1 00:00:00,000 --> 00:00:07,020 Hello everybody and welcome to 2 00:00:07,220 --> 00:00:11,340 this third and final video about the First Amendment to the American 3 00:00:11,540 --> 00:00:12,300 Constitution. 4 00:00:12,600 --> 00:00:17,400 In last week's video, we ended our presentation of the 5 00:00:17,600 --> 00:00:21,320 freedom of speech category of rights contained in the First Amendment, 6 00:00:21,520 --> 00:00:26,340 and we started talking about the second category, religious freedom, 7 00:00:26,740 --> 00:00:31,400 mainly by presenting the two religious clauses of the First Amendment, 8 00:00:31,780 --> 00:00:34,820 the Establishment Clause and the Free Exercise Clause. 9 00:00:35,100 --> 00:00:39,620 Today, what I would like to do is to tell you what you need to 10 00:00:39,820 --> 00:00:41,100 know about these two clauses. 11 00:00:41,900 --> 00:00:47,100 Remember, there are two religious clauses because there are two things 12 00:00:47,300 --> 00:00:50,900 the government needs to do in order to protect religious freedom. 13 00:00:51,340 --> 00:00:55,640 The first one is to give the citizens freedom of religion, 14 00:00:56,080 --> 00:00:59,940 which is the objective of the Free Exercise Clause, and the second 15 00:01:00,140 --> 00:01:04,640 one is to guarantee freedom from religion, which is the objective 16 00:01:04,840 --> 00:01:06,020 of the Establishment Clause. 17 00:01:06,870 --> 00:01:10,000 Let's start with this Establishment Clause, which reads,"Congress shall 18 00:01:10,200 --> 00:01:10,960 make no law respecting an establishment of religion".  19 00:01:16,790 --> 00:01:21,300 As I told you last week, this clause makes it impossible 20 00:01:21,500 --> 00:01:25,520 for the federal government, or for any of the individual states, 21 00:01:26,000 --> 00:01:28,240 to establish an official religion. 22 00:01:28,860 --> 00:01:33,080 But the Establishment Clause is larger than that. 23 00:01:33,280 --> 00:01:38,540 It also makes it unconstitutional for the government to support a 24 00:01:38,740 --> 00:01:39,700 particular religion. 25 00:01:40,260 --> 00:01:45,580 There are basically four things that the government cannot do as 26 00:01:45,780 --> 00:01:48,440 a consequence of the Establishment Clause of the First Amendment. 27 00:01:48,900 --> 00:01:52,280 The government cannot establish an official religion, 28 00:01:52,780 --> 00:01:58,480 it cannot favour one particular religion, it cannot favour religion 29 00:01:58,680 --> 00:02:04,300 over non-religion, so atheism, and finally it cannot favour 30 00:02:04,500 --> 00:02:06,800 non-religion over religion. 31 00:02:07,610 --> 00:02:12,400 In other words, the Establishment Clause forces the government to 32 00:02:12,600 --> 00:02:15,500 be mutual when it comes to religion. 33 00:02:16,670 --> 00:02:19,040 When you say it, it seems pretty simple. 34 00:02:19,240 --> 00:02:23,640 But the reality is that the Establishment Clause is one of 35 00:02:23,840 --> 00:02:27,400 the most difficult to interpret in the entire Constitution. 36 00:02:27,980 --> 00:02:33,720 Even Supreme Court Justices often disagree on the exact meaning and 37 00:02:33,920 --> 00:02:35,880 limits of the Establishment Clause. 38 00:02:36,180 --> 00:02:41,220 The reason for that is that the number of different cases where 39 00:02:41,420 --> 00:02:45,040 the government could potentially be violating the Establishment 40 00:02:45,240 --> 00:02:49,600 Clause is almost limitless, and it is sometimes very difficult 41 00:02:49,800 --> 00:02:55,780 to decide whether or not a particular government policy constitutes a 42 00:02:55,980 --> 00:02:57,480 violation of the Establishment Clause. 43 00:02:57,840 --> 00:03:03,140 For instance, is it constitutional for a public school to organise 44 00:03:03,340 --> 00:03:08,760 public prayers if those prayers don't favour one particular religion? 45 00:03:09,220 --> 00:03:14,100 Can public buildings set up a crash during Christmas season? 46 00:03:14,800 --> 00:03:19,700 Can a public school refuse to teach the theory of evolution because 47 00:03:19,900 --> 00:03:21,720 it contradicts religious teachings? 48 00:03:22,260 --> 00:03:27,260 All of those questions are both fascinating and pretty difficult 49 00:03:27,460 --> 00:03:28,740 constitutionally speaking. 