1 00:00:05,620 --> 00:00:09,760 Hello, everybody, and welcome to this third and last video about 2 00:00:09,960 --> 00:00:12,370 the First Amendment to the American Constitution. 3 00:00:12,570 --> 00:00:16,690 In last week's video, we ended our presentation of the 4 00:00:16,890 --> 00:00:21,190 freedom of speech category of rights contained in the First Amendment. 5 00:00:21,390 --> 00:00:25,780 And we started talking about the second category, religious freedom, 6 00:00:25,980 --> 00:00:30,430 mainly by presenting the two religious clauses of the First Amendment, 7 00:00:30,630 --> 00:00:33,820 the Establishment Clause and the Free Exercise Clause. 8 00:00:34,020 --> 00:00:37,930 Today, what I would like to do is to tell you everything you need 9 00:00:38,130 --> 00:00:40,330 to know about these two clauses. 10 00:00:40,530 --> 00:00:46,000 Remember, there are two religious clauses because there are two things 11 00:00:46,200 --> 00:00:49,930 the government needs to do in order to protect religious freedom. 12 00:00:50,200 --> 00:00:54,670 The first one is to give its citizens freedom of religion, 13 00:00:54,870 --> 00:00:57,700 which is the objective of the Free Exercise Clause. 14 00:00:57,900 --> 00:01:02,230 And the second one is to guarantee freedom from religion, 15 00:01:02,430 --> 00:01:05,770 which is the objective of the Establishment Clause. 16 00:01:06,040 --> 00:01:09,910 Let's start with this Establishment Clause which reads, quote, 17 00:01:10,750 --> 00:01:15,700 "Congress shall make no law respecting an establishment of religion", end 18 00:01:15,900 --> 00:01:21,010 of quote. As I told you last week, this clause makes it impossible 19 00:01:21,210 --> 00:01:25,690 for the federal government or for any of the individual states to 20 00:01:25,890 --> 00:01:28,180 establish an official religion. 21 00:01:28,570 --> 00:01:31,720 But the Establishment Clause is larger than that. 22 00:01:31,990 --> 00:01:37,450 It also makes it unconstitutional for the government to support a 23 00:01:37,650 --> 00:01:38,650 particular religion. 24 00:01:38,980 --> 00:01:43,780 There are basically four things that the government cannot do in 25 00:01:43,980 --> 00:01:46,420 order for the Establishment Clause to be respected. 26 00:01:46,630 --> 00:01:49,870 It cannot establish an official religion. 27 00:01:50,070 --> 00:01:56,650 It cannot favor one religion, it cannot favor religion over non 28 00:01:56,850 --> 00:01:57,610 religion, 29 00:01:57,810 --> 00:01:58,570 so atheism, 30 00:01:58,770 --> 00:02:03,550 and finally, it cannot favor non religion over religion. 31 00:02:03,910 --> 00:02:08,020 In other words, the Establishment Clause requires the government 32 00:02:08,220 --> 00:02:11,380 to be neutral when it comes to religion. 33 00:02:11,680 --> 00:02:14,530 When you say it, it seems pretty simple. 34 00:02:14,730 --> 00:02:18,790 But the reality is that the Establishment Clause is one of 35 00:02:18,990 --> 00:02:23,890 the most difficult to interpret in the entire Constitution. 36 00:02:24,130 --> 00:02:29,410 Even Supreme Court justices often disagree on the exact meaning and 37 00:02:29,610 --> 00:02:31,210 limits of this clause. 38 00:02:31,540 --> 00:02:36,310 The reason for that is that the number of different cases where 39 00:02:36,510 --> 00:02:39,850 the government could potentially be violating the Establishment 40 00:02:40,050 --> 00:02:45,160 Clause is almost limitless, and it is sometimes very difficult 41 00:02:45,360 --> 00:02:50,740 to decide whether or not a particular government policy constitutes a 42 00:02:50,940 --> 00:02:53,080 violation of the Establishment Clause. 43 00:02:53,380 --> 00:02:58,570 For instance, is it constitutional for a public school to organize 44 00:02:58,770 --> 00:03:03,670 public prayers if those prayers don't favor one particular religion? 45 00:03:04,120 --> 00:03:08,920 Can public buildings set up a creche during Christmas season? 46 00:03:09,250 --> 00:03:13,360 Can a school refuse to teach the theory of evolution? 47 00:03:13,930 --> 00:03:18,550 All of those questions are both fascinating and pretty difficult, 48 00:03:18,750 --> 00:03:20,170 constitutionally speaking. 49 00:03:20,530 --> 00:03:26,290 Because of that and the vast number of different cases one could imagine, 50 00:03:26,490 --> 00:03:31,630 the Supreme Court tried to come up with a test that would allow 51 00:03:31,830 --> 00:03:37,780 judges to answer questions related to the Establishment Clause in 52 00:03:37,980 --> 00:03:39,280 a uniform manner. 