Ch15 Freedom of Religion The Establishment Clause PDF

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FREEDOM OF RELIGION:

THE ESTABLISHMENT CLAUSE Outline I. Introduction A. Purpose: As noted in Thomas Jefferson quote, the purpose of this clause is to establish “a wall of separation between church and state . . .” B. Everson v. Board of Education, 330 U.S. 1 (1947), established some types of governmental action that are violative of the Establishment Clause 1. Neither federal nor state government may establish an official church 2. The government may not “force or influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion” 3. No individual may be “punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance” 4. The federal or state governments may not prefer one religion over another; includes not preferring religion or nonreligion 5. The government may not participate in the affairs of a religious organization or church, nor can such organization participate in the affairs of government C. How can you tell if a governmental action is in violation of the Establishment Clause? Lemon v. Kurtzman, 403 U.S. 602 (1970), gives an answer to this question: This case gives a three-part test and all three parts must be satisfied in order for the governmental action to be acceptable under the Establishment Clause: 1. The action must have a valid, secular purpose (purpose) 2. The action’s primary or principal effect must neither advance or prohibit religion (effect), and 3. The action must not foster an excessive government entanglement with religion and this would include not creating an excessive degree of political division along religious lines D. Critics of Lemon: The Court may move to a simpler, single test, i.e., does the state’s conduct amount to an “endorsement of religion”? This possibility was expressed in Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) 1. Overruling Lemon? Maybe, or 2. Court may just stop using Lemon and begin using something else, for example, Board of Education of Kiryas Joel v. Grumet, 512 U.S. 87 (1994) 3. The Court didn’t use Lemon and only mentioned it briefly, but did hold that establishing a school district consisting of only members of a particular Jewish sect violated the Establishment Clause II. Sunday Closing Laws and the Establishment Clause A. Laws requiring businesses to be closed on Sunday do not violate the Establishment Clause 1. McCowan v. Maryland, 366 U.S. 420 (1961): The statutes as administered today have a secular purpose and effect in that they provide a uniform day of rest for all citizens; the Court held that it was irrelevant that the laws were originally passed for religious reasons 98

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2. The statute had overlapping secular and religious purposes and thus there is no violation of the Establishment Clause a. The statute did not have a primarily religious purpose b. The fact that the statute had any religious purpose was incidental 3. Thornton v. Caldor, Inc., 472 U.S. 703 (1985): A statute relating to Sabbath observance was in violation of the Establishment Clause a. A Connecticut statute required all employers (including private employers) to give any employee the day off on that employee’s Sabbath b. The statute went beyond the government’s right to “accommodate” the needs of a religious observer c. The preference given to the Sabbath was absolute; the statute “impermissibly advance[d] a particular religious practice” d. A statute that required an employer to make a “reasonable attempt” to accommodate a religious interest probably would not violate the Establishment Clause e. This type of reasoning has often led to tension between the Establishment Clause and the Free Exercise Clause (1) There are several cases in which the government was required to accommodate the needs of individuals to observe the Sabbath (2) The Exercise Clause was used to allow this III. Church Involvement in Government A. Giving churches a veto provision in who can or cannot get a liquor license “enmeshes church in the exercise of substantial governmental power,” Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982) B. This violated the antientanglement principle found in Lemon C. Ceremonies: The Establishment Clause may be violated if the government conducts a ceremony or puts on a display that refers to a religious subject 1. If God is only referred to in the ceremony, this will probably not be enough to violate the Establishment Clause a. Example: Opening each daily session of the federal or state legislature with prayer, Marsh v. Chambers, 463 U.S. 783 (1983) b. These practices have deep historic roots going back to the First Congress; the Founding Fathers did not regard this as a violation of the principles of church and state c. Prayer at a high school commencement is different, however—this will be discussed later in the chapter, but Court has held commencement prayer as a violation of the Establishment Clause, but this is because the opening of the legislature is a situation where adults are free to enter and leave at will and graduation ceremonies involve minors and attendance is important d. What about the Pledge of Allegiance? (1) The primary purpose of the pledge is not to promote religion (2) Historical reasoning in Marsh v. Chambers applies here (3) Long-standing tradition and historical practice (4) In the recent case of Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), the Court refused to discuss the substantive issue and instead focused on Newdow’s standing to challenge the phrase “under God” in the pledge as a violation of the Establishment Clause 2. Religious displays a. The test would seem to be: “Would a reasonable observer seeing the display conclude that the government was endorsing religion in general or endorsing a particular religion?” (1) If it is advancing a particular religion, there is a violation of the Establishment Clause (2) Context seems to be crucial here: (a) If it is a religious symbol and is displayed by itself in a reserved spot, a reasonable observer would believe this as an establishment or preference for a particular religion