50 00:03:29,260 --> 00:03:34,500 Because of that, and the vast number of different cases one could imagine, 51 00:03:34,700 --> 00:03:39,800 the Supreme Court tried to come up with a test that would allow 52 00:03:40,000 --> 00:03:45,460 courts to answer questions related to the Establishment Clause in 53 00:03:45,660 --> 00:03:46,960 a uniform manner. 54 00:03:47,680 --> 00:03:52,920 This test is called the Lemon Test, and it was established by the Supreme 55 00:03:53,120 --> 00:03:58,060 Court in 1971, following a case called Lemon v. 56 00:03:58,960 --> 00:04:05,560 This test was supposed to give future judges a clear way to decide 57 00:04:05,760 --> 00:04:10,800 whether or not a law adopted or a decision made by the federal 58 00:04:11,000 --> 00:04:14,700 government or a state violated the Establishment Clause. 59 00:04:15,660 --> 00:04:19,700 The Lemon Test says that a law violates the Establishment Clause, 60 00:04:19,940 --> 00:04:26,000 and is thus unconstitutional, if it meets one or several of the 61 00:04:26,200 --> 00:04:26,960 following conditions. 62 00:04:27,540 --> 00:04:28,300 1. 63 00:04:28,780 --> 00:04:33,540 A law violates the Establishment Clause if it does not have a legitimate 64 00:04:33,740 --> 00:04:35,600 secular purpose. 65 00:04:36,420 --> 00:04:42,120 In other words, if the objective of a law is entirely religious, 66 00:04:42,620 --> 00:04:45,000 then it violates the Establishment Clause. 67 00:04:45,200 --> 00:04:46,000 2. 68 00:04:46,700 --> 00:04:50,720 According to the Lemon Test, a law is in violation of the 69 00:04:50,920 --> 00:04:57,640 Establishment Clause if its primary effect is to advance religion or 70 00:04:57,840 --> 00:04:59,460 inhibit religion. 71 00:05:00,020 --> 00:05:05,300 Finally, the Lemon Test says that a law is unconstitutional if it 72 00:05:05,500 --> 00:05:06,260 creates 3. 73 00:05:06,460 --> 00:05:11,240 an excessive government entanglement with religion. 74 00:05:12,480 --> 00:05:17,560 In other words, if it creates a strong link, a strong connection 75 00:05:17,760 --> 00:05:20,360 between the government and religion. 76 00:05:21,360 --> 00:05:25,100 That is the Lemon Test, which, once again, was supposed 77 00:05:25,300 --> 00:05:30,980 to give judges a clear way to decide cases related to the Establishment 78 00:05:31,180 --> 00:05:31,940 Clause. 79 00:05:32,140 --> 00:05:36,040 But unfortunately, things are not as simple as that. 80 00:05:36,480 --> 00:05:41,620 It is still difficult today for judges to decide Establishment 81 00:05:41,820 --> 00:05:44,000 Clause cases, for at least two reasons. 82 00:05:44,580 --> 00:05:49,440 First, the conditions of the Lemon Test are pretty open to interpretation. 83 00:05:50,360 --> 00:05:54,820 For instance, the third condition of the Lemon Test says that a law 84 00:05:55,020 --> 00:05:57,160 is unconstitutional if it creates ,"an excessive government entanglement 85 00:05:57,360 --> 00:05:58,120 with religion". 86 00:06:03,520 --> 00:06:09,300 Well, as you can easily imagine, the precise definition of what 87 00:06:09,500 --> 00:06:13,420 constitutes an excessive government entanglement with religion can 88 00:06:13,620 --> 00:06:17,700 vary from one person to another, and more importantly, 89 00:06:18,100 --> 00:06:19,760 from one judge to another. 90 00:06:20,900 --> 00:06:25,680 Ironically, the second reason why the Lemon Test has not been as 91 00:06:25,880 --> 00:06:29,900 successful as the Supreme Court had wished is that the Supreme 92 00:06:30,100 --> 00:06:34,800 Court itself has ignored it in several Establishment Clause cases. 93 00:06:35,440 --> 00:06:40,880 You have to understand that Supreme Court justices are free to use 94 00:06:41,080 --> 00:06:44,200 whatever tools they want to decide cases. 95 00:06:44,760 --> 00:06:49,200 Just because the Supreme Court created the Lemon Test 50 years 96 00:06:49,400 --> 00:06:54,300 ago doesn't mean that current Supreme Court justices have an obligation 97 00:06:54,500 --> 00:06:55,600 to use it. 98 00:06:55,800 --> 00:07:00,420 They don't, and several Supreme Court justices are not convinced 99 00:07:00,620 --> 00:07:06,220 by the Lemon Test and simply don't use it when they decide Establishment 100 00:07:06,420 --> 00:07:07,180 Clause cases. 101 00:07:07,640 --> 00:07:14,100 The result is that it is very difficult to predict the outcome of Establishment 102 00:07:14,300 --> 00:07:15,060 Clause cases. 