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Seton Hall University eRepository @ Seton Hall Student Works Seton Hall Law 2025 Child Marriage in Relation to the Free Exercise Clause and the Establishment Clause Mahima Alam Follow this and additional works at: https://scholarship.shu.edu/student_scholarship  Part of the Law Commons  1I. INTRODUCTION While underage marriage may not seem that prevalent in our culture, many religious groups often encourage this concept. It may not be an outright requirement, but some religious sects do promote marrying earlier.1 This can particularly be true in the Christian, Jewish, and Muslim communities where early marriage is promoted to pre-empt and prevent sexual relations prior to marriage or is viewed as part of a parent’s faith.2 For example, in Utah, children marry by sixteen with parental consent and sometimes by fifteen, with parental and judicial consent.3 Samuel Shaffer was a leader of the Knights of Crystal Blade, a cult offshoot of Mormonism.4 Shaffer stated he “sincerely believed that child marriage was a correct principle from God.”5 Another example would be Nevada, where the rate of child marriage is the highest in the region.6 “Nevada is home to many different religions and religious sects . . . Approximately six out of every 1,000 children will be married in Nevada.”7  “Child marriage” refers to a marriage in which at least one of the parties is under the age of eighteen.8 There were nearly 300,000 child marriages in the United States between 2000 and 2018, and the majority were young girls being married to adult men.9 Currently in the United States, twenty-four out of fifty states allow children to marry at the age of sixteen.10 Two states  1 Azza Karam, Faith-Inspired Initiatives to Tackle the Social Determinants of Child Marriage, THE REVIEW OF FAITH & INTERNATIONAL AFFAIRS, 13(3), 59–68 (2015), https://doi.org/10.1080/15570274.2015.1075754  2 Id. 3 Marci A. Hamilton, 2020 Report on Child Marriage in the United States, CHILD USA (May. 8, 2020). 4 Id. at 25. 5 Id. at 26. 6 Id. at 22. 7 Hamilton, supra note 3.   8 Child Marriage, UNICEF, last visited, May 21, 2024, https://www.unicef.org/protection/child-marriage#:~:text=Child%20marriage%20refers%20to%20any,in%20childhood%20across%20the%20globe.  9 Child Marriage In The United States, EQUALITY NOW (Jul. 12, 2023), https://equalitynow.org/learn_more_child_marriage_us/. 10 Child Marriage Laws by State 2024, WORLD POPULATION REVIEW (2024), last visited, May 21, 2024, https://worldpopulationreview.com/state-rankings/child-marriage-laws-by-state.   2allow children to marry at the age of fifteen.11 Most states require parental consent if the children are getting married prior to the legal age of eighteen.12 In states that allow underage marriage, there exists a “statutory rape exception” because in those states, “child marriage is considered a valid defense to statutory rape.”13 The most egregious examples include a 74-year-old man marrying a 17-year-old girl in Alabama and three 10-year-old girls being married to men in their mid-20's and early 30’s in Tennessee.14 There has been a movement in recent years to amend marriage age laws to protect children from child marriage.15 States have recently made efforts in eliminating the parental and judicial processes and officially setting the age of consent at eighteen.16 For example, in Michigan, Governor Gretchen Whitmer signed a final bill which raised the age of consent for marriage to eighteen years old.17 In 2018, Governor Phil Murphy of New Jersey signed a bill that banned marriage under the age of eighteen, regardless of parental consent.18 Thus, there is a clear movement to eliminate child marriage, without any sort of religious exemption. The holding from an old Supreme Court decision–that child labor laws applied even to religious parents who wanted their children to work–now seems appropriate: As demonstrated in Prince v.  11 Id.  12 Marriage Age By State, WISEVOTER (2024), last visited, May 21, 2024, https://wisevoter.com/state-rankings/marriage-age-by-state/#tracker_introduction. 13 Child Marriage In The United States, EQUALITY NOW (Jul. 12, 2023), https://equalitynow.org/learn_more_child_marriage_us/.  14 Child Marriage Laws by State 2024, WORLD POPULATION REVIEW (2024), last visited, May 21, 2024, https://worldpopulationreview.com/state-rankings/child-marriage-laws-by-state. 15 Ending Child Marriage in the United States: Progress, Lessons Learned, and Where We Go from Here, TAHIRIH JUSTICE CENTER (Nov. 26, 2023), https://www.tahirih.org/news/ending-child-marriage-in-the-united-states-progress-lessons-learned-and-where-we-go-from-here/#:~:text=The%20national%20campaign%20to%20end,through%20a%20special%20court%20proceeding.  16 Gov. Whitmer Signs Final Bill in Package Protecting Children, Officially Banning Child Marriage in Michigan, GOVERNOR GRETCHEN WHITMER (Sept. 27. 2023), https://www.michigan.gov/whitmer/news/press-releases/2023/09/27/whitmer-signs-final-bill-in-package-protecting-children-officially-banning-child-marriage#:~:text=LANSING%2C%20Mich.,marriage%20to%2018%20years%20old.  17 Id.  18 New Jersey Governor Signs Law Banning Underage Marriage, AP NEWS (June 22, 2018), https://apnews.com/general-news-f4ab94a0b9444a01b803750491220983.   3Massachusetts, while parents are free to make martyrs of themselves, they are not allowed to make martyrs of their children before they reach the age of legal discretion.19 In relation to religion, the Constitution does not require or allow a religious exemption for child marriage when states eliminate the current system of parental and judicial approvals. More specifically, in the states that now ban child marriage, the Free Exercise Clause20 would not require one to accommodate religious parents seeking allowance for their minor daughters to marry. The court would analyze the claim in two ways. One way would be through the rational basis test as shown in Emp. Div., Dep't of Hum. Res. of State of Or. v. Smith.21 Another way would be through the strict scrutiny test where a compelling governmental interest is needed for the law to be valid. Strict scrutiny is likely to be applied if there is a state RFRA involved or if there are hybrid protection claims involved, as seen in Wisconsin v. Yoder,22 but the State’s justification would override the religious claim. On the other hand, if a state banned child marriage but retained a religious exemption for parents seeking marriage for their underage children, the Establishment Clause23 would be violated in three ways. One way would be if a religion is given unfettered privilege, as shown in Estate of Thornton v. Caldor. The second way would be if there is an abandonment of secular purposes in favor of religious purposes, as demonstrated in both Caldor and Texas Monthly v. Bullock. Lastly, third-party harms are a significant factor, as illustrated in Prince v. Massachusetts24 and Cutter v. Wilkinson.25  19 Prince v. Massachusetts, 321 U.S. 158, 170 (1944). 