Two the lemon test the Supreme Court and lemon B kurtzman 1971
developed the lemon test to evaluate whether government
actions violate the Establishment Clause.
This three-part test remains a critical framework for
determining the constitutionality of government
involvement in religious matters.
It is shaped how courts navigate the delicate balance between
state neutrality and entanglement with religion.
The Lemon test requires that secular purpose.
The government action must have a legitimate secular, non
religious purpose. Example in Lemon V Kurtzman, the
Court found that providing state financial aid to religious
schools did not serve a secular purpose as the funds indirectly
supported religious instruction, rendering the action
unconstitutional. Primary Effect The primary
effect of the government action must neither advance nor inhibit
religion. Government actions can have
incidental effects on religion, but the central purpose must not
be religious. Example If a local government
permits a religious group to use a public building for meetings,
this action is permissible as long as non religious groups are
afforded the same privilege. The key is that the government
must not appear to endorse or promote religious activities.
No excessive entanglement The action must not result in
excessive entanglement between the government and religion.
This principle prevents the government from becoming too
involved in religious affairs, particularly in financial
relationships where monitoring might interfere with religious
autonomy. Example in Lemon V Kurtzman,
state aid to religious schools was found to lead to excessive
entanglement as the state would have had to supervise how funds
were used, thereby entangling itself and religious
instruction. Criticism and evolution The
Lemon test has faced criticism over the years for being overly
rigid and leading to inconsistent rulings,
particularly in cases involving religious symbols or government
funding for religious activities.
Critics argue that the test fails to account for the
complexity of cases where religion and government
naturally overlap, such as the placement of religious symbols
on public property or funding for faith-based social services.
In response to these criticisms, the Supreme Court has developed
alternative frameworks or, in some cases, bypass the Lemon
test entirely. For instance, in cases involving
religious symbols, the Court has sometimes relied on historical
context or the symbolic meaning of the display rather than
strictly applying the Lemon test.
Nonetheless, the test continues to serve as a key guide in
Establishment Clause cases shaping the legal landscape
surrounding the separation of church and state. 3 The Free
Exercise Clause The Free Exercise Clause guarantees
individuals the right to practice their religion freely
without government interference. It protects religious beliefs
and practices as long as they do not conflict with significant
public interests, such as public health, safety, or the rights of
others. The clause ensures that
individuals can observe religious customs and rituals
without fear of legal penalties, provided their practices do not
violate neutral laws of general applicability.
Neutral laws of general applicability The Free Exercise
Clause protects religious practices unless they are in
direct conflict with laws that apply equally to everyone and
serve a legitimate government interest.
The government may regulate religious practices if doing so
is necessary to address public health, safety, or welfare
concerns. However, laws that specifically
target religious practices are subject to strict scrutiny and
are likely to be struck down. G Case Employment Division 5.
Smith, 1990 in Employment Division 5 Smith, the Supreme
Court ruled on a case involving 2 Native American men who were
fired from their jobs for using peyote, a hallucinogenic drug,
as part of a religious ceremony. When the men applied for
unemployment benefits, they were denied due to their dismissal
for drug use, which was prohibited by state law.
The men argued that this denial violated their right to freely
exercise their religion. The Supreme Court held that the
state's prohibition on peyote was a neutral law of general
applicability, meaning it applied equally to all citizens
and did not specifically target religious practices.
The Court ruled that as long as the law is neutral and generally
applicable, it does not violate the Free Exercise Clause, even
if it incidentally burdens religious practices.
This ruling significantly limited the scope of the Free
Exercise Clause, making it easier for governments to
justify regulations that might indirectly burden religious
practices, so long as the law applies universally and serves a
legitimate public interest. Controversy and legislative
response The Smith decision was highly controversial and sparked
backlash from religious groups, civil rights organizations, and
legal scholars. Critics argued that the ruling
weakened religious protections by allowing neutral laws to
burden religious practices without adequate justification.
The decision also raised concerns about the
disproportionate impact such laws could have on religious
minorities, who might be more likely to engage in practices
that differ from mainstream societal norms. 4 Religious
Freedom Restoration Act RFRA In response to the Smith ruling,
Congress passed the Religious Freedom Restoration Act RFRA in
1993. RFRA sought to restore the
broader protection for religious practices that had existed prior
to the Smith decision. The law aimed to ensure that
religious exercise would not be unduly burdened by government
regulations unless there was a compelling reason to do so.
