first amendment religion brief outline.pdf

Summary The doctrine of unconstitutional conditions addresses the issue when the government offers a benefit (e.g., employment, funding) contingent upon the recipient relinquishing a constitutional right (e.g., free speech). The Supreme Court has ruled that the government cannot indirectly restrict...

Summary The doctrine of unconstitutional conditions addresses the issue when the government offers a benefit (e.g., employment, funding) contingent upon the recipient relinquishing a constitutional right (e.g., free speech). The Supreme Court has ruled that the government cannot indirectly restrict constitutional rights by attaching such conditions to benefits. While the doctrine's application can seem inconsistent, two principles often guide its application: the government can require agents delivering its message to waive conflicting speech rights, and it can restrict how government subsidies are used without infringing on First Amendment rights. Outline I. Unconstitutional Conditions A. General Overview Definition: Imposing a condition on a government benefit that requires waiving a constitutional right is often unconstitutional. Key Doctrine: Government cannot do indirectly what it's prohibited from doing directly regarding constitutional rights. B. Application Principles The doctrine applies strictly, requiring a compelling government interest and the least restrictive means to infringe on freedom of association. II. Right Not to Associate A. Financial Support Individuals cannot be compelled to financially support organizations with opposing views. B. Participation and Membership Groups can exclude participants or members that conflict with the group's expressive activities. Government cannot criminalize membership in a group unless it's engaged in or incites unlawful actions. C. Public Employment and Benefits Associational activities cannot be grounds for denying government jobs or benefits unless related directly to job performance. III. Special Problems of the Media A. Prior Restraint and Gag Orders B. Subpoenas and Confidentiality The press has no special protection against subpoenas but may be protected under shield laws. C. Right of Access to Information The government rarely can prevent media from publishing stories or impose gag orders, with few exceptions. The media has a constitutional right to attend criminal trials but no general right to access government-held information. D. Confidential and Illegally-Obtained Information The government can't prohibit media from disclosing information unless obtained through the media's illegal actions. IV. Government Speech and Subsidies A. Government as Speaker The government can condition payment on agents' willingness to support its message. B. Subsidy Programs Government can restrict how subsidies are used without violating the First Amendment, ensuring funds serve their authorized purpose. V. Unconstitutional Conditions and the Media A. Right to Report The media's ability to report on matters of public interest is protected, even when it involves confidential or controversial information. B. Newsworthiness vs. Privacy Balancing the public's right to know with individuals' right to privacy, especially in cases involving illegally obtained information by third parties. This outline encapsulates the complex interplay between individual rights and government interests, illustrating how constitutional protections extend to individuals, groups, and the media, especially in contexts involving government benefits and the dissemination of information ESTABLISHMENT CLAUSE Summary: The First Amendment contains two clauses pertaining to religion: the Establishment Clause, which prohibits government from endorsing or supporting religion, and the Free Exercise Clause, which bars government from prohibiting the free exercise of religion. The Establishment Clause puts a wall between church and state, and the government must stay out of the business of religion. The Supreme Court has struggled to develop a clear test for distinguishing government action that violates the Establishment Clause from action that doesn't. In the past, the Court used the Lemon v. Kurtzman three-part test, but this has been abandoned in favor of a more historical approach. The Establishment Clause is particularly relevant in the context of public schools, where the government may not conduct religious instruction, read prayers in the classroom, or design the curriculum to further religion at the expense of non-religion. The Clause also limits the government's ability to conduct ceremonies, put on displays, or erect monuments that refer to religious subjects. Financial aid to religious schools is a complex issue, and the constitutionality of such aid depends on factors such as whether the aid benefits all students and whether it is given to parents or directly to the school. Finally, the Establishment Clause prohibits the government from preferring one religion over another or one sect over others. Outline: I. Introduction A. Two clauses in the First Amendment pertaining to religion 1. Establishment Clause 2. Free Exercise Clause B. Establishment and Free Exercise Clauses apply to states C. Conflict between Establishment and Free Exercise Clauses II. The Establishment Clause A. General rule: wall between church and state 1. Examples of what the Establishment Clause forbids B. No clear test for distinguishing government action that violates the Establishment Clause 1. Former three-part Lemon v. Kurtzman test 2. Present "instructions" given by Court 3. What the Clause now seems to forbid C. Religion and the public schools 1. Conducting of religious instruction 2. Release for optional religious instruction 3. Use of school facilities by student