Free Exercise Clause

The First Amendment commands that the government, and that includes a county commission, shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

These are known as the Establishment Clause and the Free Exercise Clause, and both require strict government neutrality between all religious denominations.

Yet

the county may have violated both the establishment and free exercise clause by effectively favoring one religion over another without a compelling justification that can survive strict judicial scrutiny.

So the commission's zoning decisions appear unprincipled and arbitrary, given the different decision making processes and different resolutions of these two proposals.

Opponents of the Islamic Center point to the lack of consistency in weighing zoning and density and traffic issues, as well as the lack of actual notice of the zoning hearing, and therefore the absence of any meaningful community involvement.

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.

And what's happened here is that certain schools that are religiously affiliated are saying, well, we need an opt-out on religious grounds so that we can exclude from enrollment children who have families with same-sex parents where the parents are otherwise non-gender conforming.

And so the question is whether Colorado is required by the First Amendment, by the Free Exercise Clause, to have that kind of carve out or is permitted to say we're going to apply the same kind of rule to everyone.

At a high level, the Supreme Court, going back a few decades, has tended to say there's a case called Employment Division v. Smith.

A state can have a rule of general applicability.

TurboCam International is being sued by machinist Lillian Bernier.

And they were trying to claim that under the Religious Freedom Restoration Act and the First Amendment's Free Exercise Clause, this should be dismissed because they're being bigots and they don't like being called bigots.

Exactly.

They exist as a business for the purpose of honoring God.

We were going to find a way to operationalize this in his presidency.

Also, as lawyer, he understood the importance of both religious liberty guarantees of the First Amendment, the no establishment, and the free exercise clause.

So, you know, he stressed, and this won my heart because I'm Baptist, and I knew him before this, but when he started talking about Baptists and the founding of our country and how we went to bat for not only the free exercise of everyone, and the No Establishment Clause that prohibits government from preferring one religion over another or from preferring religious people over non-religious people.

And he made the case that it was religious people who understood that when the government tries to promote religion and gets involved in making judgments about theology, it actually hurts religion.

That's a lot.

Try to be quick.

So we do have these guardrails that are, and I mentioned some of them earlier, the most prominent one, the No Establishment and Free Exercise Clause in the Constitution.

And the country wouldn't be worth its salt unless it took those seriously.

And St. Mary Catholic Parish v. Roy, to be argued November 3rd, is the latest in a decade-long string of cases that the court's been using to tear down the church-state wall and give conservative religious litigants a get-out-of-law free pass.

Now, once upon a time, not long ago, the First Amendment's religious clauses, one barring governments from establishing religion and the other guaranteeing people's free exercise of religion, existed in a sort of equipoise until the Roberts Court came along and pitted the two clauses against each other, with the Free Exercise Clause winning pretty much every single round.

In just the past few years, they declared dead a 50-year-old establishment clause precedent to bless a public school football coach's 50-yard line prayers.

And they struck down state laws barring public funding for parochial schools, at least when all other private schools receive tax dollars.

So the Archdiocese, along with a couple of parishes and parishioners with preschool-aged kids, sued.

saying the non-discrimination rule violates their free exercise rights to enjoy Colorado's taxpayer-funded UPK program.

Problem is, there's a landmark 1990 precedent written by the late conservative icon Justice Scalia saying that generally applicable rules like Colorado's that happen to burden someone's religion don't violate the free exercise clause.

Now, at the time, the ruling called Employment Division v. Smith was designed to punch that case's hippy-dippy peyote-tripping co-plaintiff's Native American church by rejecting the liberal Warren Court's free exercise precedents from the 1960s that protected members of minority religions.

Yeah, the Constitution hands religious schools carte blanche to exercise their religion.

It's called the Free Exercise Clause of the Constitution.

And the Supreme Court has repeatedly recognized that religious schools get to decide who passes on the faith to the next generation.

So we're optimistic that once we appeal this decision, we'll get a good ruling that will protect the archdiocese.