First Amendment Religion Clauses and the Takings Clause

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First Amendment Religion Clauses and the Takings Clause

Key Takeaways Explain This Topic AI

The Free Exercise Clause does not exempt religious objectors from neutral laws of general applicability (Employment Division v. Smith); laws that target religion get strict scrutiny.

The Establishment Clause, after Kennedy v. Bremerton (2022), is interpreted by reference to historical practices and understandings, displacing the Lemon test and the endorsement test.

Government discrimination against religion in otherwise available benefit programs violates the Free Exercise Clause (Trinity Lutheran; Carson v. Makin).

A regulatory taking occurs when government permanently physically invades property (Loretto) or denies all economically viable use (Lucas); otherwise apply the Penn Central balancing factors.

The Takings Clause requires 'just compensation' (fair market value) when private property is taken for 'public use,' which is read broadly to include economic development (Kelo).

Last updated: June 2026

The Free Exercise Clause

The Free Exercise Clause bars government from punishing or burdening religious belief absolutely — the government can never regulate or punish belief itself. Religious conduct is different. The governing rule is Employment Division v. Smith (1990): a neutral law of general applicability that incidentally burdens religious practice does not violate the Free Exercise Clause and receives only rational-basis review, even if it makes religious exercise harder. Thus a general drug ban applies to sacramental peyote use; a general law need not carve out religious exemptions.

The exception is decisive: a law that is not neutral — one that targets religion or a particular faith, or is not generally applicable because it contains secular exemptions but no religious ones — triggers strict scrutiny . Church of Lukumi Babalu Aye v. Hialeah (1993) struck ordinances that effectively targeted Santeria animal sacrifice; they were gerrymandered to burden religion and failed strict scrutiny. Recent decisions (e.g., COVID-era worship-restriction cases) emphasize that if a law exempts comparable secular activity but not religious activity, it is not 'generally applicable' and gets strict scrutiny.

Note that the federal RFRA statutorily restores strict scrutiny for federal-government burdens on religion (e.g., Hobby Lobby ), but as City of Boerne held, RFRA cannot be imposed on the states under Section 5. On the bar, separate the constitutional Free Exercise rule ( Smith : neutral general laws are fine) from the statutory RFRA standard (strict scrutiny for federal action).

The Establishment Clause After Kennedy v. Bremerton

The Establishment Clause forbids government from establishing or endorsing religion. For decades the test was the three-part Lemon v. Kurtzman test (a law is valid only if it has a secular purpose , a primary effect that neither advances nor inhibits religion, and does not foster excessive government entanglement with religion), later supplemented by the endorsement test (does a reasonable observer perceive government endorsement of religion?).

That framework has been displaced . In Kennedy v. Bremerton School District (2022), the Court held that a public-school football coach had a constitutional right to pray on the field after games and announced that the Establishment Clause must be interpreted by reference to 'historical practices and understandings' — expressly abandoning Lemon and the endorsement test. The modern inquiry asks whether the challenged government action is consistent with the Nation's historical traditions concerning religion, and whether it amounts to coercion of religious observance.

For the bar, you should: (1) know the history-and-tradition standard now governs Establishment Clause questions; (2) still recognize the Lemon factors (purpose, effect, entanglement) and the endorsement test as the prior framework, since transitional questions may reference them; and (3) apply the religious-discrimination line of cases below, which is grounded in Free Exercise but interacts with Establishment concerns. Coercion — pressuring people to participate in religion (e.g., school-sponsored prayer at graduation, Lee v. Weisman ) — remains a core Establishment Clause violation.