20 “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. 21 Emp. Div., Dep't of Hum. Res. of State of Or. v. Smith, 494 U.S. 872 (1990). 22 Wisconsin v. Yoder, 406 U.S. 205 (1972). 23 Id. 24 Prince, 321 U.S. 158 (1944). 25 Cutter v. Wilkinson, 544 U.S. 709 (2005).  4This paper will proceed as follows: Section II will talk about how not having religious exemptions for child marriage relates to the Free Exercise Clause. More specifically, I will speak on the application of rational basis and the application of strict scrutiny when a state RFRA26 is involved, when hybrid constitutional protections are involved, and lastly, in the discretionary granting of an exemption. Section III will discuss how the Establishment Clause is implicated if there was a child marriage ban and a religious group was exempt. I will speak on the privileging of religious practices, the abandonment of secular purposes in favor of religion, and third-party harms. Lastly, in Section IV, I will analyze child marriage alongside the Free Exercise Clause and the Establishment Clause. II. FREE EXERCISE CLAUSE A. APPLICATION OF RATIONAL BASIS When there are no religious exemptions for child marriage, rational basis from Smith may apply.27 As noted, some religious communities promote underage marriage. In states that allow underage marriage as part of their laws, those “religious” child marriages are allowed. But for states that make no exception to an 18-year minimum marriage age requirement, the question becomes whether a court would mandate a religious exemption to allow those child marriages to go forward. In such states, the answer is a firm “no” because the Smith rational basis standard of review applies when the challenged law is facially neutral and generally applicable. Since a law without an exception is neutral and general, it comports with the Free Exercise Clause regardless of any burden placed on the claimant.  26 Religious Freedom Restoration Act. Christopher C. Lund, Religious Liberty After Gonzales: A Look at States RFRAS, 55 S.D. L. REV. 466, 475 (2010). 27 Smith, 494 U.S. 872 (1990).  5In Smith, the respondents were drug and alcohol abuse rehabilitation counselors.28 Respondents were discharged for ingesting peyote, a hallucinogenic drug, during a religious ceremony.29 They were subsequently denied unemployment compensation by the Employment Division as they were disqualified for “work-connected misconduct” under an Oregon statute.30 The possession of peyote was also a crime in Oregon.31 In Smith, respondents stated that the ingestion of peyote in the Native American Church was important and similar to the religious use of alcohol in the Christian faith.32 Although the state does generally prohibit the use of hallucinogenic drugs for recreational purposes, respondents contend that they deserved accommodation as the general prohibition was not applicable to the peyote’s use in genuine religious ceremony.33 In Smith, the Court focused on the Free Exercise Clause and the respondents’ contention that their religious motivation for using peyote is greater than the reach of criminal law that is generally applicable.34 Prior to Smith, the standard for judicial review under Sherbert v. Verner and Wisconsin v. Yoder was strict scrutiny, where the government had to have a compelling interest behind a law that denied free exercise of religion, and no less restrictive alternative. Despite this precedent, the Court in Smith held that “an individual’s religious beliefs [does not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”35 The Court held that the Free Exercise Clause “does not relieve an individual  28 Id. at 874. 29 Id. 30 Id. 31 Id. at 875. 32 Id.  33 Id. 34 Id. 35 Id. at 878–79.  6of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes conduct that his religion prescribes.”36 Sherbert and Yoder were not overruled, and strict scrutiny continues to apply when the situations involved individualized assessments and hybrid rights. In Sherbert, the employee was discharged because she could not work on Saturday, her Sabbath day.37 The Employment Security Commission, through an individualized evaluation, denied her unemployment compensation.38 The Court held that the disqualification from benefits did impose on Sherbert’s free exercise of religion because the State did not have any compelling interest to deny her the benefits, since the State does not place the same burden on the Sunday worshipper.39 Another example of strict scrutiny being applied would be in Yoder, where the Amish parents challenged the compulsory-attendance law because formal high school education is hostile to their religious beliefs.40 The Court held that both their free exercise and parental rights were being infringed on and the State’s compelling interest in education did not justify infringing on both constitutional rights.41 The Smith case involved the Free Exercise Clause on its own, so it did not involve any individualized government assessment like Sherbert or any hybrid claim like Yoder.42 The Court in Smith refused to produce a private right to ignore generally applicable laws.43 B. ALTERNATIVE APPLICATION OF STRICT SCRUTINY BASED ON A STATE RFRA Although it is likely that the rational basis standard would apply to any law banning child marriage, there is the alternative possibility that strict scrutiny may apply. In response to Smith,  36 Id. at 879 (citing to United States v. Lee, 455 U.S. 252, 263, n. 3 (1982)). 37 Sherbert v. Verner, 374 U.S. 398, 399 (1963).  38 Id. at 401.  39 Id. at 403–06. 40 Yoder, 406 U.S. 205, 211 (1972). 41 Id. at 231. 42 Smith, 494 U.S. at 882. 43 Id. at 886.  