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(b) If the display has other nonreligious symbols as part of the display or a sign nearby indicating that the display was supplied by a private party without governmental approval or if the government is known to allow space for private individuals to put up a display, a reasonable observer would conclude that there is no endorsement of a religious belief (3) Summary of cases involving displays: (a) If the government puts up the display, it is more likely to be a violation of the Establishment Clause (b) Context remains very important in this discussion i. Is it a “holiday display” or a religious message? ii. Nonreligious symbols are important when looking at context (c) The reasonable observer test is still being used by the Court; however, a bare majority (5) supports this test (d) Seven justices voted to allow a display; three looked at history and context to make a decision and the other four believe that public displays that were placed by private parties are okay, so long as the public forum being used is accessible to all private groups (e) The government entity can require the private party to place a sign on the display making it clear that the religious display is not a government display (f) The government entity is also free to close the display to all private parties (4) Lynch v. Donelly, 465 U.S. 668 (1984) (5) Allegheny County v. American Civil Liberties Union, 492 U.S. 573 (1989) (6) Capitol Square Review Board v. Pinette, 515 U.S. 753 (1995) b. What is an accommodation and what is favoritism? (1) The government cannot favor religion over nonreligion and this includes giving religious groups greater access to public forums than nonreligious groups (2) Larson v. Valente, 456 U.S. 228 (1982) (a) This was the first time the Court used strict scrutiny in an establishment case (b) The Court did not use the Lemon test (c) The Lemon test is traditionally used when religion is preferred over nonreligion, but not when one religion is preferred over another (d) The government must have a compelling interest and a solution that is narrowly tailored in order to pass the strict scrutiny test in a religion versus religion case (e) The Court did look at the third prong of the Lemon test (the entanglement prong) in this case i. This prong was designed to avoid politicizing religion ii. The Court keyed in on the government’s intent to play favorites (3) Favoritism: Revisit Board of Education of Kiryas Joel Village v. Grumet, 512 U.S. 687 1994) (a) Two problems in this case: i. Religious criteria was used to establish the boundary lines of a school district and the creation of the district was a special favor for a particular religious group ii. Remember: This is a case that questions the use of the Lemon test 3. Financial aid to religious schools a. The Court uses the Lemon test in these cases (1) Secular purpose (2) Principal effect must neither advance or inhibit religion (3) No excessive entanglement (4) Court also adds: May not be politically divisive b. Elementary/secondary education versus higher education (1) The Court is more likely to allow assistance to an institute of higher education than an elementary or secondary institution

