Substantial infringement CSI NT Balance above against degree of intrusion Hybrid rights analysis grants strict scrutiny if a free exercise claim is combined with another constitutional claim. Yoder. Strict Scrutiny: for facially discriminatory law, i.e. targets religion. Will almost always fail. Example: city ordinance prohibits animal Church of Lukimi Babalu Aye- sacrifice. Court found this directed at religion: applied SS. Preventing animal killing for religious purposes isn’t CSI. Court calls this a Gerrymandering law. The law seems to make what the church does illegal but excepting everything that is well liked in the town. Government was obviously oppressing the religion. A law that i) places a on religion, and ad hoc balancing test: mild burden Locke v. Davey ii) state interest is a historic and substantial interest related to the separation of church and state, is constitutional. (The establishment clause would not prohibit the state giving the scholarship if the wanted took because it is filtered through private choice.) State scholarship program prohibited using it to pursue degree in Locke- devotional theology. While looks to be targeting religion which should trigger SS, Court applied ad hoc balancing. in the joints” is the over-arching “Play concept in this case. Court says that this is a historical concern v. a mild burden. This is some ad-hoc balancing test. Wants to apply regular strict scrutiny. The Government does not have to Dissent- be the adversary of religion. PERMISSIBLE ACCOMODATION Play on the Joints of the Religion Clauses Layman’s terms: you must understand that the two religion clauses often work together. The fact that the establishment clause doesn’t forbid the state from doing something does not mean that the free exercise clause mandates it. Example: State school voucher program provides vouchers, but excludes using them at religious schools. This is clearly not a violation of the establishment clause. Free Exercise analysis: held that a law targeting religion triggers SS: this law would fail Lukumi SS. held that if the burden is mind and if the state interest is a Locke v. Davey historic and substantial interest in the separation of church and state, the law can beupheld. Therefore, and the on the joints of the religion clauses” Locke v. Davey “play would suggest upholding the law
Substantial infringement CSI NT Balance above against degree of intrusion Hybrid rights analysis grants strict scrutiny if a free exercise claim is combined with another constitutional claim. Yoder. Strict Scrutiny: for facially discriminatory law, i.e. targets religion. Will almost always fail. Example: Church of Lukimi Babalu Aye- city ordinance prohibits animal sacrifice. Court found this directed at religion: applied SS. Preventing animal killing for religious purposes isn’t CSI. Court calls this a Gerrymandering law. The law seems to make what the church does illegal but excepting everything that is well liked in the town. Government was obviously oppressing the religion. Locke v. Davey ad hoc balancing test: A law that i) places a mild burden on religion, and ii) state interest is a historic and substantial interest related to the separation of church and state, is constitutional. (The establishment clause would not prohibit the state giving the scholarship if the wanted took because it is filtered through private choice.) Locke- State scholarship program prohibited using it to pursue degree in devotional theology. While looks to be targeting religion which should trigger SS, Court applied ad hoc balancing. “Play in the joints” is the over-arching concept in this case. Court says that this is a historical concern v. a mild burden. This is some ad-hoc balancing test. Dissent- Wants to apply regular strict scrutiny. The Government does not have to be the adversary of religion. PERMISSIBLE ACCOMODATION Play on the Joints of the Religion Clauses Layman’s terms: you must understand that the two religion clauses often work together. The fact that the establishment clause doesn’t forbid the state from doing something does not mean that the free exercise clause mandates it. Example: State school voucher program provides vouchers, but excludes using them at religious schools. This is clearly not a violation of the establishment clause. Free Exercise analysis: Lukumi held that a law targeting religion triggers SS: this law would fail SS. Locke v. Davey held that if the burden is mind and if the state interest is a historic and substantial interest in the separation of church and state, the law can beupheld. Therefore, Locke v. Davey and the “play on the joints of the religion clauses” would suggest upholding the law
Con-Law-II-Nowlin-KK.docx