Nesheiwat 1

Haifa Nesheiwat
POLS 471F –Dr. Leitch
Short Paper Assignment

When Are Religious Exemptions Justifiable In The Constitution?

The Freedom of Religion has two clauses that create tension when standing discussion.
The government is forbidden to establish an official religion according to the Establishment
Clause, and thus, each person can practice his/her beliefs of religions according to the Free
Exercise Clause. Thomas Jefferson viewed church and the state as two separate entities;
therefore, to place both clauses amongst the competing views where tension could arise causing
a corrupt within the state. Jefferson’s view consisted of the wall of separation between church
and state while the competing view believes that the state will corrupt religions. Thus,
accommodations must interact. While most Americans would view religious exemptions as a
threat to the U.S. Constitution, the first amendment allows for accommodations as along as it
complies with U.S. Constitution1. This paper argues that the religious exemptions can justify in
the Constitution under the Freedom of Religion (1st amendment). However, toleration for the
religious groups implies disapproval, and often can’t be subjected to neutrality and therefore, the
equal legal status does not hold.
The First Amendment2 and Religion have two provisions concerning religion: The
Establishment and the Free Exercise Clause. The Establishment Clause drafts what the
government cannot establish and must not inhibit a particular belief. By addressing the definition
of the word “establishment”, the issues of understanding of what considered constitutional versus
unconstitutional would be directly correlated what constitutes an “establishment of religion.” In
1947 before the Supreme Court, Everson v. Board of Education of Ewing3 case argued the main
purpose of the Establishment Clause was to create a “wall of separation,” High and
impregnable,” between church and state. Through the Lemon test, separation cases today lean
toward accommodation while addressing the “line of separation” between government’s
interference and religious liberty. Consisting of three requirements, the Lemon Test derived as a
result of a 1971 case, Lemon v. Kurtzman. During the Lemon case, the challenged posed before
the government was to decide whether a traditional test admitted at a school violated the
Establishment Clause. Since the practice the failed to meet any one of these requirements, it
violated the Establishment Clause. The three tests were set to see if the state's actions were in
violation of the constitution in the funding of a teacher salary and other non-religious aid to
religious schools. Under the Lemon test4, the questions asked (1) primary purpose is secular; (2)
assistance must neither promote nor inhibit religion; (3) no excessive entanglement between
church and state.
The Free Exercise Clause extends to the protection of practice rights to practice one's
religion to worship as long as it does not invoke any harm or interest to the public promoting that
religion exercise within private means and not to infringe upon the public’s morality by
advocating for that belief5. Public morals or compelling governmental interest is when the
Supreme Court allows the states to force an inoculation that would be overriding interest
between protecting the citizen and the public health and safety. Freedom of religion addressed
the conduct and belief of the religious exercises. Is the regulation a direct or indirect burden of
the religion? If direct, does state have compelling interest? If yes, are there any other approaches
that are less restrictive alternatives? If no, does this exercise violate the establishment clause? If
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it does not violate the Establishment Clause, it is then ok. However, another problem arises when
the government attempts to accommodate free exercise, it can also move into the form of an
establishment, causing it in violation to the constitution.
Cases that have reached the Supreme Court have left a statute where test must be used to
provide enough burdens to decide whether or not the accommodations are unconstitutional or
constitutional6. Amongst the cases, the coercion test resulted from the Lee v. Weisman7 and the
Thomas’s test came about from the Mitchell case addressing neutrality and choice (which also
seen in the Zelman v. Simmons-Harris case8). Under neutrality or the neutrality principle,
Government cannot favor religion over irreligion. The endorsement test was a concurrence to the
Lee case and the Agostini, as subjected to the strict scrutiny of the Lemon test where the
compelling state interest depends on the purpose, effects, and the excessive entanglement of the
governmental interference. The legal holding in the Lee v. Weisman case stated that the required
prayer at a “state-sponsored and state-directed religious exercise in public school” was a
religious violation to the establishment of religion. Congress “shall make no law respecting an
establishment of religion”9. Under the religion clauses, the central question is what is a clear
definition of the term “accommodation” used in religion. The term “accommodation” (or
“exemption,” noting that the two terms used interchangeably) refers to “government laws or
