Individual rights - Freedom of religion and separation of ch...

Learning Outcomes

This article explores how the First Amendment protects religious liberty through the Free Exercise Clause and the Establishment Clause, and how those provisions apply to the states through the Fourteenth Amendment. It explains the distinction between absolute protection for religious belief and qualified protection for religiously motivated conduct, the tiers of scrutiny that govern laws burdening religion, and how to determine when a statute is neutral and generally applicable versus when it targets religious practice and triggers strict scrutiny. It also examines how courts evaluate government involvement with religion using the Lemon test, endorsement and coercion principles, and history-and-tradition analysis, with particular attention to funding programs, religious symbols, and government-sponsored prayer. In addition, it discusses bar‑relevant doctrines such as the ministerial exception, RFRA and state mini‑RFRAs, equal access for religious speakers in public and limited public forums, and school-related issues including classroom prayer, moments of silence, religious clubs, and teaching about religion. Finally, it details exam strategies for spotting which Religion Clause is implicated, selecting the correct analytical test, and eliminating distractor answers on MBE-style fact patterns.

MBE Syllabus

For the MBE, you are required to understand the First Amendment’s Religion Clauses and their interaction with other constitutional rights, with a focus on the following syllabus points:

• Distinguishing the Free Exercise Clause from the Establishment Clause and recognizing when each is implicated.
• Analyzing government regulations that burden religious conduct, including the difference between laws targeting religion (strict scrutiny) and neutral, generally applicable laws (rational basis).
• Identifying when religious exemptions are constitutionally required (e.g., ministerial exception, some unemployment-benefits cases, Amish schooling).
• Recognizing the scope and limits of the ministerial exception to employment laws.
• Evaluating government action under the Establishment Clause using the Lemon test, endorsement and coercion concepts, and historical-practice analysis.
• Assessing the constitutionality of financial aid programs that benefit religious institutions, particularly schools and colleges.
• Evaluating religious activities and symbolism in public schools and other government settings.
• Applying neutrality and viewpoint-discrimination principles when government controls funding programs and access to public or limited public forums.
• Spotting impermissible sect preferences and government actions that favor religion over nonreligion, or one faith over others.
• Understanding how RFRA and state “mini-RFRAs” expand protection for religious exercise beyond the constitutional minimum in federal and state contexts.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A state law prohibits the ingestion of peyote for any reason. Members of a specific religious group, whose sincere beliefs require peyote consumption in rituals, challenge the law under the Free Exercise Clause. What is the likely outcome?
   1. The law is unconstitutional as applied to the group because it burdens a sincere religious practice.
   2. The law is unconstitutional as applied to the group unless the state shows it is necessary to achieve a compelling interest.
   3. The law is constitutional because it is a neutral law of general applicability that does not target religion.
   4. The law is constitutional only if peyote ingestion poses a significant health risk.
2. A city council begins its legislative sessions with a brief, non-denominational prayer delivered by various local clergy invited on a rotating basis, open to all faiths present in the city. An attending citizen sues, claiming this practice violates the Establishment Clause. What is the strongest argument for upholding the practice?
   1. The prayers are non-denominational and do not proselytize.
   2. The practice is consistent with the long history and tradition of legislative prayer in the country.
   3. Attendance at the council meetings is voluntary, so there is no coercion.
   4. The primary effect of the prayers is to solemnize the occasion, not advance religion.
3. Under the Lemon test, a government action violates the Establishment Clause if it fails which of the following criteria?
   1. It must have a secular purpose, its primary effect must neither advance nor inhibit religion, and it must not lead to excessive government entanglement with religion.
   2. It must be necessary to achieve a compelling government interest and be narrowly tailored.
   3. It must not coerce religious participation or endorse a particular religion.
   4. It must be neutral towards religion and generally applicable to all citizens.

Introduction

The First Amendment, applied to the states through the Fourteenth Amendment, contains two provisions that structure the relationship between government and religion: the Establishment Clause and the Free Exercise Clause.

Key Term: Establishment Clause
The First Amendment provision prohibiting government from making any law “respecting an establishment of religion,” understood as forbidding government sponsorship, financial support, or active involvement in religious activity.

Key Term: Free Exercise Clause
The First Amendment provision prohibiting government from making any law “prohibiting the free exercise” of religion, understood as protecting religious belief absolutely and religiously motivated conduct to a qualified extent.

These clauses pull in different directions. The Free Exercise Clause demands space for religious practice; the Establishment Clause requires government neutrality and a degree of separation between church and state. Many bar questions test the tension between these values—for example, when religious groups seek access to public funds or facilities, or when the state regulates conduct that some people perform for religious reasons.

A good MBE approach is:

• Ask which clause (or both) is implicated: Is someone alleging interference with religious practice (Free Exercise), or is government arguably promoting or aligning itself with religion (Establishment)?
• Identify the type of law or program: Is it neutral and generally applicable, or does it single out religion for special burdens or benefits?
• Apply the correct standard: strict scrutiny, rational basis, or one of the Establishment Clause tests.
• Remember that Free Speech and Equal Protection principles often interact with the Religion Clauses in funding and forum cases, especially where religious speakers are treated differently from secular speakers.

Before turning to each clause in detail, one more foundational concept is useful in forum and funding cases.

Key Term: Viewpoint Discrimination
A type of content-based regulation in which government allows speech on a topic but favors or disfavors particular viewpoints on that topic (e.g., permitting discussions of family values but excluding religious viewpoints); it is almost always unconstitutional in public or limited public forums.

With these structural ideas in mind, the rest of the article builds the doctrinal tools needed to evaluate typical MBE fact patterns.

The Free Exercise Clause

The Free Exercise Clause protects the freedom to hold religious beliefs and, to a degree, the freedom to act in accordance with those beliefs.

What Counts as “Religion” and Whose Beliefs Are Protected

The Supreme Court has deliberately avoided a narrow definition of “religion.”

