The First Amendment covers a lot of material, and future posts will deal with freedom of speech, and freedom of association. This post will center on freedom of religion. Your first thought when reading a fact pattern on the MBE that implicates freedom of religion should be to determine whether your analysis should be guided by The Establishment Clause, or The Free Exercise Clause.
I. The Establishment Clause:
The Establishment Clause is implicated when a government program, or governmental legislation prefers one religion, or one religious sect, over another, or when the government is providing some benefit to a religious institution but the legislation or government program contains no religious or sect preference. If the former, then traditional strict scrutiny is applied, and the program will fail unless the government can prove that the program is necessary to further a compelling government interest. …show more content…
Kurtzman (ie., The Lemon Test) must be applied. Under this test, the legislation or governmental program will be valid if the statute or regulation has a secular purpose, the primary effect or purpose neither advances nor inhibits religion, and the statute or regulation does not foster excessive government entanglement with religion.
Applying this test, the Court has found constitutional the government supplying textbooks to all students, including students in parochial schools (all three elements of The Lemon Test were satisfied), but found unconstitutional most religious activities in public schools, such as prayer and bible reading (prayer and bible reading advance religion, and, therefore, fail The Lemon Test).
II. The Free Exercise
I. The Establishment Clause:
The Establishment Clause is implicated when a government program, or governmental legislation prefers one religion, or one religious sect, over another, or when the government is providing some benefit to a religious institution but the legislation or government program contains no religious or sect preference. If the former, then traditional strict scrutiny is applied, and the program will fail unless the government can prove that the program is necessary to further a compelling government interest. …show more content…
Kurtzman (ie., The Lemon Test) must be applied. Under this test, the legislation or governmental program will be valid if the statute or regulation has a secular purpose, the primary effect or purpose neither advances nor inhibits religion, and the statute or regulation does not foster excessive government entanglement with religion.
Applying this test, the Court has found constitutional the government supplying textbooks to all students, including students in parochial schools (all three elements of The Lemon Test were satisfied), but found unconstitutional most religious activities in public schools, such as prayer and bible reading (prayer and bible reading advance religion, and, therefore, fail The Lemon Test).
II. The Free Exercise