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(a) Religious instruction in parochial school permeates the institution, but not so with higher education (b) The Court still uses the Lemon test for university cases (c) Roemer v. Maryland Public Works Board, 515 U.S. 819 (1995) i. States can fund religious publications at universities so long as they also fund nonreligious publications, and ii. So long as the funds go to a third party providing a service rather than to the organization that publishes the religious publication (d) The use of college facilities by religious student groups i. Widmer v. Vincent, 454 U.S. 263 (1981) ii. Religious student groups can use public college facilities as a matter of equal access; the student use policy must be truly neutral between religious and nonreligious organizations iii. The Court decided the matter on free speech grounds iv. Equal access does not give any state approval to religious sects or their beliefs v. The primary effect of the policy would not be the advancement of religion vi. The Widmar Court did not say that the outcome would be different if there was evidence that the religious groups would dominate the use of the public facilities, but suggested that dominance would cause the policy to have the “primary effect” of advancing religion (2) Elementary/secondary education (a) Direct aid: Public aid given directly to students or their parents is more likely to be upheld (b) Aid that assists all students, both public and private, is more likely to be upheld (c) Financial aid must have a primary, secular purpose (d) Examples of financial aid: i. Transportation—Everson v. Board of Education, 330 U.S. 1 (1947) ii. Public school students were also included in the reimbursement scheme iii. When the Court looked at the secular benefit they found that all students are being transported to school, so the aid was rendered in a neutral manner (e) Textbooks—Everson v. Board of Education, 392 U.S. 236 (1968) i. The Board adopted a program designed to supply textbooks to both public and parochial school students ii. This is acceptable so long as textbooks are distributed to both types of students and the textbooks are nonreligious in nature iii. The Court has also dealt with computers and nontextbooks in the same way a) Materials must be nonreligious and not used for religious purposes b) Private schools must be eligible for the assistance on the same terms as public schools (f) Salary supplements—This was an issue in the Lemon case i. The state must not subsidize salaries for a religious or parochial school, even if the teacher is teaching a secular subject ii. The Court held this because there is no way to make sure the funds are not used for religious purposes (g) Lending public school teachers to teach special subjects at a parochial school: i. This is a different matter ii. It does not violate the Establishment Clause, Agostini v. Felton, 117 S. Ct. (1997), Why? a) The Court held that despite previous holding, direct aid is not necessarily invalid if it aids the educational function

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b) The presence of public school teachers in the parochial schools does not symbolically demonstrate a union between church and state c) The courses taught by the public school teachers were remedial in nature d) The Courts didn’t believe that this was excessive entanglement and pointed to the provision for an unannounced monthly visit by public supervisors to monitor the situation and ensure that there was no excessive entanglement e) Justice Souter dissented as he believed that type of aid amounted to a subsidy of a parochial school 1) Using public school teachers to teach religious subjects furthered the religious mission of the school, and 2) This aid gives the impression of a public endorsement of the parochial school’s religious mission (h) Services: Publicly funded services can be given to parochial schools so long as they are given to all public and private schools i. The publicly funded services must be for a secular purpose ii. Agostini and Mitchell v. Helms, 520 U.S. 793 (2000) 4. Religion and other public school issues a. Religious instruction (1) McCollum v. Board of Education, 333 U.S. 203 (1948) is the earliest case in this area (a) The Board of Education allowed religious instruction on public school property during school hours (b) Attendance was voluntary (c) The Court struck down this plan as a violation of the Establishment Clause i. The program helped groups obtain students through use of the state’s compulsory public school system ii. This was excessive entanglement (2) Zorch v. Clauson, 343 U.S. 306 (1952), was the second case in this area (a) The Court in this case upheld a program similar to one struck down in McCollum (b) What was the difference? i. Students who participated were released to receive religious instruction at a site away from the public school’s facilities ii. Attendance was voluntary b. Use of school facilities by student groups (1) Revisit the earlier information on the use of facilities at universities (a) The Court made Widmar applicable to high schools receiving federal financial assistance (b) The Equal Access Act, 20 U.S.C. §§4071 et seq. (1984), requires high schools to allow student religious groups to hold meetings before and after school hours if the school receives financial assistance, but only if the school allows other extracurricular groups to use the facilities as well (c) The meeting must be student-initiated, voluntary, and carried out without sponsorship of the school or its employees (d) The Court upheld the Equal Access Act in Board of Education v. Mergens, 496 U.S. 226 (1990) (e) Exceptions: i. If attendance is not voluntary or if school officials participate, then the Establishment Clause is violated ii. Also, if the meetings are held during schools hours, it is also a violation iii. If the school denies access to nonreligious groups, but allows religious groups to use the facilities, this too is a violation c. Prayer in school

