CONSTITUTIONAL LAW
Fall 2006, W.B. Fisch
Assignment #50

[Chapter 17.  RELIGION AND THE CONSTITUTION]

2. The Free Exercise of Religion

• SHERBERT V. VERNER, p. 1822 (1963): the modern leading case
• what regulation, with what purpose?
• does the law (or other state action) impose a substantial burden on the exercise of the addressee's religion?
• if so, is it necessary for the protection of a compelling state interest?
• is the state's interest here compelling?
• is there any less burdensome alternative means available?
• compare Braunfeld v. Brown (1961), cited p. 1823: Sunday closing laws, sustained
• interest in providing a family day of rest
• uniformity required to assure maximum benefit (?)
• is this case adequately distinguished from Sherbert?
• compare Reynolds v. U.S. (1879): criminal prosecution for bigamy, against Mormons who practiced it with religious sanction, sustained
• is the state punishing religious belief?
• are practices as such protected under the First Amendment?
• Erosion of the Sherbert standard, back to Reynolds?
• EMP'T DIV., DEPT. HUM. RES. OF OREGON V. SMITH, p. 1829 (1990)
• does the state prescribe a religion-neutral rule of conduct?
• if so, no free exercise problem?
• is it crucial that it was a criminal law prohibiting the practice?
• would the case have been decided differently under Sherbert/Lee?
• if all the FE clause does is to prohibit discrimination against religion, are the two religion clauses redundant?
• Religious Freedom Restoration Act of 1993, pp. 1843-45: can Congress overrule the Court?
• CITY OF BOERNE V. FLORES, p. 1206 (1997) (RFRA as applied to state and local agencies)
• CUTTER V. WILKINSON, Supp. p. 101 (2005), and RILUPA: can Congress make the Sherbert standard applicable to entities subject to its regulatory powers?
• Federal agencies
• Agencies and entities receiving federal funding (spending power!)