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Constitutional Law: First Amendment: Religion (Establishment and Free Exercise)

Constitutional Law · Work through your exam, one topic at a time.

All guide sections

First Amendment: Religion (Establishment and Free Exercise)

What this domain tests

The exam tests the Religion Clauses: government neutrality, religious accommodation, and the current shift away from Lemon toward historical practices and status-based nondiscrimination.

Core rules

  • Establishment Clause: Lemon is no longer the governing test. Kennedy v. Bremerton (2022) directs attention to historical practices and understandings; coercion is relevant but not the sole criterion.
  • School prayer: government-sponsored prayer and religious exercises in public schools are invalid, as in Engel and Santa Fe.
  • Free Exercise: Smith upholds neutral, generally applicable laws even if they burden religion.
  • Exceptions to Smith: government may not discriminate against religious status or belief; Trinity Lutheran and Espinoza bar excluding religious schools from general public benefits based on religious status.
  • RFRA: federal statute provides broader protection than Smith; state RFRAs vary.
  • Ministerial exception: churches control selection of ministers without government interference.

Worked example

A state creates a general grant program for school safety but excludes religious schools from applying. Under Trinity Lutheran and Espinoza, excluding a religious institution from a general benefit because of its religious status triggers strict scrutiny and likely violates Free Exercise. The result differs if the funding is used for religious instruction and the program requires a status/use distinction.

Traps

  • Lemon is not the current Establishment test, but older case outcomes may still inform history.
  • Smith remains good law for neutral, generally applicable laws, with exceptions.
  • Free Exercise does not create a general right to ignore neutral tax or health laws.
  • Accommodation can raise Establishment concerns if it coerces or favors religion.