groups 4. Prayer reading in the classroom 5. Prayer reading during non-classroom school activities 6. The Lemon test is abandoned (Kennedy v. Bremerton School Dist.) 7. Modification of curriculum D. Sunday closing laws E. Ceremonies, displays and monuments 1. Ceremonies referring to religious themes 2. Displays and monuments with religious themes F. Financial aid to religious schools 1. General principles 2. Transportation 3. Textbooks and equipment 4. Teachers 5. Tuition vouchers G. No preference for one sect over others 1. Strict scrutiny 2. Intentional "accommodation" of a religion 3. Unintended effect 4. Preference of religion over non-religion 5. National security, and the entry of foreigners into the U.S. (Trump v. Hawaii) H. The "excessive entanglement prong" 1. The "ministerial exception" from government regulation Part 2 Summary The chapter on "Freedom of Religion" comprehensively covers the First Amendment's Establishment and Free Exercise Clauses, which protect individuals' rights to practice their religion freely and prevent the government from establishing or favoring a religion. It details the application of these clauses to various contexts, including public employment, education, financial aid to religious schools, and more. Key Supreme Court decisions are explored to illustrate the evolving interpretation of these clauses, highlighting the balance between religious freedom and the principle of separation of church and state. The chapter emphasizes the Supreme Court's shift away from the Lemon test towards a historical practices and understandings approach, as well as the nuanced handling of religious displays, monuments, and ceremonies by the government. Outline I. Introduction to Freedom of Religion A. Two Distinct Clauses 1. Establishment Clause 2. Free Exercise Clause B. Applicability to States C. Potential Conflict Between Clauses II. The Establishment Clause A. General Rule and Purpose 1. Prohibited Actions by the Government B. Lack of a Clear Test Post-2022 1. Abandonment of the Lemon Test 2. Shift to Historical Practices and Understandings C. Religion and Public Schools 1. Restrictions on Religious Instruction and Activities 2. Conditions for Religious Groups Using School Facilities 3. Changes in the Legal Landscape Post-Kennedy v. Bremerton D. Sunday Closing Laws E. Ceremonies, Displays, and Monuments 1. Government-Led Ceremonies and Religious Themes 2. Government Involvement with Religious Displays and Monuments 3. III. Financial Aid to Religious Schools A. General Principles for Analyzing Aid B. Specific Types of Aid 1. Transportation 2. Textbooks and Equipment 3. Teachers 4. Tuition Vouchers C. No Preference for One Sect Over Others 1. Strict Scrutiny for Sect Preference 2. Unintended Effects and Accommodation of Religion 3. IV. Special Considerations A. National Security and Entry of Foreigners B. The Excessive Entanglement Prong 1. Ministerial Exception from Government Regulation III. The Free Exercise Clause A. Free Exercise generally 1. Conduct vs. belief B. Intentional vs. unintentional burdens 1. Intentional burden 2. Unintentional burden C. Three categories of intentional discrimination vs. religion 1. Prohibition or punishment 2. Pool of discretionary benefits denied for "essentially religious" uses 3. Denial of generally-available benefit D. Unintentional burdening of religious practices 1. Rule since 1990 (Employment Div. v. Smith) a. A few exceptions may remain 2. The meaning of "generally-applicable law" under Smith a. Two categories 1. Individualized exemptions 2. Comparable secular activity b. Individualized exemptions (Fulton v. Philadelphia) c. Categorical exemptions for secular activities (Tandon v. Newsom) 3. Possible overruling of Smith 4. Anti-discrimination laws, and a group's right to pick its "ministers" E. Conscientious objection F. Public health G. What constitutes a religious belief 1. Non-theistic 2. Unorganized religions 3. Sincerity Outline I. The Free Exercise Clause Overview A. General Principles 1. Protects religious beliefs and conduct 2. Applies to intentional and unintentional government burdens II. Intentional vs. Unintentional Burdens A. Intentional Government Burdens 1. Subjected to strict scrutiny 2. Often struck down unless narrowly tailored to serve a compelling government interest B. Unintentional Government Burdens 3. Upheld if part of neutral laws of general applicability 2. Exceptions for individualized exemptions and discrimination against religious status or use III. Categories of Government Actions A. Prohibition or Punishment of Religious Conduct 1. Strict scrutiny applied to discriminatory actions B. Discretionary Benefits Denied for Religious Uses 2. Limited scrutiny for exclusions from "essentially religious" endeavors C. Denial of Generally-Available Benefits 3. Strict scrutiny for exclusions based on religious status or use IV. Unintentional Burdening of Religious Practices A. General Applicability Standard 1. Employment Division v. Smith principle 2. Exceptions for laws with individualized exemptions or non-applicability to comparable secular activities V. Potential Overruling of Smit A. Criticism and Possible Reconsideration 1. Shift towards more robust protection of religious practices VI. Specific Applications and Exceptions A. Conscientious Objection 1. Military service exemptions and limitations B. Public Health 1. Treatment refusal based on religious beliefs C. Definition of Religious Belief 1. Protection of non-theistic and unconventional beliefs 2. Requirement of genuine and sincere belief This outline delineates the complex interplay between government regulations and the protection of religious freedom under the Free Exercise Clause, emphasizing the evolving legal landscape shaped by Supreme Court rulings.