• A belief does not have to involve a traditional deity or belong to a formal church.
• Sincere, deeply held beliefs occupying a place in a person’s life parallel to that of traditional religious convictions can qualify.
• Beliefs need not be “reasonable,” familiar, or widely shared.

Key Term: Religious Belief
A sincerely held belief about ultimate questions of life, morality, or the divine; courts may test sincerity but may not judge the truth, validity, or reasonableness of the belief.

Courts cannot declare religious doctrines “false.” For example, the state may not prosecute a religious leader for “fraud” on the theory that “he should have known that his god does not exist” and therefore his assurances of divine help were unreasonable. That kind of reasoning rests on a governmental judgment about the truth of religious belief, which Free Exercise forbids.

However, courts may inquire into sincerity. A defendant cannot immunize ordinary fraud or tax evasion simply by labeling it “religious.” Evidence such as abrupt conversions conveniently timed to litigation, contradictions between professed beliefs and conduct, or admission of fabrication may support a finding that claimed beliefs are not sincere.

Courts also cannot require membership in a recognized denomination. A lone believer with idiosyncratic views can invoke Free Exercise so long as those views are sincerely held and religious in character. Conversely, purely political, philosophical, or ethical commitments that do not address “ultimate concerns” in a religion-like way may fall outside Free Exercise protection, even if they are deeply held.

The Supreme Court’s statutory decisions regarding conscientious objectors during wartime illustrate how broadly “religion” can be understood. In construing a statute protecting those who, “by reason of religious training and belief,” are opposed to war, the Court read “religious” to include non-theistic beliefs that occupy a place in a person’s life similar to traditional religion. That logic strongly influences how courts approach the constitutional question: the focus is on depth and centrality, not on labels or orthodoxy.

Belief vs. Conduct

The freedom to believe is absolutely protected. Government cannot punish or reward individuals based on their religious beliefs, force anyone to affirm or deny a particular creed, or require religious tests for public office.

Key Term: Religious Conduct
External actions or omissions motivated by religious belief (e.g., worship practices, observance of holy days, ritual use of substances), which receive constitutional protection but may be regulated under neutral, generally applicable laws.

The freedom to act on religious beliefs is more limited. Government may regulate conduct—even religiously motivated conduct—under certain conditions:

• Government may not regulate conduct because it is religious, or because it disagrees with the religious message.
• Government may regulate conduct for secular reasons under neutral, generally applicable rules, even if religious practice is incidentally burdened.

Classic exam traps include assuming that any burden on sincere religious conduct automatically triggers strict scrutiny. Under modern doctrine, that is not true.

The distinction between belief and conduct also explains why certain practices cannot be mandated or forbidden. Government may not compel religious speech (such as reciting a prayer or oath affirming belief in God) because that directly targets belief. In contrast, government can require compliance with safety codes, tax laws, and criminal prohibitions even when they interfere with religiously motivated behavior, so long as those rules do not single out religion.

Standards of Review for Laws Burdening Religious Conduct

The level of scrutiny depends primarily on whether the law is neutral and generally applicable.

Key Term: Neutral Law of General Applicability
A law that does not target religion on its face or in purpose and applies broadly to comparable conduct, regardless of religious motivation.

Key Term: Strict Scrutiny
A demanding standard of review under which a law must be narrowly tailored (or necessary) to achieve a compelling governmental interest. Laws rarely survive this test.

Key Term: Rational Basis Review
A deferential standard of review under which a law need only be rationally related to a legitimate governmental interest.

Two main categories matter for the MBE:

1. Laws Targeting Religion or Religious Practice (Strict Scrutiny)

If a law singles out religion, a specific faith, or religiously motivated conduct, or if it is applied in a way that reveals hostility to religion, the law is subject to strict scrutiny.

• The government must show the law is necessary (or at least narrowly tailored) to achieve a compelling interest and that no less restrictive alternative would suffice.
• This is “fatal in fact” in almost all cases.

Examples:

• An ordinance that prohibits animal slaughter “for ritual or sacrificial purposes” while permitting comparable secular slaughter. This targets Santeria animal-sacrifice rituals and fails strict scrutiny. (Church of the Lukumi Babalu Aye v. Hialeah.)
• A zoning law that allows daycare centers, community centers, and clubs in a district but excludes “churches, synagogues, and mosques” is facially discriminatory toward religion and presumptively invalid.

Strict scrutiny may also be triggered when a facially neutral law is enforced with clear hostility toward religion, or when the scheme is riddled with secular exceptions but refuses comparable religious ones. A classic example is a licensing or benefits system that grants case-by-case secular exemptions but categorically denies religious exemptions; that kind of asymmetric treatment shows that the law is not truly “generally applicable.”

2. Neutral, Generally Applicable Laws (Rational Basis)

If a law applies to religious and nonreligious conduct alike, with no indication of anti-religious targeting, the Free Exercise Clause does not require religious exemptions. These laws are evaluated under rational basis:

• They are valid if rationally related to a legitimate governmental objective.
• Protecting public health, safety, and welfare almost always qualifies as legitimate.

The leading case is Employment Division v. Smith:

• Oregon criminalized peyote possession and refused unemployment benefits to two workers fired for sacramental peyote use in a Native American church.
• The Court held the neutral criminal law could be applied to religious use without violating Free Exercise.

On an MBE question, once you decide a law is neutral and generally applicable, assume rational basis applies and that there is no constitutional right to an exemption, absent some special context (such as individualized exemptions or the ministerial exception discussed below).

Exam tip:

• Do not be misled by language in Smith about “hybrid rights” (e.g., Free Exercise plus parental rights or free speech). The Court has not used that idea to create a broad new category of strict-scrutiny cases, and the MBE will almost never rest an answer on “hybrid rights.” Focus instead on neutrality and general applicability.

Government Neutrality and Hostility to Religion

Even when a law is facially neutral, Free Exercise can be violated if government officials act with hostility toward religion in applying it.

Government lacks neutrality when:

• Decisionmakers make disparaging comments about religion.
• Officials analogize religious beliefs to past evils (e.g., slavery, the Holocaust) or call them mere “pretext.”
• Religious reasons for conduct are treated worse than comparable secular reasons.