RFRA Requirements RFRA imposes 2 key requirements on the
government. Compelling Government Interest
The government must demonstrate that any law or regulation that
burdens religious exercise serves a compelling interest,
such as public safety or national security.
This is a much stricter standard than the one established in
Smith and ensures that only the most critical government
interests can justify a burden on religious practices.
Least restrictive Means The government must also show that
it has chosen the least restrictive means of achieving
its goal. This ensures that the government
explores alternatives that impose a lesser burden on
religious practices before implementing regulations that
interfere with religious freedom.
TK's Burwell V Hobby Lobby Stores, Incorporated 2014 In
Burwell V Hobby Lobby, the Supreme Court addressed the
question of whether the Affordable Care Act's mandate
requiring employers to provide contraceptive coverage in their
health insurance plans violated the religious beliefs of closely
held corporations. Hobby Lobby, a for profit
corporation, argued that the mandate imposed a substantial
burden on the owner's religious beliefs.
The court ruled in favor of Hobby Lobby, holding that the
contraceptive mandate violated RFRA by imposing a substantial
burden on the company's free exercise of religion.
The Court also found that the government had not demonstrated
that the contraceptive mandate was the least restrictive means
of achieving its goal of providing access to
contraception. This ruling expanded the
application of RFRA to for profit corporations and
highlighted the tension between religious freedom and other
societal interests, such as reproductive health.
Implications of RFRA The passage and application of RFRA have had
a profound impact on religious freedom jurisprudence in the
United States. While RFRA is seen by many as a
crucial tool for protecting religious liberty, it has also
been criticized for enabling individuals and businesses to
claim religious exemptions from laws that promote broader
societal goals, such as anti discrimination protections.
The Establishment Clause and the Free Exercise Clause together
form the core of religious freedom in the United States,
reflecting a careful balance between government neutrality
and religious matters and the protection of individual
religious practices. These causes have evolved
through landmark Supreme Court cases and legislative action
such as RFRA, which has expanded the legal landscape surrounding
religious freedom. 11.4 Freedom of Association and Assembly The
1st Amendment of the US Constitution guarantees citizens
the right to freely associate and assemble.
These rights are fundamental to democratic participation,
ensuring that individuals can come together for political,
religious, and social purposes and express their views
collectively. The rights of association and
assembly are not just about individual freedoms, but also
about enabling collective actions that promote the free
exchange of ideas, support social movements, and safeguard
against tyranny. One.
Freedom of association. Freedom of association allows
individuals to join or form groups such as political
parties, labor unions, religious groups, or advocacy
organizations to pursue shared goals.
This right enables people to amplify their voices, engage in
collective action, and organize to influence public policy.
The ability to freely associate is vital to democratic
governance because it fosters pluralism and provide citizens
with a means to challenge authority.
Advocate for their interests. Importance of Freedom of
Association The right to freely associate is a crucial element
of political participation. It enables individuals to pool
resources, share ideas, and work together to effect change.
In the realm of politics, this includes the formation of
political parties and grassroots movements that can influence
government decisions, ensuring a diversity of perspectives in
policy making. In the workplace, freedom of
association allows employees to organize into labor unions to
collectively bargain for better wages, working conditions, and
benefits. Socially, it empowers advocacy
groups to mobilize support for issues ranging from civil rights
to Environmental Protection. Key Case N Double ACPV Alabama,
1958 The Supreme Court's decision in N Double ACPV
Alabama is a landmark case in protecting the right to freedom
of association. Alabama sought to compel the N
double ACP National Association for the Advancement of Colored
People to disclose its membership lists as part of an
effort to restrict its activities in the state.
The N Double ACP argued that this requirement would expose
its members to harassment, intimidation, and violence,
effectively chilling their right to freely associate for
political advocacy. The court ruled in favor of the
N Double ACP, holding that forcing the organization to
disclose its membership lists would infringe on its members
freedom of association. The court recognized that the
right to associate freely was essential to protect individuals
from retaliation, particularly when engaging in controversial
or politically sensitive advocacy.
This decision affirmed that individuals have the right to
associate without fear of persecution, reinforcing the
role of groups like the N Double ACP in advancing civil rights
expansion and impact. Following N double ACPV Alabama,
the right to freedom of association has been extended to
various contexts. The decision is critical for
protecting advocacy groups, political organizations, and
even social movements from state interference.
This protection ensures that citizens can organize without
fear of reprisal, even when their activities challenge the
status quo or promote unpopular causes.