53 00:03:39,670 --> 00:03:45,160 This test is called the Lemon Test, and it was established by the Supreme 54 00:03:45,360 --> 00:03:50,770 Court in 1971 following a case called Lemon v. Kurtzman. 55 00:03:51,520 --> 00:03:57,370 This test was supposed to give future judges a clear way to decide 56 00:03:57,570 --> 00:04:02,260 whether or not a law adopted or a decision made by the federal 57 00:04:02,460 --> 00:04:06,100 government or a state violates the Establishment Clause. 58 00:04:06,340 --> 00:04:11,230 The Lemon test says that a law violates the Establishment Clause 59 00:04:11,430 --> 00:04:16,570 and is thus unconstitutional if it meets one or several of the 60 00:04:16,770 --> 00:04:17,920 following conditions. 61 00:04:18,130 --> 00:04:22,930 Number one, a law violates the Establishment Clause if it does 62 00:04:23,130 --> 00:04:26,830 not have a legitimate secular purpose. 63 00:04:27,070 --> 00:04:33,100 In other words, if the objective of a law is purely and entirely 64 00:04:33,300 --> 00:04:36,190 religious, then it violates the Establishment Clause. 65 00:04:36,490 --> 00:04:41,980 Number two, a law is in violation of the Establishment Clause if 66 00:04:42,180 --> 00:04:47,350 its primary effect is to advance or inhibit religion. 67 00:04:47,550 --> 00:04:53,410 Finally, the Lemon test says that a law is unconstitutional if it 68 00:04:53,610 --> 00:04:59,770 creates, quote, "an excessive government entanglement with religion", 69 00:05:00,220 --> 00:05:01,130 end of quote, 70 00:05:01,330 --> 00:05:06,580 in other words, if it creates a strong link between the government 71 00:05:06,780 --> 00:05:12,220 and religion. That is the Lemon test, which once again was supposed to 72 00:05:12,420 --> 00:05:16,840 give judges a clear way to decide cases that have to do with the 73 00:05:17,040 --> 00:05:18,010 Establishment Clause. 74 00:05:18,460 --> 00:05:22,030 But unfortunately, things are not as simple as that. 75 00:05:22,240 --> 00:05:27,790 It is still difficult today for judges to decide Establishment 76 00:05:27,990 --> 00:05:30,580 Clause cases for at least two reasons. 77 00:05:30,780 --> 00:05:36,250 First, the conditions of the Lemon test are pretty open to interpretation. 78 00:05:36,450 --> 00:05:41,230 For instance, the third condition of the Lemon test says that a law 79 00:05:41,430 --> 00:05:46,930 is unconstitutional if it creates an excessive 80 00:05:47,130 --> 00:05:49,510 government entanglement with religion. 81 00:05:49,710 --> 00:05:55,150 Well, as you can easily imagine, the precise definition of what 82 00:05:55,350 --> 00:06:00,160 constitutes an excessive government entanglement with religion can 83 00:06:00,360 --> 00:06:04,450 vary from one person to another and more importantly, from one 84 00:06:04,650 --> 00:06:05,680 judge to another. 85 00:06:05,880 --> 00:06:10,870 Ironically, the second reason why the Lemon test has not been as 86 00:06:11,070 --> 00:06:15,730 successful as the Supreme Court had wished it would be is that 87 00:06:15,930 --> 00:06:21,070 the Supreme Court itself has ignored it in several Establishment Clause 88 00:06:21,270 --> 00:06:22,030 cases. 89 00:06:22,230 --> 00:06:26,680 You have to understand that Supreme Court justices are free to use 90 00:06:26,880 --> 00:06:29,890 whatever tools they want to decide cases. 91 00:06:30,190 --> 00:06:34,810 Just because the Supreme Court created the Lemon test 50 years 92 00:06:35,010 --> 00:06:39,910 ago doesn't mean that current Supreme Court justices have an obligation 93 00:06:40,110 --> 00:06:40,870 to use it. 94 00:06:41,070 --> 00:06:41,980 They don't. 95 00:06:42,180 --> 00:06:47,260 And several Supreme Court justices are not entirely convinced by the 96 00:06:47,460 --> 00:06:51,850 Lemon test, and they simply don't use it when deciding Establishment 97 00:06:52,050 --> 00:06:52,900 Clause cases. 98 00:06:53,410 --> 00:07:00,010 The result is that it is very difficult to predict the outcome of Establishment 99 00:07:00,210 --> 00:07:01,150 Clause cases. 100 00:07:01,510 --> 00:07:04,750 I'll give you a few famous examples to prove that point. 101 00:07:04,990 --> 00:07:10,570 Let's start with the notion of religious symbols and more precisely, 102 00:07:10,770 --> 00:07:13,600 the oh so famous Christmas creches. 