7the Religious Freedom Restoration Act (“RFRA”) was signed into federal law in 1993.44 RFRA was intended to reinstate the Sherbert/Yoder strict scrutiny standard in Free Exercise Clause cases and stated “that a government action may substantially burden an individual's exercise of religion only if the government demonstrates that the action furthers a compelling governmental interest and is the least restrictive means of furthering that interest.”45 While Smith illustrated the application of the rational basis standard, RFRA illustrates the application of the strict scrutiny standard. Because the federal RFRA is not applicable to the states,46 28 states across the country have now passed state RFRAs, which are analogous to the federal RFRA.47 State RFRAs eliminate the Smith standard and require state and local laws that impede religious freedom to be justified by a compelling interest that is being advanced through the least restrictive means.48  C. ALTERNATIVE APPLICATION OF STRICT SCRUTINY BASED ON HYBRID CONSTITUTIONAL PROTECTIONS The rational basis standard illustrated in Smith does not apply when there are hybrid constitutional protections involved. Parents have the right to direct the religious upbringing of their children, so the topic of child marriage, which might involve parental arrangements for their children reinforced by religious communities, likely triggers strict scrutiny. In Yoder, since there were both Free Exercise Clause rights and parental rights being infringed, the strict scrutiny standard applied.49 In Yoder, respondents were members of the Old Order Amish religion and  44 Religious Freedom Restoration Act, L. 103–141, §2, Nov. 16, 1993, 107 Stat. 1488.  45 Id.  46 City of Boerne v. Flores, 521 U.S. 507, 536 (1997). 47 Religious Freedom Restoration Act Information Central, BECKET, last visited, May 21, 2024, https://www.becketlaw.org/research-central/rfra-info central/#:~:text=28%20states%20have%20passed%20a,best%20states%20for%20LGBT%20individuals. 48 Lund, supra note 26 at 475. 49 Yoder, 406 U.S. at 231.  8lived in Wisconsin.50 In Wisconsin, there was a compulsory school-attendance law which required children to attend public or private school until the age of sixteen.51 Once their children completed the eighth grade, the respondents refused to send them back to school.52 Respondents reasoned that they sincerely believed sending their children to school would expose them to the danger of the church community and endanger their own way of life.53 The Old Order Amish community had a fundamental belief that “salvation requires life in a church community separate and apart from the world and worldly influence.”54 Compulsory attendance in high school would also take away Amish children from their community during a crucial and formative time during their adolescence.55 An expert witness testified that the Amish community succeeded in preparing their high school age children to be productive members of their society so all of these reasons would result in the destruction of the Amish community.56  Furthermore, the Court referenced Pierce v. Society of Sisters, where it was held that a state statute compelling school attendance at a public school interfered with the interests of the parents.57 Pierce suggested the importance in “the values of parental direction of the religious upbringing and education of their children in their early and formatives years” and how that has a very high place in our society.58 The Yoder Court reasoned that a State’s interest in universal education was not completely free from passing strict scrutiny when it impinges on fundamental interests protected by the Free Exercise Clause and the traditional interests of parents with  50 Id. at 207. 51 Id. 52 Id.  53 Id. at 209. 54 Id. at 210. 55 Id.  56 Id. at 212. 57 Id. at 213 (citing Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925)). 58 Id.   9regards to raising their children in a religious manner.59 The Yoder Court then held that no matter how “strong the state’s interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests.”60  The Yoder Court analyzed whether the Amish beliefs rested on secular considerations or actual religious belief, and whether their religious faith and mode of life was inseparable and interdependent.61 If it was inseparable and interdependent, then there was a valid Free Exercise issue. The traditional way of life for the Amish, without compulsory education, was not just a matter of personal preference but “intimately related to [their] daily living.”62 The Court concluded that secondary schooling contravened with the “basic religious tenets and practice of the Amish faith, both as to the parent and the child.”63 It was shown through religious history and almost 300 years of consistent practice, that compulsory formal education would gravely endanger the free exercise of the respondents’ religious beliefs.64 The Court stated that there are instances when the activities of individuals are subject to regulation by the state to promote health, safety, and general welfare.65 However, despite being subject to the broad police power of the state, there were areas protected by the Free Exercise Clause, even under regulations of general applicability.66 “A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.”67   59 Id. at 214. 60 Id. at 215. 61 Id.  62 Id. at 216. 63 Id. at 218. 64 Id. at 219. 65 Id. at 220. 66 Id.  67 Id. at 220.  10The State advanced two arguments supporting its compelling interest: one being that education was necessary to prepare citizens in the current political system to preserve freedom and secondly, that education prepares individuals to become self-reliant and self-sufficient.68 However, the respondents introduced evidence that illustrated that an additional one to two years of formal high school for the Amish children would not do much to serve those two interests.69 While the goal of the State’s education is to prepare the child for life in modern society with the majority, the Amish do not live in the modern way of life as they are in the minority.70 Their goals are so intertwined with the fundamental tenets of their faith that compulsorily sending their children to formal high school violates their entire belief system.71 The State claimed that the respondents were fostering ignorance in their children, so the children must be protected by the State.72 However, evidence showed that the Amish community was a successful social unit in society, even if they were a minority.73 The Amish were not opposed to education but to the conventional formal education given to the majority.74 “A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.”75 The State also contended that an additional one or two years of compulsory high school education is necessary because if some of these children decide to leave their Amish community in the future, they will be ill-equipped without such an education.76 However, there  68 Id.  69 Id. at 222.  