103 00:07:15,300 --> 00:07:18,900 I'll give a few famous examples to prove that fact. 104 00:07:19,760 --> 00:07:24,260 Let's start with the notion of religious symbols, and more precisely, 105 00:07:24,760 --> 00:07:27,260 the famous Christmas crèches. 106 00:07:27,580 --> 00:07:32,660 The exact same question has been asked several times in our country, 107 00:07:33,060 --> 00:07:33,820 France. 108 00:07:34,020 --> 00:07:38,160 Is it legal for the government, or a local government, 109 00:07:38,620 --> 00:07:41,700 to display a crèche in a public building? 110 00:07:41,900 --> 00:07:47,480 In the US, this could potentially be seen as a violation of the 111 00:07:47,680 --> 00:07:48,460 Establishment Clause. 112 00:07:48,820 --> 00:07:55,020 By displaying a crèche in a public building, is the government endorsing 113 00:07:55,220 --> 00:08:00,280 religion, which would be unconstitutional, or has Christmas 114 00:08:00,480 --> 00:08:05,880 become a popular holiday more than a religious one, in which case 115 00:08:06,080 --> 00:08:09,740 it would be okay for the government to display a crèche? 116 00:08:09,940 --> 00:08:15,200 The Supreme Court had to answer this question twice in only five years, 117 00:08:15,540 --> 00:08:20,140 and the answers given by the court will show you how difficult it 118 00:08:20,340 --> 00:08:23,580 is to predict the result of Establishment Clause cases. 119 00:08:23,780 --> 00:08:28,240 In 1984, in a case called Lynch v. 120 00:08:28,660 --> 00:08:33,260 Donnelly, the Supreme Court decided that a display made of a crèche, 121 00:08:33,560 --> 00:08:37,860 a Christmas tree, and a Santa Claus was not unconstitutional, 122 00:08:38,280 --> 00:08:40,640 and did not violate the Establishment Clause. 123 00:08:40,840 --> 00:08:46,640 But then, only five years later, in 1989, the same Supreme Court 124 00:08:46,840 --> 00:08:52,440 decided that a crèche alone, on its own, violated the Establishment 125 00:08:52,640 --> 00:08:54,460 Clause and was unconstitutional. 126 00:08:54,860 --> 00:09:00,480 So, a crèche, a Christmas tree, and a Santa Claus are okay, 127 00:09:00,760 --> 00:09:03,900 but a crèche alone is unconstitutional. 128 00:09:04,540 --> 00:09:08,460 Another constitutional question that has to do with the Establishment 129 00:09:08,660 --> 00:09:14,220 Clause are prayers in public schools, which were declared unconstitutional 130 00:09:14,420 --> 00:09:20,060 by the Supreme Court as soon as 1962, in the famous Engel v. 131 00:09:20,340 --> 00:09:21,320 Vitale decision. 132 00:09:22,200 --> 00:09:26,160 What's really interesting about this case is that the prayer that 133 00:09:26,360 --> 00:09:29,740 led to the case was open to all religions. 134 00:09:30,240 --> 00:09:35,720 It wasn't a prayer for one particular religion, and yet the Supreme Court 135 00:09:35,920 --> 00:09:37,780 still found it unconstitutional. 136 00:09:38,680 --> 00:09:42,720 Finally, the Supreme Court made it unconstitutional for public 137 00:09:42,920 --> 00:09:47,900 schools to prohibit the teaching of evolution, that was in 1968, 138 00:09:48,560 --> 00:09:49,700 in the Epperson v. 139 00:09:49,900 --> 00:09:54,260 Arkansas decision, and to teach creationist science, 140 00:09:54,820 --> 00:09:56,360 that was the Edwards v. 141 00:09:56,560 --> 00:09:58,660 Aguilar case of 1987. 142 00:09:59,660 --> 00:10:04,280 Alright, now let's talk about the second religious clause of the 143 00:10:04,480 --> 00:10:07,360 First Amendment, the Free Exercise Clause. 144 00:10:07,660 --> 00:10:11,160 The general rule is pretty easy to understand here. 145 00:10:11,640 --> 00:10:15,700 Americans are free to practice any religion that they want, 146 00:10:16,040 --> 00:10:20,420 and their religious values are given a very high level of protection 147 00:10:20,620 --> 00:10:22,040 by the Supreme Court. 148 00:10:22,240 --> 00:10:26,940 To give you an example you all know about, a law like the French 149 00:10:27,140 --> 00:10:31,980 ban on the Borca, which wasn't problematic, legally speaking, 150 00:10:32,460 --> 00:10:37,100 in France, would have been completely unconstitutional in the United States. 