Topic Tuesday #142 2015/04/07 "Lemon Sherbert"

In last weeks ORly Radio Podcast, our one year anniversary show, we examined the Lemon Test and the Sherbert Test. Since they are so similar, form, function, method, I have grouped them as The Lemon Sherbert Test for "excessive entanglement" between government and religion.

The recent hubbub about the Religious Freedom Restoration Acts that the individual states are hoisting upon the citizenry got me thinking what the deal was. The original RFRA (1993) was brought about primarily (or under the guise) of supporting indigenous American religious rites, including land use and the use of illicit substances in the practice of their religion. Drugs, kids, I'm talking about Peyote (mescaline). The new state laws extend the law to individual citizens and it works out that it is very possible to use these laws to promote religious discrimination, looking a lot like bigotry ala segregation but for GLBT and other unprotected classes. So... How can you tell that the government has stepped in the doo doo? A fairly simple test, that in true government fashion was invented twice. 

The Sherbert Test  came about in Sherbert v. Verner in 1963. It works as follows:

For the individual, the court must determine:

• whether the person has a claim involving a sincere religious belief, and

• whether the government action is a substantial burden on the person’s ability to act on that belief. Expanded: If government confronts an individual with a choice that pressures the individual to forego a religious practice, whether by imposing a penalty or withholding a benefit, then the government has burdened the individual's free exercise of religion.

If these two elements are established, then the government must prove

• Interest Prong: that it is acting in furtherance of a “compelling state interest,” and

• Narrowly-Tailored Prong: that it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

The Lemon Test  similarly came from Lemon v. Kurtzman in 1971. It breaks down like this:

The requirements for legislation concerning religion, is threefold:

1. Entanglement Prong - The statute must not result in an "excessive government entanglement" with religious affairs.

2. Effect Prong - The statute must not advance nor inhibit religious practice

3. Purpose Prong - The statute must have a secular legislative purpose.

If any of these prongs are violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.

Now, let's break this into the Lemon Sherbert Test.

Three seems to be a magic number, so let's keep with three "prongs".

1. Entanglement Determination Prong: Does an established religious practice run against a government interest? Then the Government cannot advance nor inhibit the free exercise of religion with its secular (religion neutral legislative) purpose.
2. Narrowly-Tailored Interest Prong: In the event that the least burdensome government action to religion is still in conflict with a practice for furtherance of a “compelling state interest", the state interest will overrule the free exercise of religion. (National Security Loophole, which I estimate why the Sherbert test is prefered in RFRA legal challenges.)
3. Purpose Prong: The government's purpose/actions must adhere to the constitution and be in the best interest to the citizenry without endorsing a religious belief.

But to be even clearer:

Government, may not endorse or burden a religion. Government must work around religion without interfering in, or endorsing, the practice thereof - unless a compelling state interest makes compromise infeasible for greater national interests within the bounds of the constitution.

There... Now, hopefully, you understand how to determine if there is a violation of a religious interest by government action. Typically, what we see is a misunderstanding of the rights of the religious versus the abilities of the government to govern. Religions do not exist in a vacuum and must deal with the laws of the land. Even Jesus said, "Give back to Caesar what is Caesar's and to God what is God's." Mark 12:17