CONSTITUTIONAL LAW CLASS 42
APRIL 27, 2007
A. TEXT: Amendment I Congress shall make no law respecting an establishment of
religion . . . or abridging. . . the right of the people peaceably to assemble
B. BRIEF OVERVIEW: Freedom of Association
C. GOVERNMENT AID TO RELIGION AND THE ESTABLISHMENT CLAUSE
D. NO BRIGHT-LINE TEST
E. TYPES OF GOVERNMENT AID
1. TAX EXEMPTIONS, e.g. Walz v. Tax Commission (1970) (CB p. 1591)
2. AID TO PAROCHIAL ELEMENTARY AND HIGH SCHOOLS
A. Traditional Approach: (1947)GENERALLY – (a) Is aid available to
all students? Mueller v. Allen (1983) (CB p. 1584) Zobrest (1993) (CB
p. 1593), Zelman v. Simmons-Harris (2002) (CB p. 1599) (b) Is aid
provided to students/parents directly or school? Muller, Zelman (c) Is
aid used for religious instruction? Everson v. Board of Education
(1947) (CB p. 1581) (wall of separation)
B. A new approach? Agostini v. Felton (1997) (CB p. 1595) – Justice
O’Connor test: (i) use for government indoctrination in religion? (ii)
aid favors some religions over others (iii) aid creates excessive
government entanglement with religion
C. A new approach? Mitchell v. Helms (2001) (CB p. 1597) compare
Thomas (joined by Kennedy, Scalia, Rehnquist), O’Connor
concurrence joined by Breyer, Souter dissent joined by Stevens and
Ginsburg
3. AID TO RELIGIOUS COLLEGES AND UNIVERSITIES: More lenient
approach – Tilton v. Richardson (1971) (CB p. 1590), Roemer v. Board of Public
Works (1976) (CB p. 1590)
4. RELIGIOUS GROUP ACCESS TO SCHOOL FACILITIES: Widmar v.
Vincent (1981) (CB p. 1289, 1591), Lamb’s Chapel (1993), Good News Club
(2001) (CB p. 1561, 1291)
5. STUDENT RELIGIOUS GROUP RECEIPT OF GOVERNMENT FUNDS:
Rosenberger v. Rector (1995) (CB pp. 1593, 1324)