In such circumstances, even a formally neutral law may be subject to strict scrutiny.

Example:

• A civil rights commission described a baker’s religious objections to creating a same-sex wedding cake as akin to defenses of slavery and the Holocaust. The Court held that hostility toward religion tainted the proceeding and violated Free Exercise, even though the anti-discrimination law was facially neutral. (Masterpiece Cakeshop v. Colorado Civil Rights Commission.)

Recent cases also stress that when the government grants numerous secular exemptions but refuses religious exemptions that undermine its claimed interests no more than the secular ones, the law or policy is not “generally applicable” and strict scrutiny applies. For instance, where a city allowed many exceptions to its child-welfare non-discrimination policy but refused to contract with a Catholic agency that declined to certify same-sex couples for religious reasons, the Court found a Free Exercise violation because the government had left itself discretion to make secular exceptions while denying religious ones.

On the exam, look not only at the text of the law but also at:

• The pattern of exemptions.
• Statements and reasoning by officials.
• Whether religious objections are treated uniquely harshly compared to analogous secular objections.

When Are Religious Exemptions Constitutionally Required

Although Smith sharply limited constitutionally mandated exemptions, there remain important, but relatively narrow, contexts where religion receives heightened protection.

Individualized Exemptions and Unemployment Benefits

In several older cases, the Court required states to grant unemployment benefits when individuals lost or refused work because of sincere religious objections:

• A person fired for refusing to work on her Sabbath was entitled to benefits. (Sherbert v. Verner.)
• A worker who quit after his factory converted to military production on religious grounds received benefits. (Thomas v. Review Board.)
• Even a worker not affiliated with a formal denomination but with sincere religious scruples could not be denied benefits. (Frazee v. Illinois.)

These schemes involved individualized, case-by-case determinations about “good cause” for quitting or refusing work. Denying benefits solely because the reason was religious singled religion out for unfavorable treatment and triggered strict scrutiny.

This fits within Smith: when a system allows discretionary secular exceptions, refusing comparable religious exceptions may make the law not “generally applicable” and revive strict scrutiny.

For the MBE, the pattern to recognize is:

• If the statute or program itself is rigid and mechanical (no exceptions of any kind), Smith usually controls: neutral, generally applicable law, rational basis.
• If the statute or program uses a flexible standard (e.g., “good cause,” “undue hardship”) and officials grant secular exceptions but deny religious ones, strict scrutiny is appropriate.

Education of Amish Children

In a narrow but important case, the Court held that Free Exercise, combined with parents’ fundamental right to direct the upbringing of their children, required an exemption for Amish families from a compulsory-schooling law beyond eighth grade. The state’s interest in two extra years of schooling did not outweigh the severe burden on the Amish way of life. (Wisconsin v. Yoder.)

Points to remember for the exam:

• Yoder is highly fact-specific and rests partly on the unique internal organization and track record of the Amish community.
• The decision is often described as involving “hybrid rights” (Free Exercise plus parental control of education), but it has not been a springboard for broad new exemptions.
• You should be cautious about extending Yoder to other groups or contexts; the Court has treated it as an exception, not a general rule.

Government Benefits and Medical Refusals

By contrast, a state may structure benefits using neutral criteria even if those criteria conflict with religious choices.

Example:

• A city amends its death-benefit plan to deny benefits in cases where a worker dies after unreasonably refusing prescribed medical care, without singling out religious motives.
• An employee declines a medically necessary blood transfusion because of sincere religious beliefs and dies; the city denies the benefit based on the refusal.

Because the rule applies to all unreasonable refusals of care, regardless of motivation, it is a neutral law of general applicability. The denial is reviewed under rational basis, and protecting the fiscal integrity of the plan is a legitimate interest. The Free Exercise Clause does not require the city to carve out a religious exception.

A related area, especially in family-law fact patterns, is parental refusal of medical treatment for children. States can and often must override parental religious objections to life-saving treatment for minors, based on the compelling interest in preserving children’s lives; courts treat those cases as involving the child’s rights and state parens patriae power more than Free Exercise exceptions.

Free Exercise and Anti-Discrimination Laws

Neutral, generally applicable civil-rights laws usually may be applied to religious actors even when compliance conflicts with religious beliefs—for example, a religious business owner required to comply with neutral anti-discrimination rules in serving the public. Free Exercise does not usually create a constitutional exemption from such laws. The main exceptions are:

• Where the enforcement process displays hostility to religion.
• Where the legal scheme is studded with discretionary secular exceptions that are denied to religious claimants.

On MBE questions involving wedding vendors, housing providers, or employers facing discrimination claims, ask:

• Does the law itself single out religious conduct, or does it apply across the board?
• Did officials treat religious reasons worse than analogous secular reasons?
• Did the enforcement process display bias or animus?

If the answer to all of these is “no,” the law is likely valid under Smith, even if religious practice is burdened.

Statutory Protection: RFRA and State RFRAs

After Smith, Congress enacted the Religious Freedom Restoration Act (RFRA), attempting to restore strict scrutiny for all laws substantially burdening religious exercise. RFRA provides that government may not substantially burden a person’s exercise of religion, even through a rule of general applicability, unless it satisfies strict scrutiny.

The Supreme Court held:

• RFRA is valid as applied to the federal government, because Congress can choose to accommodate religion within its own operations.
• RFRA is invalid as applied to state and local governments, because Congress exceeded its Fourteenth Amendment enforcement power by attempting to redefine the scope of Free Exercise rights. (City of Boerne v. Flores.)

Key Term: RFRA (Religious Freedom Restoration Act)
A federal statute requiring the federal government (and, where applicable, federal officers) to meet strict scrutiny when it substantially burdens religious exercise; it does not bind state or local governments unless they enact similar laws.

Congress and the Court have also extended similar protection to certain contexts through specific statutes (e.g., the Religious Land Use and Institutionalized Persons Act (RLUIPA)), particularly in land-use and prison regulations when federal funding is involved.