151 00:10:37,300 --> 00:10:42,180 But even then, it's not easy for you to understand how large religious 152 00:10:42,380 --> 00:10:44,600 freedom actually is in the US. 153 00:10:45,040 --> 00:10:48,320 So let me give you a couple of examples to illustrate my point. 154 00:10:48,780 --> 00:10:51,260 Two Supreme Court decisions, more precisely. 155 00:10:51,920 --> 00:10:53,640 The first one is pretty recent. 156 00:10:54,080 --> 00:10:59,340 In June 2018, in the Masterpiece Cakeshop decision, the Supreme 157 00:10:59,540 --> 00:11:04,780 Court allowed a baker to refuse to bake a cake for a gay wedding 158 00:11:04,980 --> 00:11:09,020 because it contradicted his religious beliefs as a Christian. 159 00:11:10,020 --> 00:11:15,440 What's interesting about this decision is that it was a 7 to 2 decision, 160 00:11:15,940 --> 00:11:21,820 which means that two liberal justices, who are generally in favor of gay 161 00:11:22,020 --> 00:11:26,120 rights, sided with the baker, which shows you the importance 162 00:11:26,320 --> 00:11:30,620 that the Supreme Court gives to religious freedom and to the Free 163 00:11:30,820 --> 00:11:31,580 Exercise Clause. 164 00:11:32,220 --> 00:11:39,220 The second example is a 1972 Supreme Court decision called Wisconsin v. 165 00:11:39,500 --> 00:11:40,260 Yoder. 166 00:11:40,460 --> 00:11:45,800 In that decision, the Supreme Court had that Amish parents had the 167 00:11:46,000 --> 00:11:50,840 right not to send their children to school until the age of 16 if 168 00:11:51,040 --> 00:11:52,760 it violated their religious beliefs. 169 00:11:53,340 --> 00:11:58,360 That is how large religious freedom is in the United States. 170 00:11:58,560 --> 00:12:03,220 But obviously, there needs to be some limits on religious freedom, 171 00:12:03,620 --> 00:12:08,520 and the government must be able to adopt laws that sometimes are 172 00:12:08,720 --> 00:12:10,300 going to limit religious freedom. 173 00:12:10,880 --> 00:12:14,840 For instance, imagine that you create a new religion, 174 00:12:15,240 --> 00:12:19,480 and this new religion says that you have to kill 50 people a day. 175 00:12:19,680 --> 00:12:23,880 Well, as important as religious freedom is in the US, 176 00:12:24,320 --> 00:12:28,160 you can easily imagine that the government will be authorized to 177 00:12:28,360 --> 00:12:32,540 put you in jail if you kill 50 people a day, which means that 178 00:12:32,740 --> 00:12:38,920 the Supreme Court has to find a line and to define when it is possible 179 00:12:39,120 --> 00:12:41,860 for the government to limit religious freedom. 180 00:12:42,060 --> 00:12:47,880 The Court did it in 1990 in the Employment Division v. 181 00:12:48,080 --> 00:12:49,120 Smith decision. 182 00:12:49,740 --> 00:12:55,120 The Court said that the government can limit religious liberty in 183 00:12:55,320 --> 00:12:56,120 the case of a "valid and neutral law of general applicability". 184 00:12:56,320 --> 00:13:05,400 In other words, limiting religious 185 00:13:05,600 --> 00:13:09,820 freedom cannot be the objective of a law, that would be 186 00:13:10,020 --> 00:13:14,420 unconstitutional, but it can be the consequence of a more general 187 00:13:14,620 --> 00:13:16,480 and neutral law. 188 00:13:16,680 --> 00:13:21,280 But the Smith decision was not accepted by Congress. 189 00:13:21,740 --> 00:13:26,820 We tried to overturn it with a law called the Religious Freedom 190 00:13:27,020 --> 00:13:33,300 Restoration Act of 1993, which was supposed to restore religious 191 00:13:33,500 --> 00:13:35,860 exemptions to general rules. 192 00:13:36,060 --> 00:13:40,480 The conflict between the Smith decision and the Religious Freedom 193 00:13:40,680 --> 00:13:46,720 Restoration Act of 1993 is still very strong, and many cases regularly 194 00:13:46,920 --> 00:13:52,080 test the limits of the government's capacity to limit religious freedom. 195 00:13:52,280 --> 00:13:55,340 But the general rule remains unchanged. 196 00:13:55,900 --> 00:14:01,480 It is very hard to find even one country on the face of the planet 197 00:14:01,680 --> 00:14:06,140 where religious freedom is more protected than in the United States. 198 00:14:06,740 --> 00:14:11,260 Religious liberty remains one of the founding values of the US. 199 00:14:11,780 --> 00:14:15,900 Alright, that's it for today, and that's it for our study of 200 00:14:16,100 --> 00:14:16,860 the First Amendment.