70 Id.  71 Id.  72 Id.  73 Id. 74 Id. at 223. 75 Id. at 224. 76 Id.   11was no specific evidence that if they leave their communities, Amish children will be burdens on society due to their educational shortcomings.77  In Yoder, the Court held that accommodating the religious objections to compulsory education by the Amish will not impair the physical or mental well-being of the children.78 When comparing the State’s interest in education in Yoder with the State’s interest in protecting children’s well-being with regards to child marriage, there is a significant difference. In Yoder, the Amish was a tight-knit and isolated community where sending their children to continue education greatly interferes with their faith’s custom: a custom that has been ongoing for the past 300 years. When comparing that with the effect child marriage has on religious practices, the interference is not as great. A State’s interest in child welfare and protecting minors from marriage is very compelling, especially when there is not as significant of an interference with religion. The State’s interest would be justified as it is to protect the mental, physical, and emotional well-being of minors.  The State clearly has a compelling interest when it comes to protecting children from dangerous or life-altering situations. Prince illustrated the conflict between a religious group, such as the Jehovah’s Witnesses, and state authority.79 In Prince, Sarah Prince was the aunt of Betty. M. Simmons, who was 9 years of age.80 In Massachusetts, state laws prohibited children from selling, exposing, or offering for sale any magazines or any other articles of merchandise in a public place.81 Both Prince and Betty testified that they were Jehovah’s Witnesses and ordained ministers.82 Prince distributed “Watchtower” and “Consolation,” and one of the days, she took  77 Id.  78 Id. at 234. 79 Prince, 321 U.S. 158, 159 (1944). 80 Id. 81 Id. at 160–61. 82 Id.   12Betty with her, and Betty distributed copies on the street.83 Prince claimed that Betty was “exercising her God-given right and her constitutional right to preach the gospel . . .”84 In addition to the freedom of religion claim, Prince claimed she had a parental right claim through the Due Process Clause.85  The Court reasoned that propagandizing the community, whether for religious or political purposes, created difficult situations for adults to face.86 For children, it will be even more difficult and include harmful psychological or physical injuries.87 Similar to the prohibition of child marriage, the Prince Court analyzed the stated violations of the Free Exercise Clause along with the State’s significant interest of protecting children through its prohibition on child labor. Unlike Yoder, Prince did not explicitly apply strict scrutiny. Nevertheless, Prince held that the State’s interests regarding children’s welfare were greater than the private interests of religious freedom or parental rights. While parents were free to make martyrs of themselves, they were not allowed to make martyrs of their children before they reached the age of legal discretion.88   D. FURTHER APPLICATION OF STRICT SCRUTINY IN THE DISCRETIONARY GRANTING OF AN EXEMPTION There are fifteen states that allow children below the age of sixteen to be married and there are states which require “judicial approval and/or if one party is pregnant or has had a child.”89 There is data that shows that Judges in Kentucky have approved of marriages between  83 Id.  84 Id. at 662. 85 Id. at 164. 86 Id. at 169–170. 87 Id. 88 Id. at 170. 89 Understanding State Statutes on Minimum Marriage Age and Exceptions, TAHIRIH JUSTICE CENTER, 1 (Aug. 1, 2020).   13very young girls, as young as fifteen, and much older men, as old as thirty.90 When judicial approval is involved, there is a sort of discretion involved, which is like the individualized assessment in Sherbert which triggered a strict scrutiny analysis. This is also similar to Fulton v. City of Philadelphia, where the discretionary exemption from the non-discrimination requirement in the city’s foster care rendered the contract not neutral or generally applicable,91 thus triggering strict scrutiny review. In Fulton, the City stopped referring children to a foster care agency, Catholic Social Services (“CSS”) because they would not certify same-sex couples due to its religious beliefs.92 CSS believed that “marriage is a sacred bond between a man and a woman,” and did not have an issue with certifying gay or lesbian individuals as single foster parents.93 While Smith held that generally applicable laws do not require the State to meet the strict scrutiny standard, the City’s nondiscrimination policy in Fulton did not meet the requirement of being neutral and generally applicable.94 The process the City used “considered particular reasons for a person’s conduct by providing a mechanism for individual exemptions.”95 The law here was also not generally applicable because it prohibited religious conduct while potentially allowing similar secular conduct.96 “The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it ‘invite[s]’ the government to decide which reasons for not complying with the policy are worthy of  90 June Leffler, As Child Marriage Drop, Hundreds Still Marry in Kentucky Each Year, LOUISVILLE PUBLIC MEDIA (Aug. 29, 2017), https://www.lpm.org/investigate/2017-08-29/as-child-marriages-drop-hundreds-still-marry-in-kentucky-each-year.  91 Fulton v. City of Philadelphia, 593 U.S. 522, 533 (2021). 92 Id. at 527. 93 Id. at 530. 94 Id. at 533. 95 Id.  96 Id. (citing to Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. at 520, 524–28 (1993)).  14solicitude . . . here, at the Commissioner's ‘sole discretion.’”97 Thus, when applying strict scrutiny, the Court held that the City interests of maximizing the number of foster parents, protecting itself from liability, and equal treatment of potential foster parents were not compelling enough.98 The Court stated that the question is whether the City had a compelling interest in denying an exception to CSS and it did not, especially because in the facts of this case, “the creation of a system of exceptions under the contract undermines the City’s contention that its non-discrimination policies can brook no departures.”99  III.  