Freedom of association also plays a significant role in
protecting private groups, such as labor unions or religious
organizations, from government intervention.
For example, unions are protected under this right,
allowing them to organize workers to negotiate
collectively with employers. Similarly, private religious or
political groups are safeguarded from state intrusion into their
membership or internal affairs. However, freedom of association
is not absolute. The government may impose
restrictions on associations that are deemed harmful to
public order or safety, such as criminal organizations or
terrorist groups. Additionally, private
organizations may sometimes exclude individuals if doing so
is essential to maintaining the group's ideological or mission
based integrity, a principle that has been upheld in cases
involving membership disputes within private organizations. 2
Freedom of Assembly Freedom of assembly is closely linked to
the right of association and allows individuals to gather
peacefully for purposes of protest, demonstration, or
public expression. This right is essential in a
democracy, providing a mechanism for citizens to express their
views, petition the government, and mobilize public support for
causes. It is especially vital in times
of social or political unrest, when peaceful demonstrations
serve as a forum for marginalized or dissenting
voices to be heard. The role of freedom of assembly
and democracy The right to assemble has historically played
a central role in democratic movements, enabling people to
come together to demand political change, protest in
justices, or celebrate shared victories.
Whether in labor strikes, civil rights marches, or environmental
protests, the right to assemble gives people the collective
power to influence public opinion and government policy.
Assembly can take many forms, including public rallies,
protests, parades, and even sit insurance.
These gatherings are often symbolic of larger movements and
are used to draw attention to issues that may otherwise be
ignored by those in power. Freedom of assembly provides a
vital outlet for dissent, ensuring that minority
viewpoints have a place in public discourse.
Key case De Yongvi, Oregon, 1937.
In Dejong of the Oregon, the Supreme Court addressed whether
the state could criminalize participation in peaceful
assemblies associated with radical political movements.
Dirk Dejong had been arrested and convicted under Oregon's
criminal syndicalism law for attending a Communist Party
meeting that advocated for labor strikes and other forms of
political protest. He challenged his conviction,
arguing that the law violated his right to peacefully assemble
and express political views. The Supreme Court ruled in
Dejong's favor, holding that the right to peaceful assembly is
fundamental to a functioning democracy and is protected by
the 1st Amendment, even for individuals expressing unpopular
or controversial ideas. The court emphasized that
peaceful political assembly could not be criminalized merely
because the group's ideas or affiliations were considered
radical or subversive. This case was pivotal in
affirming that freedom of assembly applies to all
individuals, regardless of their political affiliations or the
nature of their viewpoints, as long as the gathering remains
peaceful. The ruling reinforced that the
right to assemble is crucial to maintaining a democratic society
where diverse opinions can be expressed and debated.
Time, place, and manner restrictions.
While the right to assemble is constitutionally protected, it
is not absolute. Governments can impose
reasonable time, place, and manner restrictions on
assemblies to ensure public safety, protect property, and
prevent undue disruption. These restrictions must be
content neutral, meaning they cannot target a group based on
the message it wishes to convey. For example, while a city might
limit the hours during which protests can be held to ensure
public order, it cannot restrict protests based on the group's
political stance or cause. Key case.
Ward V Rock Against Racism 1989 In Ward V Rock Against Racism,
the Supreme Court upheld New York City's regulations
governing the volume of amplified music at concerts in
Central Park, citing public interest in controlling noise
levels and maintaining order. The Court ruled that the city's
sound regulation was a valid time, place, and manner
restriction as it was applied neutrally without regard to the
content of the performance. This case illustrates that while
the right to assemble and express ideas is protected,
governments can impose limitations as long as they do
not discriminate based on the content of the speech and the
restrictions serve a legitimate public interest.
Modern issues and freedom of Assembly In recent years, the
rise of social media and online organizing tools has transformed
how people exercise their right to assemble.
Large scale protests can now be organized in a matter of hours
through online platforms, raising new challenges for
authorities and managing these gatherings and ensuring public
safety. The role of social media in
facilitating assembly has expanded the reach of protest
movements, allowing activists to coordinate across borders and
mobilize support globally. However, concerns have also
arisen over the increasing militarization of police
responses to protests and the use of surveillance technologies
to monitor protesters. Such practices have sparked
debates about the balance between ensuring public safety
and protecting the rights of individuals to assemble and
express dissent without fear of excessive government
interference. The rights of association and
assembly are cornerstones of the 1st Amendment, essential for
fostering political participation, social movements,
and public discourse in a democratic society.