103 00:07:13,800 --> 00:07:18,430 The exact same question has been asked several times in our country, 104 00:07:18,630 --> 00:07:19,390 France. 105 00:07:19,590 --> 00:07:24,730 Is it legal for the government or a local government to display 106 00:07:24,930 --> 00:07:28,330 a creche in a public building in the US? 107 00:07:28,530 --> 00:07:32,710 This could potentially be seen as a violation of the Establishment 108 00:07:32,910 --> 00:07:36,620 Clause: By displaying a creche in a public building, 109 00:07:36,820 --> 00:07:42,280 is the government endorsing religion, favoring religion, which would 110 00:07:42,480 --> 00:07:49,270 be unconstitutional? Or has Christmas become a popular holiday more than 111 00:07:49,470 --> 00:07:52,960 a religious one, in which case it would be okay for the government 112 00:07:53,160 --> 00:07:54,820 to display a Christmas creche? 113 00:07:55,030 --> 00:08:00,400 The Supreme Court had to answer this question twice in five years, 114 00:08:00,600 --> 00:08:04,900 and the answers given by the court will show you how difficult 115 00:08:05,100 --> 00:08:09,520 it is to predict the result of Establishment Clause cases. 116 00:08:09,880 --> 00:08:15,970 In 1984, in a case called Lynch v. Donnelly, the Court decided 117 00:08:16,170 --> 00:08:20,740 that a display made of a creche, a Christmas tree and a Santa Claus, 118 00:08:20,940 --> 00:08:25,630 was not unconstitutional and did not violate the Establishment Clause. 119 00:08:25,930 --> 00:08:32,230 But then, only five years later, in 1989, the same Supreme Court 120 00:08:32,430 --> 00:08:38,020 decided that a creche alone, on its own, violated the Establishment 121 00:08:38,220 --> 00:08:40,420 Clause and was unconstitutional. 122 00:08:40,620 --> 00:08:45,580 So a creche and a Christmas tree and a Santa Claus are okay, 123 00:08:45,820 --> 00:08:49,480 but a creche alone, on its own, is unconstitutional. 124 00:08:49,690 --> 00:08:53,320 As I told you, good luck trying to understand Supreme Court 125 00:08:53,520 --> 00:08:55,810 jurisprudence on the Establishment Clause. 126 00:08:56,710 --> 00:09:00,400 Other constitutional questions that have to do with the Establishment 127 00:09:00,600 --> 00:09:05,350 Clause are linked to prayers in public schools, which were declared 128 00:09:05,550 --> 00:09:10,150 unconstitutional by the Supreme Court as soon as 1962, 129 00:09:10,350 --> 00:09:13,420 in the famous Engel v. Vitale decision. 130 00:09:13,780 --> 00:09:18,280 What's really interesting about this case is that the prayer that 131 00:09:18,480 --> 00:09:22,210 led to the case was open to all religions. 132 00:09:22,410 --> 00:09:27,790 It wasn't a prayer for one particular religion, and yet the Supreme Court 133 00:09:27,990 --> 00:09:29,950 still found it unconstitutional. 134 00:09:30,150 --> 00:09:34,810 Finally, the Supreme Court made it unconstitutional for public 135 00:09:35,010 --> 00:09:38,080 schools to prohibit the teaching of evolution 136 00:09:38,280 --> 00:09:43,900 (that was in 1968, in the Epperson v. Arkansas decision) and to 137 00:09:44,100 --> 00:09:46,030 teach creationist science 138 00:09:46,230 --> 00:09:50,230 (that was the Edwards versus Aguilar case of 1987). 139 00:09:50,980 --> 00:09:51,740 All right. 140 00:09:51,940 --> 00:09:55,030 Now let's talk about the second religious clause of the First 141 00:09:55,230 --> 00:09:59,680 Amendment, the Free Exercise Clause. The general rule 142 00:09:59,930 --> 00:10:01,820 is pretty easy to understand here. 143 00:10:02,210 --> 00:10:06,290 Americans are free to practice any religion they want, 144 00:10:06,490 --> 00:10:11,870 and their religious values are given a very high level of protection 145 00:10:12,070 --> 00:10:13,250 by the Supreme Court. 146 00:10:13,670 --> 00:10:17,480 To give you an example you all know about, a law like the 147 00:10:17,680 --> 00:10:21,230 French ban on the burqa, which wasn't problematic 148 00:10:21,430 --> 00:10:24,440 legally speaking in France, would have been completely 149 00:10:24,640 --> 00:10:26,570 unconstitutional in the United States. 150 00:10:26,870 --> 00:10:31,610 But even then, it's not easy for you to understand how large religious 151 00:10:31,810 --> 00:10:34,670 freedom actually is in the United States. 