ESTABLISHMENT CLAUSE A. PRIVILEGING OF RELIGIOUS PRACTICES There is an Establishment Clause issue present when a particular religious group or a religious ceremony is given unfettered privilege to the exclusion of other secular concerns. If a child marriage ban contains only a religious exemption, it may be considered such a privilege. In Caldor, the Court analyzed whether a particular religious exemption would violate the Establishment Clause.100 In Caldor, Donald E. Thornton began working for respondent Caldor Inc., which was a clothing store chain.101 The stores used to be closed on Sundays, but after revision of state laws, respondent kept the business open on Sundays.102 Respondent required its managerial employees to work every third or fourth Sunday of the month and Thornton initially complied, even though Sunday was his Sabbath day.103 Thornton refused to work on Sundays, invoking the protection of Connecticut’s statute which provided that: “No person who states that  97 Id. at 537 (citing to Smith, 494 U.S. at 884).  98 Id. at 541. 99 Id. at 541–42. 100 Est. of Thornton v. Caldor, Inc., 472 U.S. 703 (1985). 101 Id. at 705. 102 Id.  103 Id. at 705–06.  15a particular day of the week is observed as his Sabbath may be required by his employer to work on such day. An employee's refusal to work on his Sabbath shall not constitute grounds for his dismissal.”104 The respondent offered to transfer Thornton to a Massachusetts store closed on Sundays or to a nonmanagerial position for a lower salary, but Thornton refused.105 Thornton eventually resigned after being transferred to a clerical position and sued respondent, stating he was discharged from his managerial position in violation of the Connecticut statute, which violated the Establishment Clause.106  The Supreme Court of Connecticut applied the Lemon Test,107 which was the Establishment Clause test at the time, and held that the statute had the primary effect of advancing religion because only the employees who designate a Sabbath are entitled to not come into work on that day.108 The Court observed that the statute required the Board to decide themselves which religious activities are protected by the statute and this type of inquiry is the type of discriminating state surveillance which causes “excessive governmental entanglements between church and state.”109 The Court held that the extreme favoring of this particular religious practice of rest on the Sabbath, without considering the interests of any other affected party, violated the Establishment Clause.110 The Connecticut statute in question here guaranteed every employee who observed Sabbath the right to not work on that day, no matter the burden or  104 Id. at 706. 105 Id.  106 Id. at 707. 107 "To meet constitutional requirements under that Clause, a statute must not only have a secular purpose and not foster excessive entanglement of government with religion, its primary effect must not advance or inhibit religion.” Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). The Lemon test has been abandoned and replaced by a focus on coercion and history. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022). However, since the Supreme Court has provided no guidance on the question of religious exemptions, the paper assumes that the Establishment Clause cases relating to exemptions remain good law.  108 Caldor, 472 U.S. at 707–08. 109 Id. at 708. 110 Id.   16inconvenience this imposed on the employer or fellow employees.111 The statute made employers and employees conform their own business practices to accommodate religious practices.112 The State essentially commanded that “Sabbath religious concerns automatically control over all secular interests at the workplace” and took “no account of the convenience or interests of the employer or those of other employees who do not observe a Sabbath.”113  The Court further noted that there was no exception under the statute for the Friday Sabbath observer who may be a schoolteacher, and no special consideration to whether the employer would be substantially burdened economically or whether the employer has made reasonably accommodation proposals to the employee wanting to observe Sabbath.114 Although the Court employed the Lemon framework to reach its conclusions, it did not need that framework to reach its conclusions. This is especially important for applicability of Caldor as good precedent because Lemon has been abandoned as an Establishment Clause test.115 Quite apart from Lemon, the Caldor Court found that “the First Amendment ... gives no one the right to insist that in pursuit of their own interests' others must conform their conduct to his own religious necessities.”116 The Court held that the unfettered favor given to Sabbath observers over all other interests contravene a fundamental principle of the Establishment Clause.117  B. ABANDONMENT OF SECULAR PURPOSES IN FAVOR OF RELIGIOUS PURPOSES The Supreme Court has held that weighing in favor of religious purposes, over secular purposes, violated the Establishment Clause. This was seen in Texas Monthly v. Bullock, where a  111 Id. at 708–09. 112 Id. at 709. 113 Id.  114 Id. at 709–10. 115 Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 510 (2022).  116 Caldor, 472 U.S. at 710 (citing to Otten v. Baltimore & Ohio R. Co., 205 F.2d 58, 61 (CA2 1953)). 117 Id. at 710.  17publisher of nonreligious periodicals challenged a Texas statute that provided a sales tax exemption for religious periodicals.118 In Bullock, the Texas statute essentially exempted from its sales tax any periodical which was published or distributed by a religious faith.119 The Court analyzed whether this exemption violated the Establishment Clause and the Free Press Clause of the First Amendment.120 Texas Monthly was not a religious faith, and its articles did not contain periodicals promoting any, so it continued to pay sales tax.121 The District Court of Texas ruled in favor of Texas Monthly, stating that the Establishment Clause was violated, but the Texas Court of Appeals reversed.122 The Court of Appeals applied the Lemon test, finding that the exemption served the secular purpose of separating church and state, the exemption did not have the primary effect of advancing or inhibiting religion, and lastly, the exemption did not produce government entanglement with religion.123  The Supreme Court here reversed the Court of Appeals’ decision.124 The Court stated that the Constitution prohibits legislation “that constitutes an endorsement of one or another set of religious beliefs or of religion generally.”125 The Establishment Clause clearly prohibited the State or the government from abandoning secular purposes to favor religion.126 The Court noted that it was not a problem if government policies with secular purposes also incidentally benefit religion, as the two can often overlap.127 The Court referenced Widmar v. Vincent, which held that a state university making its space available to nonreligious student groups may not deny  118 Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989). 