Freedom of association allows individuals to organize,
advocate, and pursue collective action, while freedom of
assembly enables people to gather peacefully and express
their views publicly. Summary of Chapter 11 First
Amendment Rights Chapter 11 delves into the fundamental
protections provided under the 1st Amendment, which include
freedom of speech, freedom of the press, freedom of religion,
and the rights to association and assembly.
These rights are critical to ensuring democratic
participation, protecting individual expression, and
maintaining a healthy balance between the government and the
citizenry. Here's a breakdown of each
section covered in the Chapter 11.1.
Freedom of Speech This section explores the historical and
philosophical foundations of free speech, tracing its roots
back to ancient Greece and the Enlightenment.
The right to free speech is essential for democratic
governance in the exchange of ideas it covers.
Protected speech. Most speech, including
political, artistic, and even offensive speech, is protected.
Unprotected speech categories like obscenity, defamation,
incitement of violence, and fighting words are not protected
symbolic speech. Nonverbal actions conveying a
message like flag burning are protected.
Time, place, and manner restrictions.
The government may regulate when, where, and how speech is
delivered, provided the restrictions are content
neutral. Hate speech and offensive
speech. Even hate speech is generally
protected unless it incites violence or constitutes a true
threat. Speech in schools and
universities. While students and educators
retain free speech rights, schools may limit speech that
disrupts the educational process.
Contemporary issues, free speech on social media platforms,
political speech and campaign finance, and the debate over
cancel culture are modern challenges to the boundaries of
free speech. 11.2 Freedom of the press Freedom of the press
safeguards the right of the media to report on government
actions and inform the public. This section covers historical
context from the press's role in colonial America to its modern
day function as a government watchdog.
Scope of press freedom Press freedom extends to all media
forms and prior restraint. Government censorship before
publication is generally prohibited.
Defamation and libel While the press is protected, it is not
immune from lawsuits for false statements that harm
individuals. Reputations.
Digital Press The rise of online journalism and citizen reporting
has reshaped press freedom and raised new challenges regarding
accountability and misinformation. 11.3 Freedom of
Religion, Establishment and Free Exercise Clauses Religious
freedom is protected by two key clauses of the 1st Amendment.
The Establishment Clause prevents the government from
endorsing or establishing any religion, maintaining a
separation between church and state.
Key case Angle V. The tally reinforced that public
institutions, such as schools, must remain neutral in religious
matters. The Lemon Test, a three-part
test developed to assess if government actions violate the
Establishment Clause. The Free Exercise Clause
protects individuals rights to practice their religion without
government interference, but not all religious practices are
exempt from regulation. T Case Employment Division 5
Smith established that neutral laws of general applicability do
not violate the Free Exercise Clause, even if they burden
religious practices. Religious Freedom Restoration
Act RFRA reinstated stricter scrutiny on government actions
that burden religious exercise. 11.4 Freedom of Association and
Assembly This section examines the importance of the rights to
freely associate with others and to assemble peacefully.
Freedom of association protects the right to form and join
groups such as political parties, unions, and advocacy
organizations. T Case and Double ACPV Alabama
affirmed that forcing an organization to disclose its
membership violates the freedom of association.
Freedom of assembly guarantees the right to gather for
protests, demonstrations, and public expression.
Chi Case de Young Avi, Oregon established that peaceful
assembly as a cornerstone of democracy, even for unpopular or
controversial views. Time, place, and manner
Restrictions. While the right to assemble is
protected, it is subject to reasonable regulations to
maintain public order and safety.
Conclusion Chapter 11 underscores the critical role of
the 1st Amendment in maintaining a free and open society, Whether
through speech, press, religion, or assembly, these rights
provide individuals and groups with the tools to participate in
democracy, challenge the government, and advocate for
change. As societal norms and
technologies evolve, courts continue to refine the scope and
application of these rights to ensure they remain relevant and
robust in modern America. The First Amendment guarantees a
range of essential freedoms, including speech, press,
religion, and assembly, which form the bedrock of American
democracy. These rights enable individuals
to express themselves, challenge government actions, practice
their beliefs, and organize for collective action.
While these rights are broadly protected, they are not
absolute, and courts have developed a nuanced body of case
law to balance individual freedoms with the government's
interests in maintaining order and protecting the rights of
others. As society evolves and new
challenges emerge, the interpretation and application
of these First Amendment rights will continue to play a central
role in shaping the American legal landscape.