152 00:10:34,870 --> 00:10:38,810 So let me give you a couple of examples to illustrate my point, 153 00:10:39,010 --> 00:10:42,110 two Supreme Court decisions more precisely. 154 00:10:42,680 --> 00:10:44,660 The first one is very recent. 155 00:10:44,860 --> 00:10:50,600 In June of 2018, in the Masterpiece Cakeshop decision, the Supreme 156 00:10:50,800 --> 00:10:56,690 Court allowed a baker to refuse to bake a cake for a gay wedding 157 00:10:56,890 --> 00:10:59,840 because it contradicted his religious beliefs. 158 00:11:00,140 --> 00:11:05,930 What's interesting about this decision is that it was a 7 to 2 decision, 159 00:11:06,130 --> 00:11:11,420 which means that two liberal justices who are generally in favor of gay 160 00:11:11,620 --> 00:11:15,980 rights sided with the baker, which shows you the importance 161 00:11:16,180 --> 00:11:19,970 that the Supreme Court gives to religious freedom and to the Free 162 00:11:20,170 --> 00:11:21,080 Exercise Clause. 163 00:11:21,440 --> 00:11:27,920 The second example is a 1972 Supreme Court decision called Wisconsin 164 00:11:28,120 --> 00:11:29,060 v. Yoder. 165 00:11:29,390 --> 00:11:35,120 In that decision, the Supreme Court held that Amish parents had the 166 00:11:35,320 --> 00:11:40,310 right not to send their children to school until the age of 16 if 167 00:11:40,510 --> 00:11:42,650 it violated their religious beliefs. 168 00:11:42,920 --> 00:11:47,510 That is how large religious freedom is in the United States. 169 00:11:47,780 --> 00:11:52,220 But obviously there needs to be a limit on religious freedom, 170 00:11:52,420 --> 00:11:56,690 and the government must be able to adopt laws that sometimes are 171 00:11:56,890 --> 00:11:57,680 going to limit it. 172 00:11:57,880 --> 00:12:02,270 For instance, imagine that you create a new religion and this 173 00:12:02,470 --> 00:12:06,080 new religion says that you have to kill 50 people a day. 174 00:12:06,440 --> 00:12:10,230 As important as religious freedom is in the United States, 175 00:12:10,430 --> 00:12:14,270 you can easily imagine that the government will be authorized to 176 00:12:14,470 --> 00:12:19,520 put you in jail, which means that the Supreme Court has to find a 177 00:12:19,720 --> 00:12:25,610 line and define when it is possible for the government to limit religious 178 00:12:25,810 --> 00:12:26,570 liberty. 179 00:12:26,770 --> 00:12:32,930 The court did so in 1990 in the Employment Division v. Smith 180 00:12:33,130 --> 00:12:33,890 decision. 181 00:12:34,090 --> 00:12:39,710 The court said that the government may limit religious liberty in 182 00:12:39,910 --> 00:12:45,530 the case of a, quote, "valid and neutral law of general 183 00:12:45,730 --> 00:12:46,590 applicability", 184 00:12:46,790 --> 00:12:47,630 end of quote. 185 00:12:47,900 --> 00:12:52,550 In other words, limiting religious freedom cannot be the objective 186 00:12:52,750 --> 00:12:53,510 of the law, 187 00:12:53,710 --> 00:12:54,950 that would be unconstitutional, 188 00:12:55,150 --> 00:13:00,260 but it can be the consequence of a more general and neutral law. 189 00:13:00,740 --> 00:13:04,730 But the Smith decision was not accepted by Congress, 190 00:13:04,930 --> 00:13:09,980 and Congress tried to overturn it with a law called the Religious 191 00:13:10,180 --> 00:13:16,640 Freedom Restoration Act of 1993, which was supposed to restore religious 192 00:13:16,840 --> 00:13:18,890 exemptions to general rules. 193 00:13:19,160 --> 00:13:23,540 The conflict between the Smith decision and the Religious Freedom 194 00:13:23,740 --> 00:13:29,990 Restoration Act is still very strong, and many cases regularly test the 195 00:13:30,190 --> 00:13:34,310 limits of the government's capacity to limit religious freedom. 196 00:13:34,640 --> 00:13:38,170 But the general rule remains unchanged. 197 00:13:38,370 --> 00:13:43,760 It is very hard to find even one country on the face of the planet 198 00:13:43,960 --> 00:13:48,830 where religious freedom is more protected than in the United States. 199 00:13:49,040 --> 00:13:53,870 Religious liberty remains one of the founding values of the United 200 00:13:54,070 --> 00:13:54,830 States. 201 00:13:55,030 --> 00:13:55,790 All right. 202 00:13:55,990 --> 00:13:56,840 That's it for today, 203 00:13:57,040 --> 00:14:00,350 and that's it for our study of the First Amendment. 204 00:14:00,550 --> 00:14:01,310 Goodbye.