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Free Exercise Clause

Free Exercise Clause - Free Exercise Clause Free Exercise...

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Free Exercise Clause : Free Exercise clause can’t be used to challenge a neutral law- Advantages and disadvantages of Smith vs. Oregon- majoritarian if the legislature adopts a law, the courts won’t create exemptions to it. If court creates exemptions for something, ie drug laws, for religion, then it can be used. However, if something is neutral then it can be used. Many neutral laws burden religion and there are no constitutional provisions, whatsoever. 5/4 is the same as 9/0 in court, duh. If the law is general applicability, then it must meet strict scrutiny. P 1478 in casebook. Why did the supreme court declare this law unconstitutional? The law’s intent was to stop the religion and wasn’t explicity broad to kill animals in other regards except to kill animals. Motivated by a desire and fear of this religion- Santaria-failed strict scrutiny Religious Freedom restoration act and its demise- As applied to State and local gov’t – unconstitutional b/c of the section 5 of 14 th ammendmentS 1993- cosigned by Ted Kennedy and signed by Clinton- described on page 1477 any law that substantially burdens religion must meet strict scrutiny- any government practice, etc. wanted by statute to restore religious freedom to what it has previously been in the constitution. Congress couldn’t respond to Roe v Wade by casting federal statute illegalizing abortion, but Congress by statute can provide more rights to the constitution and expand rights by statute. 9 th Ammendment- enumeration of some rights, doesn’t diminish other rights. Congress can pass federal statutes providing rights- ie private entities can’t discriminate because of race, etc. In 1997- City of Burny vs. Flores- Religious Freedom restoration act = unconstitutional in state and local government. Mentioned in line 4 of page 1478 Church had outgrown existing facilities, building had been classified a historic landmark and wasn’t allowed by the city to be torn down to create a new structure- Flores sued city under religious freedom restoration act- prior to employment division vs. smith-
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  • Spring '08
  • Charney
  • Supreme Court of the United States, First Amendment to the United States Constitution, Separation of church and state

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