Many states have enacted their own “mini-RFRAs,” imposing strict scrutiny on state and local burdens on religion as a matter of state law. On an MBE question, unless explicitly told otherwise, assume you are dealing with the federal Free Exercise baseline from Smith and not with RFRA-like state statutes.

RFRA can be exam-relevant when the law at issue is clearly federal (for example, a federal mandate concerning employer-provided insurance). Under RFRA, a closely held corporation in Burwell v. Hobby Lobby Stores was entitled to an exemption from a federal contraceptive mandate because applying the mandate failed strict scrutiny. But that result was statutory, not constitutional; without RFRA, Smith would likely allow the mandate.

Exam tip:

• If the facts mention RFRA or RLUIPA by name, you must apply statutory strict scrutiny even if the relevant law is neutral and generally applicable.
• If the facts do not mention such a statute, apply Smith and ask only whether the law targets religion or is enforced with hostility.

Worked Example 1.1

A state passes a law requiring all children to be vaccinated against measles before attending public or private school. A parent objects based on sincere religious beliefs opposing vaccination. The parent challenges the law under the Free Exercise Clause, seeking an exemption for their child. Assume the vaccination requirement applies equally to all students regardless of religion. Will the parent likely succeed?

Answer:
No. The mandatory vaccination law is a neutral law of general applicability aimed at public health, not at religion. Under Employment Division v. Smith, the state does not need to grant a religious exemption. The law requires only a rational basis (protecting public health), which it easily satisfies. The fact that the parent’s beliefs are sincere and the burden on their religious practice is substantial does not change the constitutional analysis; the political branches remain free to create statutory religious exemptions, but the Free Exercise Clause does not compel them.

The Ministerial Exception

The Religion Clauses jointly create a constitutionally grounded “ministerial exception” to some employment laws.

Key Term: Ministerial Exception
A First Amendment–based rule that bars civil courts from hearing most employment disputes between religious institutions and their “ministers,” in order to protect religious groups’ autonomy in selecting and supervising their religious leaders.

Key points:

• The exception applies based on the role, not the job title. It extends beyond ordained clergy to employees who perform important religious functions, such as teaching the faith, leading worship, or playing a key role in conveying religious doctrine in a parochial school. Cases have applied the exception to teachers designated as “called” or who had substantial responsibility for religious formation of students.
• Courts look at factors such as the employee’s title, training, how the organization holds the person out, and what religious functions the employee actually performs. No single factor is dispositive, and the test is functional rather than formal.
• It is a constitutional limitation, not merely a statutory carve-out, so it cannot be overridden by legislation. Neutral employment laws (e.g., anti-discrimination statutes) must yield when they would intrude into ministerial employment decisions.
• It bars suits such as discrimination, wrongful-termination, and retaliation claims where adjudication would require a court to second-guess a religious organization’s reasons for hiring, firing, or assigning ministers.
• It does not immunize religious institutions from all regulation. Secular contract disputes (e.g., enforcing a promissory note), property disputes governed by neutral principles, or tort claims that do not implicate ministerial selection, duties, or internal church governance may still proceed.

On the MBE, if you see a religious school teacher whose duties include teaching religion, leading prayer, or preparing students for sacraments suing under employment-discrimination laws, think “ministerial exception” and ask whether adjudication would interfere with church autonomy. If yes, the claim is likely barred, regardless of the strength of the discrimination allegation on the merits.

Free Exercise, Speech, and Equal Access

Free Exercise often interacts with Free Speech and Establishment principles when religious groups seek equal access to public resources such as school facilities, student-activity funds, or public parks.

When government creates a forum for private speech, Free Speech doctrine limits how it may control access.

Key Term: Limited Public Forum
Government property or a program opened for specified types of speech or speakers, where the state may impose reasonable, viewpoint-neutral limits on subject matter or class of speakers, but may not discriminate based on viewpoint within the permitted category.

Key Term: Viewpoint Discrimination
A form of content-based discrimination in which the government allows a subject to be discussed but favors or disfavors particular viewpoints on that subject (including religious viewpoints); it is presumptively unconstitutional in public and limited public forums.

Core principles:

• If a public university or school creates a limited public forum for student organizations and provides funding or access on neutral criteria (e.g., recognition of all student groups devoted to extracurricular activities), it may not exclude groups simply because they are religious or because they express religious viewpoints.
• Providing funds or access on a neutral basis does not violate the Establishment Clause. Treating religious speakers equally with secular speakers is normally required, not forbidden.
• Excluding religious speakers or messages because they are religious is usually unconstitutional viewpoint discrimination.

Examples:

• Denying a student religious magazine access to a neutral funding program because its viewpoint is religious constitutes unconstitutional viewpoint discrimination under the Free Speech Clause and is not required (and often forbidden) by the Establishment Clause. (Rosenberger v. University of Virginia.)
• A school district that allows after-school clubs to use school facilities may not exclude a religious club solely because its activities are devotional if comparable secular clubs are allowed. (Good News Club v. Milford Central School.)
• A school district that lets outside groups show films about child-rearing and family values in its auditorium may not exclude a church group’s film series on those topics simply because they are presented from a Christian viewpoint. (Lamb’s Chapel v. Center Moriches Union Free School District.)

By contrast, a school or university may sometimes impose neutral “all-comers” rules (requiring all recognized student groups to accept all students as members) even when such rules burden religious groups’ membership policies, so long as the rule applies equally to all groups and is not targeted at religious organizations.

Worked Example 1.2

A state university provides funding from mandatory student activity fees to various registered student organizations for their publications. The funding guidelines are neutral regarding viewpoint. A registered student religious group applies for funds to publish its magazine discussing religious viewpoints on campus issues. The university denies funding solely because the publication is religious. Does this denial violate the Constitution?