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(1) A state-composed or state-mandated prayer is a violation of the Establishment Clause (2) Engel v. Vitale, 370 U.S. 421 (1962) (3) No child was compelled to recite the prayer and it was a nondenominational prayer, but this didn’t save it (4) The scheme was part of a “religious program carried on by the government” d. Bible reading in public schools (1) Abington School District v. Schempp, 374 U.S. 203 (1963): In this case the Court struck down daily Bible reading in classrooms as a violation of the Establishment Clause (2) The Court used two of the three prongs of the Lemon test to decide this case: (a) The secular purpose prong (b) The primary purpose prong (3) The court held that the Bible readings were clearly a religious exercise (4) Justice Stewart dissented, noting that noncompulsory reading of the Bible did not violate the Establishment Clause and that nonparticipating students had alternate activities during the time of the readings e. Silent, voluntary prayer (1) Wallace v. Jaffree, 472 U.S. 38 (1985) (2) This case struck down an Alabama statute authorizing one minute of silence at the beginning of each school day for prayer or meditation (3) The Court used the Lemon test to analyze this statute and found that the statute had no secular purpose and had a primary effect of aiding religion (4) The Court also found that there was excessive governmental entanglement (5) The sole purpose of this statute was to endorse religion and thus was a violation of the Establishment Clause f. Academic study (1) It is permissible to study the Bible as a part of an academic course of study (2) This course of study must take place in a purely academic manner g. Ceremonies: The prominent case here is Lee v. Weisman, 505 U.S. 57 (1992) (1) This case involved prayer at a graduation ceremony (a school-sponsored activity) (2) The Court found a violation of the Establishment Clause, even though the prayer was nondenominational (3) Justice Kennedy wrote that the state had effectively coerced students into participating or supporting the prayers (a) The ceremony was too important for students to miss (b) The only way students could attend was to accept the participation in prayer (c) This made the prayer involuntary (d) The combination of school sponsorship and peer pressure required the students to stand or maintain a respectful silence during the prayer and this was enough for the Court to consider it coerced participation (4) Justice Scalia wrote the dissent: (a) He found there was no official compulsion and therefore there was no violation (b) He also wrote that invocations and benedictions at public ceremonies are part of an old tradition, with the objective of unifying participants, and this secular/historical purpose should keep this type of prayer from being a violation of the Establishment Clause (5) Student sponsored speeches: Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000) (a) A student was elected by other students to give a speech, and if the student chose, to do a prayer (b) A pre-football game prayer by a student chaplain of the student council was allowed by this public school

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i. This student’s job was to pray on the public address system prior to each varsity football game ii. An election was held to a) Determine whether a prayer ought to be said at football games, and if the vote was yes, then the students b) Elected a chaplain to give the prayer iii. The Court struck down this practice as a violation of the Establishment Clause a) The Court held that this was not a private speech as the school had argued b) The Court also noted that the majority of the students would win the election and for the entire year, the minority view on prayer would be left out c) The school policy encouraged a religious message d) The overall impression was that the school was sponsoring the prayer as it was at a school event, in a school facility, and over a school-owned PA system e) The real government purpose was to have prayer at the football games and this was not a neutral policy, but a sham to disguise the government’s intent to promote prayer f) The Court further held that this was a coercion of nonbelievers at a traditional gathering of the school community iv. Justice Rehnquist wrote the dissent and argued that a) The prayer was a form of private speech b) The students chose what was to be said and who would say it c) He saw no violation of the Establishment Clause (6) Curriculum: It may not be modified to promote one religion over another or at the expense of nonreligious views (a) Evolution: Epperson v. Arkansas, 393 U.S. 97 (1968) i. Involved an antievolution statute that barred the t...