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Freedom of Religion: Crash Course Government and Politics #24

September 25, 2019


Hi, I’m Craig, and this is Crash Course
Government and Politics, and I’m excited. I’m excited because today, we start delving
into Supreme Court jurisprudence, with the totally controversial topic of freedom of
religion. Now, other than being fun to say, jurisprudence means all the important cases
on a particular topic, but unfortunately, I’m only going to be talking about a couple
of them, because they demonstrate how the Supreme Court reasons its way through a tricky
issue. Jurisprudence. Jurisprudence. [Theme Music] So the Constitution deals with religion right
there in the First Amendment, which is also the one that deals with speech and the press
and assembly and petitions. Here’s what it says: “Congress shall make no law respecting
an establishment of religion or prohibiting the free exercise thereof.” It’s the first
clause in the First Amendment of the Bill of Rights, so it’s pretty darn important.
Notice it has two parts, and each one creates a separate religious liberty or freedom. The
first part, “no law respecting an establishment of religion” is caused the establishment clause;
can you guess what the second religious liberty is? If you said free exercise, you’re right.
What do these two freedoms mean, though? Establishment of religion means that the US
can’t create an official state church, like England has with the church of England. This
means that the First Amendment ensures that the US does not have any state endorsed religion nor does it
write its laws based on any religious edicts, and it’s also the clause in the Constitution that deals with religious
monuments and school prayers and stuff like that. The free exercise clause in a way is more
straightforward, it means you can’t pay for exercise. Gym memberships are illegal. But freedom
isn’t free. You’re gonna pay with pain! No pain, no gain. Actually, none of
that is what we’re talking about. What it means is you can’t be prohibited from being
part of a certain religion, although it doesn’t mean that any religious practice is okay.
For example, if your religion requires human sacrifice, because you’re an Aztec, state,
local, and federal law could prevent you from practicing that aspect of religion, for obvious
reasons, although it couldn’t prevent you from believing that human sacrifices were
necessary to make the sun rise every day. We are gonna anger a lot of Aztecs with this
video, Stan. There are a number of cases that establish
this distinction between religious belief and religious practice, but my personal favorite
is Church of Lukumi Babalu Aye vs. Hialeah, because I love saying Lukumi Babalu Aye. You
probably figured out that what these two clauses mean in practice has been determined to some
degree by Supreme Court decisions. There’s a bunch of them, but probably the most important
one is called Lemon v. Kurtzman, from 1971. Right off the bat, the Lemon decision is a
little complicated because it combines two sets of facts, although they both involve
public money and parochial schools. In one case in Rhode Island, the state was using
taxpayer funds to pay teachers in parochial schools in an effort to educate Rhode Island
children, which is generally a good goal. In the other case in Pennsylvania, the state
was paying teachers in private schools to provide secular education services, but enough
with the set-up, let’s go to the Thought Bubble. The Supreme Court in Lemon vs. Kurtzman devised
a three prong test to see if the state law violates the First Amendment religious freedom
clauses. Under the first prong, the Court looks to see whether the law in question has
a secular legislative purpose. In this case, the purpose of the law was educating children,
which you remember, is one of the powers reserved to the states, and for the most part, is a
secular purpose. Under the second prong, the Court examines
whether or not the law’s principal or primary effect neither enhances nor inhibits religion.
Here again, the Court found that paying private school teachers or using private school facilities
did not necessarily promote religion or prevent students from worshipping as they wanted to. The third prong requires that the law under
consideration does not create excessive entanglement between a church and the state. This is the
one where both the Rhode Island and Pennsylvania laws got into trouble. In Rhode Island, the
school buildings where the children were learning were full of religious imagery, and 2/3 of
the teachers were nuns. The Court paid close attention the fact that the people involved
were kids, ruling, “This process of inculcating religious doctrine is, of course, enhanced
by the impressionable age of the pupils in primary schools particularly. In short, parochial
schools involve substantial religious activity and purpose.” In Pennsylvania, the problem
was different. The Court ruled that in order to make sure that the teachers were NOT teaching
religion, the state would have to monitor them so closely that it would be excessive
entanglement and give the state way too much control. They ruled that, “The very restrictions
in surveillance necessary to ensure that teachers play a strictly non-ideological role give
rise to entanglements between church and state.” Thanks, Thought Bubble. So it’s pretty complicated,
and I’m not 100% sure that I find it convincing. First of all, the Justices engaged in some slippery
slope reasoning about the Pennsylvania case. The Court argued that even if, in this situation,
the secular purpose was a good one, there’s a tendency for states to take more and more
power for themselves. But my bigger concern is that all three prongs in this case were
given equal weight, and I’m not sure that they always should be. I mean, you got the
one round one and then the two like, you know, long ones, and you can pull that round one,
it’s just for grounding. What the ruling in this case meant was that
the secular purpose, educating children, was not gonna happen, or at least would be made
more difficult. Also, you could argue that it was kind of paternalistic, assuming that
kids wouldn’t be able to block out religious imagery, but since they are kids, maybe a little
paternalism is okay. You spit that gum out, Junior. So Lemon vs. Kurtzman built on an earlier
case, Engel vs. Vitale, which ruled that prayer in schools violated religious freedom. You
would think that, taken together, this issue would be pretty much put to bed, yet every
few years, a case comes along involving prayer in school, and now they apply the old three
prong Lemon test. For example, one state adopted a statute mandating a moment of silence at
the beginning of each school day. One of the purposes of this statute is to provide students
with an opportunity to pray in school. Another purpose is to create a calming atmosphere
in the classroom to better promote learning. The first purpose doesn’t look so secular,
and as for the second prong, doesn’t necessarily advance or inhibit a particular religion.
Students can choose not to pray at all. Is this excessive entanglement? That’s always
gonna be difficult to say, especially since ‘excessive’ is pretty subjective, but if you
go on the standard of the Pennsylvania case in Lemon, almost any religious practice in
school could be excessively entangling, because the state is going to have to step in and
monitor it. Some school systems have tried to get around
this by having the prayers led by students, because they aren’t agents of the state. But
then you have the issue of how much a student-led prayer is really led by a student, and how
do you find out without more monitoring and more state entanglement? The Lemon test is
an attempt by the Court to set up a framework for analyzing future situations where religion
and the state might get mixed up. It’s probably better than having what legal scholars like
to call “a bright line rule” about religion in public spaces like schools and courthouses,
but it does leave a lot of wiggle room and it seems that it encourages future cases because
we keep seeing them. The funny thing is, religious freedom is one of the less controversial protections
found in the First Amendment, if you don’t believe me, wait until our next episode on
free speech. Just wait. You just — you just wait. Did you guys hear what he said? See
ya next time. Crash Course Government and Politics is produced
in association with PBS Digital Studios. Support for Crash Course US Government comes from
Voqal. Voqal supports non-profits that use technology and media to advance social equity.
Learn more about their mission and initiatives at voqal.org. Crash Course was made with the
help of all these jurisprudences, am I using that word right? Thanks for watching.

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