Answer:
Yes. The university created a limited public forum and distributes funds based on neutral criteria. Denying funds solely because of the religious viewpoint is impermissible viewpoint discrimination under the Free Speech Clause. The Establishment Clause does not require excluding religious viewpoints from a neutral funding program; neutrality means religious and secular groups must be treated alike. The denial also burdens free exercise, but the clearest violation is of free speech. The funding scheme is similar to Rosenberger, where the Court held that viewpoint discrimination against religious viewpoints in a student-publications program was unconstitutional.

Worked Example 1.3

A city allows community groups to reserve meeting rooms at the public library for civic, cultural, and educational activities. A secular parenting group holds weekly parenting workshops there. A church asks to hold a weekly meeting on “Christian approaches to parenting” and is denied access because the meetings are “religious in nature.” The church sues. What is the best analysis?

Answer:
The city has created a limited public forum for discussions of parenting and similar topics. Excluding the church’s meetings solely because they are religious constitutes viewpoint discrimination: religious viewpoints on parenting are being excluded while secular viewpoints are allowed. Equal access would not violate the Establishment Clause because the speech is private and the forum is open on neutral terms. The exclusion is unconstitutional. The fact that the content is religious does not convert the meeting into government speech; it remains private speech in a government forum.

The Establishment Clause

The Establishment Clause principally restricts government from establishing, endorsing, or excessively involving itself with religion. Courts use several overlapping approaches to decide whether government has overstepped.

Core Tests and Approaches

Key Term: Lemon Test
A three-part test from Lemon v. Kurtzman for Establishment Clause challenges: government action must (1) have a secular purpose, (2) have a principal or primary effect that neither advances nor inhibits religion, and (3) avoid excessive government entanglement with religion.

In practice, the Court has used a mix of frameworks:

• Lemon test:

  • Still appears in many lower-court and bar-exam analyses, especially for funding programs, school policies, and religious symbols.
  • Failure of any prong (purpose, effect, or entanglement) renders the action unconstitutional.
  • A law with a clearly religious purpose (e.g., “to return prayer to public schools”) flunks the purpose prong.
  • A program whose primary effect is to advance religious instruction (e.g., paying salaries of teachers in religious schools) fails the effect prong.
  • Ongoing detailed government monitoring of religious content (e.g., constant audits of parochial school curricula) can create “excessive entanglement.”

• Endorsement test

  • Asks whether a reasonable observer would view the government action as endorsing or disapproving religion.
  • Commonly used for religious displays and messages.

Key Term: Endorsement Test
An Establishment Clause approach asking whether a reasonable, informed observer would perceive the government’s action as an endorsement or disapproval of religion.

• Coercion test
  • Focuses on whether the government coerces religious participation or observance, directly or indirectly.
  • Especially important in public-school and other captive-audience settings where subtle pressure can be coercive.

Key Term: Coercion Test
An Establishment Clause approach under which government violates the Clause if it coerces individuals to support or participate in religion or its exercise.

• Historical practices and understandings:
  • In some contexts, particularly legislative prayer and long-standing monuments, the Court looks to whether the challenged practice fits within the nation’s historical tradition.
  • Example: Opening legislative sessions with prayer was upheld based on history going back to the First Congress. (Marsh v. Chambers; Town of Greece v. Galloway.)
  • More recently, long-standing war memorials with religious symbolism have been upheld in part because they have secular commemorative meanings over time.

The modern Court has criticized strict application of Lemon in some settings and has emphasized history and tradition in cases involving public monuments and personal religious expression by government employees. Nevertheless, for MBE purposes, you should still be prepared to apply Lemon in classic areas: school policies, government funding of religious schools, and many facially religious laws.

When analyzing a problem:

• Start with Lemon if the issue is school policy, government funds flowing to religious institutions, or recent religious displays erected by government.
• Consider endorsement/coercion when the setting involves students or other captive audiences.
• Use history-and-tradition analysis for legislative prayer and long-standing monuments or practices.

Sect Preference and Favoring Religion

Some government actions are suspect on their face.

Key Term: Sect Preference
Government action that explicitly favors one religious denomination (or religion over nonreligion), which is presumptively invalid and subject to strict scrutiny.

If a law or program:

• Prefers one denomination over others, or
• Favors religion over nonreligion,

it triggers strict scrutiny and is almost always invalid.

Examples:

• A statute creating a special public school district drawn exactly around a particular religious community’s boundaries so that only children from that sect attend it was struck down as an unconstitutional sect preference. (Board of Education v. Grumet.)
• A state policy that allows religious groups to use public school facilities for afterschool activities but excludes atheistic or humanist groups because they are “not religious” also reflects impermissible preference for religion over nonreligion.

By contrast, including religious groups on equal terms with secular groups in neutral programs is not treating religion preferentially; it is required neutrality. On the bar exam, be alert to any law that explicitly names a particular denomination or only provides benefits (or burdens) to “churches” or “religious organizations” without similarly treating nonreligious organizations that are otherwise comparable.

Financial Aid to Religious Institutions

Aid cases are common on the bar exam. The key is to identify who is directly aided and how the aid reaches religious institutions.

General principles:

• Aid with a secular purpose may be constitutional if:

  • The program is neutral toward religion, making aid available to religious and secular beneficiaries on equal terms, and
  • Any benefit to religion results from private choices, not government steering.

• Direct subsidies for religious indoctrination are highly suspect; neutral, indirect assistance is more defensible.

Aid to Colleges and Hospitals

Government aid to religiously affiliated colleges or hospitals is often upheld if structured to support secular functions (e.g., general operating funds, facilities, research grants) and if there is no excessive monitoring of religious content. College students are viewed as less susceptible to indoctrination, and higher education is typically less pervasively sectarian than parochial elementary schools.

Thus, a generally available program of research grants that happens to include a Catholic university is likely valid, so long as the criteria for funding are secular and do not require the institution to advance religion in exchange for the funds.

Aid to Religious Primary and Secondary Schools

Aid to elementary and secondary religious schools is treated more cautiously, but neutral programs that channel aid through parents or students are typically upheld.

Example:

• A voucher program granting parents tuition vouchers redeemable at public or private schools, religious or secular, was upheld even though about 95% of vouchers went to parochial schools. The program’s purpose was secular (improving education in a failing district); aid reached religious schools only through parental choice; and eligibility criteria were neutral. (Zelman v. Simmons-Harris.)