119 Id. at 5.  120 Id.  121 Id. at 6. 122 Id. 123 Id. at 6–7. 124 Id. at 7.  125 Id. at 8.  126 Id.  127 Id. at 10.   18equal access to religious groups. 128 However, in Widmar, there were benefits derived by religious organizations that flowed to a broad spectrum of nonreligious groups.129 The Court also referenced Walz v. Tax Comm’n of New York City, where a property tax reduction was given not just to one particular religious group but to all houses of religious worship within a broad class of property owned by nonprofit and quasi-public corporations.130 The property tax in Walz did not have the purpose of sponsoring religion, but “rather possessed the legitimate secular purpose and effect of contributing to the community's moral and intellectual diversity and encouraging private groups to undertake projects that advanced the community's well-being . . .”131  The Bullock Court held that the sales tax exemption violated the Establishment Clause. Every tax exemption affects nonqualifying taxpayers, forcing them to be both indirect and vicarious donors.132 When a government directs a subsidy only to religious organizations, “it provides unjustifiable awards of assistance to religious organizations” and conveys “a message of endorsement” to other members of the community.133 The Court stated that it is not its responsibility to specify which permissible secular objective the State should pursue to justify a tax exemption, but the Court is responsible to ensure that any exemption does not have “the purpose or effect of sponsoring certain religious tenets or religious belief in general.”134 C. THIRD PARTY HARMS In several Supreme Court decisions, the existence of third-party harms provides an important part of the analysis in finding an Establishment Clause violation. One of these cases  128 Id. (citing to Widmar v. Vincent, 454 U.S. 263 (1981)).  129 Id. at 11.  130 Id. at 12 (citing to Walz v. Tax Comm’n of New York City, 397 U.S. 664, 673 (1970)). 131 Id. at 12.  132 Id. at 14.  133 Id.  134 Id. at 16.  19was Caldor, discussed above, and Cutter v. Wilkinson.135 After Caldor, in Cutter v. Wilkinson, there was a challenge to the constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”).136 The petitioners were inmates of institutions operated by the Ohio Department of Rehabilitation and Correction, and followers of nonmainstream religions.137 They claimed that the Ohio prison officials failed to accommodate their religious exercise and that under RLUIPA, they were entitled to a strict scrutiny review of the restricting burdens.138 The respondents contended that RLUIPA improperly advanced religion in violation of the Establishment Clause.139  The District Court held that Section 3 of the RLUIPA did not conflict with the Establishment Clause.140 It did not believe that the enforcement of RLUIPA compromised prison security.141 The Court of Appeals reversed the decision, referencing the Lemon test, holding that RLUIPA “impermissibly advanc[es] religion by giving greater protection to religious rights than to other constitutionally protected rights.”142 The Supreme Court mentioned the conflicting pressures between the Free Exercise Clause and the Establishment Clause and how “there is room for play in the joints” between the two clauses.143 The Court ultimately held that RLUIPA fitted into that room, and it was a “permissive legislative accommodation of religion that is not barred by the Establishment Clause.”144   135 Mark Storslee, Religious Accommodation, The Establishment Clause, and Third-Party Harm, 86 U. CHI. L. REV. 871, 894 (2019). 136 Cutter, 544 U.S. 709, 712 (2005) (RLUIPA: “No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, unless the burden furthers a compelling governmental interest, and does so by the least restrictive means.”) 137 Id.  138 Id.  139 Id. at 713. 140 Id. at 717 (Section 3 of the RLUIPA applies to institutionalized persons, in particular). 141 Id.  142 Id. at 718. 143 Id. at 719. 144 Id. at 720.  20The Court first stated that RLUIPA was compatible with the Establishment Clause because it alleviated government-created burdens on religious exercise.145 The Court mentioned that when properly applying RLUIPA, any reviewing court must analyze the burdens the requested religious accommodations may have on non-beneficiaries, or third parties.146 Any reviewing court must also ensure that the RLUIPA is administered neutrally across all different religious faiths.147 Here, the situation was different because RLUIPA was specifically for state-run institutions such as prison systems or hospitals.148 In these state-run institutions, the government exerted a stronger degree of control over civilians, and this led to the disabling of private religious exercise.149 So, RLUIPA’s purpose was to protect the religious needs of institutionalized people who may be dependent on the government’s permission and accommodation when attempting to exercise their faith.150  The Supreme Court here did not believe that RLUIPA elevated the accommodation of religious exercise over the institutional need for order and safety.151 The Court distinguished this case’s facts with Caldor, where the statute violated the Establishment Clause because it significantly weighed the interests of those who followed Sabbath over all other secular interests.152 Here, RLUIPA would be applied in a balanced way, balancing both the prisoners’ religious needs and the prison’s need to order and security.153 To satisfy whether there was a compelling governmental interest behind RLUIPA, a reviewing court would consider the whole  145 Id.  146 Id. 147 Id. 148 Id. at 720–21. 149 Id. at 721. 150 Id. 151 Id. at 722.  