First Amendment freedoms: the religion clauses - Next Generation Bar Exam

1. Under Kennedy v. Bremerton School District, how are Establishment Clause claims evaluated?

   By reference to historical practices and understandings. The Court has abandoned the Lemon test and the endorsement test.

2. A public high school football coach offers a brief, quiet personal prayer at midfield after games, without asking students to join. Under Kennedy v. Bremerton, what is the status of the prayer?

   It is protected private religious exercise and does not violate the Establishment Clause. The prayer was personal and not coercive, so the school could not discipline the coach for it.

3. Under Tandon v. Newsom and Fulton v. Philadelphia, what makes a law not generally applicable?

   Treating comparable secular activity more favorably, or providing a system of individualized exemptions. Either feature triggers strict scrutiny under the Free Exercise Clause.

4. What may a court examine about a claimant's religious belief?

   Its sincerity, but not its truth or reasonableness. Courts may not judge the validity of religious doctrine.

5. Under Town of Greece v. Galloway, what is the status of prayer opening legislative sessions?

   It is permissible, consistent with historical tradition. Prayers may be sectarian so long as the practice does not denigrate, threaten, or coerce.

6. What does the Establishment Clause forbid regarding participation in religious exercise?

   Government coercion of participation in religious exercise. Lee v. Weisman struck down a clergy-led prayer at a public school graduation as coercive.

7. What does the ministerial exception bar?

   Employment discrimination claims brought by ministers against their religious organizations. The exception rests on both religion clauses and protects a religious group's choice of who carries out its mission.

8. Under Employment Division v. Smith, what standard applies to a neutral, generally applicable law that burdens religious practice?

   Rational basis. The Free Exercise Clause does not require exemptions from such laws.

9. To which governments does the federal Religious Freedom Restoration Act apply?

   Only the federal government. City of Boerne held that RFRA exceeded Congress's power as applied to the states.

10. What standard applies to a law that burdens religion and is not neutral or generally applicable?

    Strict scrutiny. Church of the Lukumi Babalu Aye struck down ordinances targeting animal sacrifice by a particular faith.

11. Under Trinity Lutheran, Espinoza, and Carson v. Makin, what is the status of excluding religious institutions from a generally available public benefit?

    It violates the Free Exercise Clause unless it survives strict scrutiny. A state need not fund private education, but once it does, it may not exclude schools because they are religious.

12. Under Larson v. Valente, what standard applies to laws that prefer some religious denominations over others?

    Strict scrutiny. Denominational preferences are the clearest Establishment Clause violation.

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