By contrast:

• Direct subsidies targeted at religious instruction (e.g., paying salaries of parochial school teachers or funding religious textbooks) are almost always unconstitutional.

Limited, neutral services can be permissible:

• Provision of secular textbooks to all schools, including religious schools, has been upheld.
• Public school teachers providing remedial education to disadvantaged students on religious-school premises, under guidelines to prevent religious instruction, has also been upheld. (Agostini v. Felton.)

Recent cases have also emphasized that states may not exclude religious schools from generally available public benefit programs solely because of their religious status. For example:

• A state program offered grants to resurface playgrounds for nonprofit daycare centers but excluded churches. That exclusion violated Free Exercise; once the state chose to fund playground safety, it could not deny funds to a church solely because it was religious. (Trinity Lutheran Church v. Comer.)
• A scholarship program could not bar students from using scholarships at religious schools solely because the schools were religious. (Espinoza v. Montana Department of Revenue.)
• A tuition-assistance program for students in rural areas could not refuse to fund schools that provided religious instruction, where it funded other private schools; excluding schools based on the religious nature of what they teach was held unconstitutional. (Carson v. Makin.)

The Court has read these cases together to strongly disfavor status-based and many use-based exclusions of religious schools from public benefits.

For MBE purposes, focus on:

• Neutral, secular programs that include religious and secular institutions on equal terms are usually permissible and sometimes constitutionally required (under Free Exercise).
• Targeted subsidies for religious worship or doctrinal teaching (e.g., paying clergy salaries, funding seminary training) are almost always impermissible, though a narrow historical exception exists for refusing to fund clergy training (see below).

Worked Example 1.4

Faced with poorly performing public schools in a city, a state creates a voucher program for parents living in that city. Parents receive a voucher per school-age child, usable at any public or private school (religious or not) in the district. Over 95% of vouchers are used at parochial schools. The program has no restrictions on how schools spend the funds. A taxpayer challenges it under the Establishment Clause. What is the best analysis?

Answer:
The program is likely constitutional. The purpose is secular (improving education), eligibility and use are neutral with respect to religion, and any aid to religious schools flows through private parental choice, not governmental preference. The high percentage of vouchers used at religious schools reflects parents’ choices, not state endorsement. This aligns with Zelman, where a similar voucher scheme was upheld. The lack of spending restrictions does not itself render the program invalid, so long as the state is not directly funding religious instruction and the decision to use vouchers at religious schools is genuinely independent.

Religious Activities in Public Schools

Public school cases are a classic Establishment Clause testing ground. Schools are government actors, and students are a captive and impressionable audience.

Key rules:

• School-sponsored prayer and Bible reading:

  • Unconstitutional, even if participation is nominally voluntary or the prayer is “non-denominational.”
  • Includes teacher-led classroom prayer, school-written graduation prayers, and student-led prayer over the public-address system at football games when effectively school-sponsored.
  • Cases: Engel v. Vitale (classroom prayer), Abington v. Schempp (Bible reading), Lee v. Weisman (graduation prayer), Santa Fe Independent School Dist. v. Doe (football game prayer).

• Moments of silence:

  • A moment of silence “for meditation or voluntary prayer” may be invalid if legislative history or surrounding facts show a purpose to reintroduce prayer into school. (Wallace v. Jaffree.)
  • A genuinely neutral moment of silence, without religious motivation, is more defensible.

• Teaching creationism or banning evolution:

  • A statute that forbids teaching evolution or requires teaching “creation science” alongside evolution violates the Establishment Clause because its purpose is to advance religion, not secular education. (Edwards v. Aguillard.)

• Teaching about religion:

  • Schools may teach about religion in a secular, academic way (e.g., comparative religion, history of religious movements, the role of religion in literature or history).
  • The constitutional line is between teaching religion (devotional, endorsing faith) and teaching about religion (informational, objective).

• Distribution of religious materials:

  • Schools may not distribute Bibles or other religious materials to students during instructional time, or allow outside groups to do so in a way that appears school-endorsed.
  • Allowing religious groups to distribute literature after hours on the same terms as nonreligious groups is generally permissible, as long as the forum is truly open and the school is not sponsoring the distribution.

• Student religious speech and clubs:

  • Students retain free speech and free exercise rights at school, subject to reasonable regulations.
  • If a school allows noncurricular clubs, it must generally allow student religious clubs equal access to facilities and resources, subject to neutral time, place, and manner regulations.
  • Treating religious clubs worse than comparable secular clubs is viewpoint discrimination and not required by the Establishment Clause. The federal Equal Access Act reflects this principle at the statutory level.

Recent decisions have also grappled with when school employees may engage in private religious expression (for example, a football coach praying silently at midfield after a game). The Court has emphasized that private religious expression by government employees, not part of official duties and without coercing students to participate, may be protected by Free Speech and Free Exercise. However, when employees use their official position to lead or organize student prayer, especially during school events, Establishment Clause concerns re-emerge.

For exam purposes, assume:

• Official, school-organized or school-endorsed religious activities violate the Establishment Clause.
• Student-initiated, student-led religious activities in neutral forums are generally protected, as long as the school does not sponsor or coerce participation.

Worked Example 1.5

A public high school allows a wide range of noncurricular student clubs to meet after school, including political clubs, environmental clubs, and service organizations. A group of students asks to form a Bible study club that would meet after school on the same terms as other clubs. The school denies recognition, asserting that allowing a religious club would violate the Establishment Clause. Is the denial constitutional?

Answer:
No. Once the school has created a limited public forum for student clubs, it must treat religious and secular clubs on equal terms. Denying recognition to the Bible study club solely because it is religious is impermissible viewpoint discrimination. Equal access would not violate the Establishment Clause because the forum is neutral and student-initiated; excluding the club violates Free Speech and Free Exercise. This scenario mirrors the principles of the Equal Access Act and Supreme Court cases protecting equal treatment for student religious clubs.