152 Id. 153 Id.  21context of the situation.154 Lastly, Section 3 of the RLUIPA did not differentiate between the different religions.155 The Court referenced Kiryas Joel, where the court invalidated a state law that had a separate school district exclusively for a special sect of religious Jews.156 But here, RLUIPA did not provide any privileged status to any specific religion and did not single out any faith for disadvantageous treatment.157  “Religious accommodations . . . need not come packaged with benefits to secular entities.”158 If they did, then all attempts at religious accommodations would fail.159 The Court also brought up how if the above were true, the Ohio prison system would not be able to accommodate the traditionally recognized religions by providing inmates with chaplains and by allowing the inmates to assemble for worship.160 While the prison system allowed all these accommodations for religion, it did not allow the same for secular purposes, such as access to publicists or political consultants or allowing inmates to assemble for political rallies.161 The Court stated that the federal Bureau of Prisons had managed the prison system for more than a decade and under the same heightened scrutiny as RLUIPA.162 However, there was never an issue of compromising prison security and order, while also accommodating the private religious exercise of the inmates.163 Therefore, RLUIPA did not have any unreasonable impact on prison accommodations and did not violate the Establishment Clause of the First Amendment.164    154 Id. at 723. 155 Id.  156 Id. at 723–24 (citing to Kiryas Joel, 512 U.S. 687, 690 (1994)). 157 Id. at 724. 158 Id.  159 Id. 160 Id. at 724–25. 161 Id.  162 Id. at 726. 163 Id.  164 Id. at 725–26.  22IV.   ANALYSIS AND THESIS A. THE EFFECT OF THE FREE EXERCISE CLAUSEON CHILD MARRIAGE If there existed a law which banned child marriage and did not have a religious exemption or any other exemption mechanism, the Free Exercise Clause would not require one. For child marriage, rational basis from Smith would likely apply. Just as the law in Smith was one of general applicability, a law banning child marriage would be generally applicable as well. The Free Exercise Clause does not relieve a person of obligation to comply with a neutral law of general applicability based on their religion.  Strict scrutiny may apply instead of rational basis if there are hybrid constitutional protections involved. With the issue of child marriage, both the Free Exercise Clause and fundamental rights of parents may come into play. In Yoder, strict scrutiny was applied, and a compulsory-attendance law did not pass. Yoder also referenced Pierce, where it was held that universal education was not free from passing strict scrutiny, especially when it impinged on fundamental rights such as the traditional rights of parents over their children. Here, with a law banning child marriage, parents may claim they had a fundamental right as parents over their children and when to allow them to marry. However, a situation involving child marriage is drastically different than Yoder. Yoder had a unique set of facts as it involved the Amish faith and tradition that has lasted for centuries. Ensuring the Amish children do not have to continue an additional one or two years of formal education in high school was important to the fundamental tenets of the Amish religion. Contrarily, child marriage is not essential to any religion’s fundamental tenets. No known religion requires the marriage of children.165 “Some  165 Caylin Jones, Saying "I Don't" to Child Marriage: Creating A Federal Minimum Marital Age Requirement Through the Treaty Power, 26 SW. J. INT'L L. 396, 415 (2020).  23religions may require an individual to be a virgin before marriage, which many equate to marrying young, but there is no requirement under any religion that an individual must be under eighteen years old in order for the union to be valid.”166 While customs may exist where minors are encouraged to marry young, child marriage itself is not necessary or fundamental to any religion’s basic tenets.167 Thus, in Yoder, the Amish’ free exercise was unduly burdened as the law impinged on fundamental tenets of their faith, even though the compulsory-attendance law was of general applicability. Thus, even under strict scrutiny, parents could not show a burden like the parents in Yoder, and even if they could, the compelling interest (and lack of less restrictive alternatives) would override that parental claim. Similarly, in Prince, the Court easily held that parental rights over their children may be overridden by state interests. In a state with both a child marriage ban and a state RFRA, the ban would be scrutinized under strict scrutiny. State RFRAs require state and local laws that impede the free exercise of religion to be justified by a compelling interest and through the least restrictive means. The Prince Court is instructive. In that case, the Court held that child labor laws were properly applied against parents who sought a religious exemption. The Court held that if a state law impinges on religious freedom, it must show that the law is “necessary for or conducive to the child’s protection against some clear and present danger.”168 Like in Prince, where the Court considered the child’s mental and physical well-being, here, a law banning child marriage would significantly protect a child’s mental and physical well-being. The Prince Court reasoned that propagandizing the community can be a difficult challenge to adults, so it would be even worse for children having to do the same. Similarly, marriage can come with a various set of challenges  166 Id.  167 Id.  168 Prince, 321 U.S. at 167.  