First Amendment Religion Clauses and the Takings Clause

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.

The Takings Clause: Per Se Takings, Penn Central, and Public Use

The Fifth Amendment (applied to states via the Fourteenth) provides that private property shall not be 'taken for public use, without just compensation.' Two questions: is there a taking, and if so, is it for public use and accompanied by just compensation (fair market value at the time of the taking)?

Possessory (per se) takings. A permanent physical occupation of property, however small, is a per se taking requiring compensation (Loretto v. Teleprompter — a cable box bolted to an apartment building). A permanent total deprivation of all economically beneficial use of land is also a per se (categorical) taking (Lucas v. South Carolina Coastal Council), unless background principles of state nuisance/property law already prohibited the use.

Regulatory takings. Where a regulation merely diminishes value or restricts use short of total wipeout, apply the ad hoc Penn Central balancing factors:

Exactions. Conditions on development permits must satisfy Nollan (an essential nexus between the condition and the projected harm) and Dolan (rough proportionality between the condition and the impact). Public use is read broadly: in Kelo v. City of New London (2005), transferring property to private developers for economic development qualified as a public use because it served a public purpose, though many states responded with statutes narrowing eminent-domain power.

A frequent MBE trap: a mere decline in value or a temporary, reasonable land-use restriction is not a taking; reserve per se treatment for permanent physical occupations and total economic wipeouts, and use Penn Central for everything in between.

Aid to Religion and Integrating the Two Clauses

A distinct line of cases governs government aid that flows to religious institutions and the related rule against discriminating against religion in benefit programs.

The modern doctrine strongly protects religious claimants: under Trinity Lutheran Church v. Comer (2017), a state cannot exclude a church from a generally available public-benefit program (playground-resurfacing grants) because of its religious status; under Espinoza v. Montana (2020) and Carson v. Makin (2022), if a state funds private education through scholarships or tuition aid, it may not exclude religious schools from the program, because doing so penalizes the free exercise of religion.

The throughline: excluding the religious from neutral, generally available benefits is religious discrimination that triggers strict scrutiny under the Free Exercise Clause, and the Establishment Clause does not require such exclusion. Programs of true private choice — aid that reaches religious schools only through the independent decisions of parents (school vouchers, Zelman v. Simmons-Harris) — do not offend the Establishment Clause.

When a fact pattern mixes the clauses, sort it cleanly. If the government is burdening or targeting religious practice, analyze under Free Exercise (Smith for neutral general laws; strict scrutiny if the law targets religion or is not generally applicable). If the government is endorsing, sponsoring, or coercing religion, analyze under the Establishment Clause using the history-and-tradition standard of Kennedy v. Bremerton and the coercion principle of Lee v. Weisman.

If the government is excluding religion from a neutral benefit, that is a Free Exercise discrimination problem under Trinity Lutheran and Carson. For takings, keep the categories straight: permanent physical occupation (Loretto) and total economic wipeout (Lucas) are per se takings; everything in between runs through Penn Central; and exactions must satisfy the Nollan nexus and Dolan rough-proportionality tests before a permit condition may stand.