Legislative Prayer and Historical Practice

Legislative prayer is treated differently from school prayer, largely because of historical practice and differences in audience.

• Opening sessions of legislatures or town councils with prayer is consistent with historical practice dating back to the founding.
• The practice is upheld if:
  • The selection of prayer-givers is not discriminatory among faiths, and
  • The prayers do not proselytize, denigrate other faiths, or coercively pressure participation.

Longstanding practices of legislative prayer are evaluated under history-and-tradition analysis, not strict Lemon scrutiny. (Marsh v. Chambers; Town of Greece v. Galloway.)

Factors that push a practice toward unconstitutionality include:

• Government officials directing the public to participate (e.g., asking the public to stand or bow heads, especially with penalties or adverse treatment for those who refuse).
• Excluding minority faiths from participation.
• Frequent prayers that disparage other religions, aggressively evangelize, or are used as political weapons.

In contrast to schools, adult citizens attending legislative sessions are presumed less impressionable, and the risk of subtle coercion is lower. That is why legislative prayer can be upheld where similar practices in schools would not.

Worked Example 1.6

A town invites local clergy to deliver invocations at the start of town council meetings. Clergy of all faiths may volunteer, and over time most prayers are Christian, reflecting the town’s demographics. The prayers sometimes refer to “Jesus” but do not ask the audience to participate. An atheist resident sues under the Establishment Clause. What is the likely result?

Answer:
The practice will likely be upheld. Legislative prayer with rotating clergy drawn from local congregations fits within the nation’s historical traditions. The town’s policy is facially nondiscriminatory, and the predominance of one faith reflects local demographics, not intentional exclusion. Absent coercion or proselytization, the practice is consistent with Town of Greece v. Galloway. The mere fact that the prayers are often Christian does not by itself establish an unconstitutional establishment of religion.

Religious Symbols and Displays

The constitutionality of religious symbols on government property depends heavily on context. Courts use a mix of Lemon, endorsement, coercion, and historical-practice analysis.

Relevant factors include:

• The setting (e.g., courthouse lawn, holiday display among many secular symbols, solitary Ten Commandments plaque in a classroom).
• The history and duration of the display (long-standing vs. newly erected).
• Whether the display appears to place government’s imprimatur on religious doctrine.
• Whether the display is best viewed as private speech (e.g., a privately funded nativity scene in a public forum) or government speech.

Examples:

• A crèche in a large holiday display that includes Santa, reindeer, and secular decorations may be upheld as part of a predominantly secular seasonal celebration.
• A Ten Commandments display in a public school classroom, with no historical explanation, is likely unconstitutional as endorsing religion.
• Old war memorials incorporating crosses may be upheld based on their historical meaning and long-standing presence. (American Legion v. American Humanist Association.)
• A newly installed Ten Commandments monument on courthouse steps, accompanied by explicit religious statements from officials, is more likely to be struck down as a governmental endorsement of religion.

For the MBE, assume that isolated religious symbols in schools or courthouses without clear secular context are likely invalid under endorsement and Lemon effect analysis, especially if they were installed recently or accompanied by religiously motivated statements from officials.

Government Funding and Religious Speech in Forums

As noted above, Establishment interacts with Free Speech whenever government opens a forum or funding program.

Basic framework:

• If a city allows private groups to use a park, auditorium, or plaza as a public or limited public forum, it cannot exclude religious speakers or religious displays solely because they are religious.
• When government conducts its own speech (e.g., designing a permanent monument in a park, creating a school curriculum), it has more leeway to choose content, but it still cannot violate the Establishment Clause by endorsing religion.

Neutral inclusion of religious speakers in a formally secular forum does not normally violate the Establishment Clause; exclusion based on their religious identity or message typically violates Free Speech and Free Exercise.

Worked Example 1.7

A city allows private groups to display temporary monuments in a public park, subject to approval by a review committee applying content-neutral criteria (size, safety, duration). An atheist group erects a monument criticizing religion; a church requests permission to install a similarly sized monument displaying the Ten Commandments. The city denies the church’s request solely because the monument is religious. Is this constitutional?

Answer:
No. By opening the park as a forum for private monuments, the city must treat religious and nonreligious speakers on equal terms. Denying the church’s monument solely because of its religious content is viewpoint discrimination under the Free Speech Clause. Including the monument on neutral terms would not itself violate the Establishment Clause because it would be private speech in a public forum, not government endorsement.

Worked Example 1.8

A city maintains a large, permanent Ten Commandments monument that it commissioned and installed on the courthouse steps five years ago, standing alone without any historical markers or secular context. A resident challenges the monument under the Establishment Clause. What result?

Answer:
The challenge is likely to succeed. Unlike long-standing war memorials or monuments integrated into a broader display with secular elements, a recently installed Ten Commandments monument on courthouse steps, with no secular explanatory context, strongly suggests religious purpose and endorsement. Under the Lemon test, the purpose and primary effect are religious, and a reasonable observer would likely view the display as government endorsement of religious doctrine. The courthouse setting and the absence of historical or educational framing make the Establishment Clause problem more acute.

Worked Example 1.9

A state creates a merit-based scholarship for college students. The scholarship may be used at any accredited public or private college in the state, religious or secular, but the statute expressly bars students from using the scholarship funds for a “devotional theology” major designed to train clergy. A student who wishes to study for the ministry at a religious college challenges the restriction. How should a court analyze this?

Answer:
The state is discriminating based on the religious use of the funds, not the religious status of the school, in a context closely tied to training clergy. The Court has upheld similar restrictions as a permissible choice not to fund devotional training, even while allowing scholarships to be used at religious schools for secular majors. On an exam, you should recognize this as a close question but lean toward upholding the restriction as a narrow refusal to fund religious use, not an attempt to punish religion. This tracks Locke v. Davey, which the Court has characterized as a limited exception allowing states to decline funding for clergy training while still treating religious institutions equally in other respects.