24for adults so it would prove to be even more difficult for children under the age of eighteen. If there was a state law banning child marriage and strict scrutiny applied, the law would stand because the government has very compelling interests to enforce the law and no less restrictive alternative to enforcing it. Currently, there are states which allow judicial approval for children to be married under sixteen. As seen in Fulton, when a decision is made by government discretion, the law is not neutral or generally applicable and is subject to strict scrutiny. If Fulton discretionary procedures were applied to Judges approving child marriage, the religious groups asking for judicial approval would need to be treated equally as groups asking for such approval for secular reasons. As held in Sherbert, a religious party seeking an exemption cannot be treated differently than another similarly situated party. If the State denied child marriage to a religious party under this discretionary procedure, but not to a secular one, there must be a compelling interest and that might be difficult to justify.169 As is clear from the hybrid and state RFRA scenarios, a neutral and general ban on underage marriage easily supports a compelling interest; but a judicial approval provision presents a harder case. B. THE EFFECT OF THE ESTABLISHMENT CLAUSE ON CHILD MARRIAGE If there exists a law that does have a religious exemption for child marriage, the Establishment Clause would be violated. As held in Caldor, the Establishment Clause is violated when one particular religious practice is given unfettered privilege. If the child marriage ban contained only one exemption for religious child marriages, then the extreme privileging of the  169 Tandon v. Newsom, 593 U.S. 61 (2021); Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020).    25religious marriage would violate the clause under a Caldor-like analysis. If there was a law banning child marriage and a religious exemption existed which allowed minors who are members of religious groups to marry, that is privilege. The Caldor Court applied the Lemon test and held that the Establishment Clause was violated as allowing those following a Sabbath to take days off does not have a secular purpose, is excessive entanglement of government with religion, and advances religion. Even though the Lemon has been abandoned, as stated in Caldor, the First Amendment still gives no one the right to insist that in pursuit of their own interests, others must conform their own conduct to their religious necessities. The Caldor Court noted how the statute allowing Sabbatarian employees to take days off did not consider the burdens imposed on the employer or fellow employees. Similarly, here, if there was a religious exemption for child marriage, it would not consider the burdens imposed on the minors themselves. These burdens include detriments to the mental and physical well-being of the children, as illustrated in Prince. Further, the Establishment Clause is violated when there is an abandonment of secular purposes in favor of religious purposes. This is shown in Bullock, where the Court held that the Establishment Clause was violated because there was a sales tax exemption for associations that published religious periodicals but no exemption for those publishing nonreligious, secular periodicals. The Court referenced Widmar and Walz, where the Establishment Clause was not violated because the benefits to religious groups in those cases “flowed” to many nonreligious groups and the general community. Here, a religious exemption allowing child marriage would not provide the same “flowing” of benefits to the general society. As shown in Prince, the children would face more harm from this kind of marriage than any benefit. The Bullock Court stated that an exemption was a “blatant endorsement of religion” and produced greater  26entanglement between the State and religion than a denial of an exemption would and similarly here, allowing child marriage based on religion would be a “blatant endorsement.” Thus, if the child marriage ban contained only one exemption, for religious underage marriages, then the extreme privileging of the religious marriage would violate the Establishment Clause under both a Thornton and Bullock analysis. Cutter focused on the extent of third-party harm. In order for a religion-only exemption to be constitutional, the Court must take into account the burdens on third parties, ensure that the exemption is being administered neutrally among religious groups, and balance the total context of the situation. The religious exemption must actually be promoting religious exercise rather than giving a religious privilege. While the Cutter Court held that Section 3 of the RLUIPA did not violate the Establishment Clause, the situation here regarding child marriage is different. The Cutter Court did not believe that RLUIPA caused any harm to the prison institution’s need for order and safety, but contrarily here, the religious exemption would cause significant harm to the minors themselves, especially young girls. Young girls are often coerced into marriage, particularly when the young girl did not complete school and the groom could likely be prosecuted for statutory rape.170 “Young girls are also uniquely vulnerable since teen girls are much more likely to become pregnant if they have an older intimate partner.”171 Women who marry when they are minors are fifty percent more likely to drop out of high school and four times less likely to attain a college degree.172 Young wives are also more likely to become pregnant and become mothers when they may not be maturely prepared for that responsibility.173  170 Teri Dobbins Baxter, Child Marriage as Constitutional Violation, 19 NEV. L.J. 39, 51 (2018). 171 Id.  172 Id.  173 Id.   27Thus, both Cutter illustrates a situation where the Establishment Clause is not violated but when regarding a religious exemption for child marriage, this case is clearly distinguishable. V. CONCLUSION There has been a movement in recent years to amend marriage age laws to protect children from child marriage.174 This has led to reform in thirty-four states to either limit or end child marriage.175 If there existed a law which banned child marriage and contained no religious exemption, the Free Exercise Clause would not require one. If the rational basis test is applied, the law would survive. If the strict scrutiny test is applied, the law would survive then as well because the government has very compelling interests in favor of the law. When there are judicial discretionary proceedings that exist that allow child marriage, and religious groups are not given that same exemption, that would likely violate the Free Exercise Clause because of the demand for comparable treatment. If there existed a law that does have a religious exemption for child marriage, that exemption would violate the Establishment Clause because religion would be given unfettered privilege in favor of secular interests and there would be significant third-party harm.   174 TAHIRIH JUSTICE CENTER, supra note 15. 175 Id.

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