policies that have the purpose and effect of removing a burden on, or facilitating the exercise of,
a person’s or an institution’s religion.
Coercion may account as a justification, but it does so to be legitimate regarding reason.
Because America allows freedom of religious exercise and freedom of religion, every individual
should learn to respect, tolerate religious exemptions and accommodations10. However, that is
not the case when analyzing the religious liberty and legislative exemptions. Religious
exemptions can be justifiable, but are not in line with the U.S. Constitution. Therefore, it cannot
be favored that an accommodation is to a particular belief or action of practice. Some officials
and private citizens argue that accommodations are unconstitutional regardless of the proper
interpretation extracted from a logical and textual view11. Beyond the idea, it would be hard for
executive officials to see to rationalize the religious exemptions that are within the statutory
limitations allowing the accommodations to stand. Legislators may trade religious
accommodations and exemptions for votes promised by lobbyists just as they would trade other
legislation for votes promised.
The first amendment provides security preserving a free government where open
discussions are held and smiled upon favorably. Without open forum debates, society would not
survive if these matters and concerns affecting the nation's security have not moved to address
both legally and diplomatically. The main goal is to inform the people The Constitution was
made to keep the government separate from church and state entanglement Rebellion has played
a large part in the history of America, falling back to the concept of the first amendment and
national defense.
Government has no power to restrict limits or ideals because of a certain subject matter
The message may relay or the message it sends out to the public or the context of the subject
matter. Our people are guaranteed the right to express and freedom to exercise their liberty
without government censorship12. The first amendment clearly indicates there is no such thing as
the false idea for it must be all considered and protected speech regardless of how bizarre it may
be; it all must protect13. Examine the possibility that religious accommodations and exemptions
are bartered and negotiated on the “legislative market”. The laws surrounding legalized freedom
to exercise do not go as far as protecting speech and religion from expression. Religious
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exemptions threaten religious liberty. This article shows the importance of statutory exemptions
in a broader sense in comparison to a favored religious establishment. The national government,
the government of the states, and the general constituents are all evaluating the Court's
responsibility in protecting the religious liberty under the first amendment under constitutional
grounds within public accommodations. Although most executive officials have argued that
religious exemptions remain not created, a closer examination shows that the statutory
accommodations can be in compliance with the constitutional law must have the Court ensure
the protection of the religious liberty to exercise its religious freedom under the first
amendment14.
1
Greenawalt, Kent. "Religion and the Constitution: Volume 2: Establishment and Fairness." JSTOR. Princeton University Press, 2008.
2
Cooper, Phillip J. "The Supreme Court, the First Amendment, and Freedom of Information." The Supreme Court, the First Amendment, and
Freedom of Information 46.6 (1986): 622-28. Wiley on Behalf of the American Society for Public Administration, Dec. 1986.
3
"Everson v. Board of Education of the Township of Ewing." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Nov 9, 2015.
<https://www.oyez.org/cases/1940-1955/330us1>
4
"Lemon v. Kurtzman." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Nov 9, 2015. <https://www.oyez.org/cases/1970/89>
5
Religious Exemptions under the Free Exercise Clause: A Model of Competing Authorities." The Yale Law Journal 90.2 (1980): 350-76. JSTOR.
The Yale Law Journal, Vol. 90, No. 2 (Dec., 1980), pp. 350-376 .
6
Loewentheil, Kara. "When Free Exercise Is a Burden: Protecting Third Parties' in Religious Accommodation Law." Drake Law Review 62.2
(2014).
7
Lee v. Weisman (90-1014), 505 U.S. 577 (1992).
8
Zelman v. Simmons-Harris
536 U.S. 639 (2002)
9
Kirven, Gerald. "Freedom of Religion or Freedom from Religion?" American Bar Association Journal 48.9 (1962): 816-19. JSTOR.
10
Merel, Gail. "The Protection of Individual Choice: A Consistent Understanding of Religion under the First Amendment." The University of
Chicago Law Review 45.4 (1978): 805-43. JSTOR.
11
Kirven, Gerald. "Freedom of Religion or Freedom from Religion?" American Bar Association Journal 48.9 (1962): 816-19. JSTOR.
12
Kirven, Gerald. "Freedom of Religion or Freedom from Religion?" American Bar Association Journal 48.9 (1962): 816-19. JSTOR.
13
McClosky, Herbert, and Alida Brill. "Dimensions of Tolerance, The: What Americans Believe About Civil Liberties."JSTOR. Russell Sage
Foundation, 1983.
14
FISHER, Louis. "Statutory Exemptions for Religious Freedom." JSTOR. JSTOR, 2002.