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CONSTITUTIONAL LAW II RELIGION CLAUSES 1. Overview a. Only Bill of Rights Amendment that applies only to congress. Theoretical incorporation exists, but S. Ct. has ignored it. b. Why is so much jammed into first amendment, could have free exercise and not have free speech with the same outcome. You need speech to communicate religion. c. Free exercise/establishment = conflicting pressures. i. Taxing a church would prohibit church’s free exercise but not allowing tax would help establish church’s religion over that of an atheist. d. Harmonizing the two clauses i. The single goal is to protect an individual’s religious freedom ii. Free Exercise: Preventing limitations of that freedom through penalties. iii. Establishment: Preventing limitation of that freedom arising from gov. aid to religion. ESTABLISHMENT 1) “Congress shall make no law respecting an establishment of religion” 2) History a. In England there was an established church, framers wanted to prevent this b/c they saw it as a limitation on freedom. b. Bs similarity to 9 th and 10 th amendment, idea that fed. gov. was not people’s government, but a required necessity. c. Some justices think state establishment of religion ok, just not national establishment. i. B/C states had established religions up until 1838, so framers intent . ii. There is no liberty interest in having established religion, so how can one incorporate establishment clause in 14 th . iii. Brennan’s Response: The more establishment we have the less liberty we have. 3) Defining Religion – (All Selective Service, not Con Law Cases) a. Court defines religion at an individual’s belief in relation to a supreme being, but NOT political or philosophical viewpoints or merely a personal code. b. Court also says a religious belief is one that is sincere and meaningful and parallels a traditional belief in God. i. Problematic ii. Moral theory is different than religious ones. How can someone’s ethics parallel a belief in God. A purely secular belief is not religious. (US v. Seeger, Seeger did not believe in traditional God. Court characterizes provision of Selective Service Act exempting combat for those who conscientiously believe warfare to be wrong thanks to religious training as not requiring a belief in a tradition religion, only something that parallels religion.) iii. Deeply held beliefs resting on moral, ethical or religious principle cannot be differentiated from theistic beliefs. (US v. Welsh, Welsh had strong moral beliefs opposing war, but he struck the words “religious belief” from the Selective Service Form, the court held he should have been permitted an exemption based on his views of public policy or strongly held beliefs about world affairs. (War heavily opposed at this time))
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(Gillete v. US, court interprets SSA as forcing person to be against all wars, not just a particular war like Vietnam. Stupid, why can’t a religious be for some wars and not others. Should not be a theological issue. To
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