Free Exercise
How can court's evaluate someone's religion?
United States v. Ballard – the Court can’t evaluate the truth of the religion, but they can evaluate the sincerity of individual's belief.
What long standing test was overruled by Kennedy?
The Lemon test
When do you apply Lukumi, and what is the test?
Laws that are not neutral/generally applicable
Strict scrutiny
What are the establishment theories?
1. Strict separation of church and state - "the wall"
2. Govt neutrality toward religion and non religion/ no endorsement
3. Accommodation -- the govt may welcome religion in public life, but not coerce religious belief
What test is applied to neutral/generally applicable laws? Why?
Smith -- rational basis
Because generally applicable laws only have an incidental burden on religion.
What is the establishment clause test after Kennedy?
Whether govt practices endorse religion when viewed in context of historical practices and understandings.
How did the Court distinguish Smith from other generally applicable laws that applied strict scrutiny?
Sherbert-- unemployment case
Yoder-- free exercise +
After Kennedy what does the establishment clause prohibit?
1. creating an official church
2. compelling/coercing others to engage in religious observance -- if there is an opt out it is no longer coercion.
How does the holding in Mahmoud make sense based on all the other free exercise precedent?
The court did not inquire into whether the policy was generally applicable. They simply stated the burden was similar to that in Yoder and applied strict scrutiny.
State some of the concerns/issues with the Courts interpretation of the establishment clause after Kennedy.
You already cannot coerce/compel someone to engage in religious observance under the free exercise clause, so now the establishment clause is superfluous.
Accommodation theory could lead to favoring religion over non religion.
Ignores more subtle forms of coercion for example players may have felt coerced seeing their coach pray and being asked to pray with him, even if he was not threatening to remove them from the team if they did not.
People may not want to have to opt out. For example, not attending graduation.