religious opinions or belief; but that all men shall be free to belief; but that all men shall be free to profess, and by argument to maintain, profess, and by argument to maintain, their opinion in matters of religion, and their opinion in matters of religion, and that the same shall in no wise diminish, that the same shall in no wise diminish, enlarge, or affect their civil capacities.enlarge, or affect their civil capacities.

Virginia Act for Establishing Religious Freedom, 1786Virginia Act for Establishing Religious Freedom, 1786

The Tinker StandardThe Tinker StandardTinker v. Des Moines Independent School Dist. (1969)Tinker v. Des Moines Independent School Dist. (1969)

Student speech Student speech cannot be cannot be censored as long censored as long as it does not as it does not “materially “materially disrupt classwork disrupt classwork or involve or involve substantial substantial disorder or disorder or invasion of the invasion of the rights of others.”rights of others.”

The Fraser StandardThe Fraser StandardBethel School District No. 403 v. Fraser (1986)Bethel School District No. 403 v. Fraser (1986)

Because school Because school officials have an officials have an “interest in teaching “interest in teaching students the students the boundaries of socially boundaries of socially appropriate behavior,” appropriate behavior,” they can censor they can censor student speech that is student speech that is vulgar or indecent, vulgar or indecent, even if it does not even if it does not cause a “material or cause a “material or substantial substantial disruption.”disruption.”

Hazelwood StandardHazelwood StandardHazelwood School Dist. V. Kuhlmeier (1988)Hazelwood School Dist. V. Kuhlmeier (1988)

Censorship of Censorship of school-sponsored school-sponsored student expression student expression is permissible when is permissible when school officials can school officials can show that it is show that it is “reasonably related “reasonably related to legitimate to legitimate pedagogical pedagogical concerns.”concerns.”