Worked Example 1.10

A state prison system receives federal funds and adopts a rule severely limiting all group religious services for inmates, citing administrative convenience. Muslim and Jewish inmates sue, claiming that the rule substantially burdens their religious exercise. The state concedes the burden but argues that reducing overtime costs is a sufficient justification. What standards apply and what is the likely outcome?

Answer:
Under the Constitution alone, a prison regulation need only be reasonably related to legitimate penological interests, a deferential standard. However, because the prison receives federal funds and the claim involves institutionalized persons, RLUIPA (a federal statute similar to RFRA) is likely to apply. Under RLUIPA, the state must satisfy strict scrutiny: the rule must further a compelling interest and be the least restrictive means. Administrative convenience and cost savings are generally not compelling interests in this context. The prisoners are likely to prevail under RLUIPA, even though a bare constitutional challenge might fail.

Summary

The First Amendment’s Religion Clauses work together to structure the relationship between government and religion.

On the Free Exercise side:

• Religious belief is absolutely protected. Government may not punish, reward, or require particular beliefs, nor may it judge the truth of religious doctrine.

• Religiously motivated conduct receives qualified protection. The key distinction is between:

  • Laws that target religion or are enforced with hostility toward religion (subject to strict scrutiny and almost always invalid), and
  • Neutral, generally applicable laws that incidentally burden religious conduct (reviewed under rational basis, usually valid, with no constitutional right to exemption).

• Certain contexts have received heightened protection, including:

  • Unemployment-benefit schemes with individualized exemptions.
  • The narrow Amish schooling case, where Free Exercise combines with parental rights.
  • The ministerial exception, which bars application of many employment-discrimination laws to the relationship between religious institutions and their ministers.

• RFRA and related statutes impose strict scrutiny on federal burdens on religious exercise (and, under some statutes, on state action tied to federal funding), but those are statutory protections beyond the constitutional minimum.

On the Establishment side:

• Government must remain neutral toward religion, neither favoring nor disfavoring religion as such, and avoiding official sponsorship or coercion.

• Courts use multiple tests:

  • The Lemon test (secular purpose, primary effect that neither advances nor inhibits religion, no excessive entanglement).
  • The endorsement test (no reasonable perception that government endorses or disparages religion).
  • The coercion test (no government coercion of religious participation or support).
  • Historical-practice analysis for legislative prayer and long-standing monuments.

• Core applications include:

  • School prayer and religious instruction in public schools (almost always invalid when school-sponsored).
  • Neutral funding programs that include religious schools and institutions (often valid if aid flows through private choice and status-based exclusions are disfavored).
  • Legislative prayer and certain long-standing religious symbols (often upheld under historical-practice analysis if noncoercive and not discriminatory among faiths).
  • Government forums and funding programs, where neutrality and avoidance of viewpoint discrimination require that religious speakers be treated no worse (and no better) than secular speakers within the same category.

On the MBE, many questions present:

• Neutral criminal or regulatory laws affecting religious practice (apply Smith and ask whether the law targets religion).
• School prayer, religious instruction, moments of silence, and equal access for religious clubs (school-sponsored religious observances are nearly always unconstitutional; student-initiated religious clubs are usually protected when treated neutrally).
• Voucher and funding programs that include religious institutions (often valid if neutrally structured with secular purposes and private choice).
• Access to forums or funding where religious speakers are excluded “to avoid establishment” (usually unconstitutional viewpoint discrimination; Establishment rarely requires such exclusion).
• Legislative prayer and public religious displays, where history and context largely determine whether government is endorsing religion or simply acknowledging its role in the nation’s heritage.

Understanding when strict scrutiny applies, how neutrality operates, and how the Establishment Clause interacts with Free Speech and Free Exercise is essential for resolving these questions efficiently on the exam.

Key Point Checklist

This article has covered the following key knowledge points:

• The First Amendment’s Religion Clauses apply to the states through the Fourteenth Amendment.
• Free Exercise absolutely protects religious belief; religiously motivated conduct is protected but may be regulated.
• Courts may test the sincerity but not the truth or reasonableness of religious beliefs.
• Laws that target religion or are enforced with hostility toward religion are subject to strict scrutiny and are rarely upheld.
• Neutral laws of general applicability that incidentally burden religious practice are reviewed under rational basis, and religious exemptions are not usually constitutionally required.
• Some contexts—such as individualized unemployment-benefit determinations, Amish schooling, and ministerial employment—receive heightened Free Exercise protection.
• RFRA restores strict scrutiny for federal (but not state) burdens on religion; many states have their own RFRAs as a matter of state law; RLUIPA extends similar protections in certain federally funded contexts.
• The ministerial exception constitutionally bars most employment-discrimination suits brought by ministers against their religious employers.
• Government must act with neutrality toward religion, generally forbidding sponsorship of religious activity, coercion in matters of faith, and sect preferences.
• Key Establishment frameworks include the Lemon test, endorsement and coercion tests, and historical-practice analysis for legislative prayer, long-standing symbols, and monuments.
• Neutral, indirect aid programs (such as vouchers) that allow private choice among religious and secular options are often upheld; direct subsidies for religious instruction are not.
• School-sponsored prayer, Bible reading, and teaching creationism in public schools are unconstitutional; student religious clubs and speech must generally be given equal access to forums on neutral terms.
• In forums and funding programs, government may not exclude religious speakers or viewpoints solely because they are religious; neutrality, not exclusion, is the rule.
• Legislative prayer and some public religious displays may be upheld when they fit within a long historical tradition and do not coerce participation or discriminate among faiths.
• Viewpoint discrimination against religious viewpoints in a public or limited public forum is almost always unconstitutional.

Key Terms and Concepts

• Establishment Clause
• Free Exercise Clause
• Religious Belief
• Religious Conduct
• Neutral Law of General Applicability
• Strict Scrutiny
• Rational Basis Review
• RFRA (Religious Freedom Restoration Act)
• Ministerial Exception
• Limited Public Forum
• Viewpoint Discrimination
• Lemon Test
• Endorsement Test
• Coercion Test
• Sect Preference