The Establishment Clause
POL318 Civil Liberties and Civil Rights
1st Amendment
• Congress shall make no law
respecting an establishment of
religion, or prohibiting the free
exercise thereof; or abridging the
freedom of speech, or of the
press; or the right of the people
peaceably to assemble, and to
petition the government for a
redress of grievances.
Overview of
Establishment Clause Cases
•
•
•
•
History of Wall of Separation
Development of Lemon Test Standard
Erosion of Lemon Test
Examples:
–
–
–
–
Public Support for Private Schools
Prayer and Religion in Schools
Use of Public Facilities by Religious Groups
Religious Displays
Wall of Separation
• Separationist
– Solid wall of separation
• Accomodationist
– Non-discriminatory support or aid to all
religions
– Bar adoption of national religion
"...building a wall
of separation
between Church &
State"
Everson v. Board of Education
(1947)
•
•
•
•
•
Who were the parties?
What were the facts?
What was the legal question?
What was the holding?
What rules were established?
Black’s Opinion
“The ‘establishment of religion’ clause of the First
Amendment means at least this: neither a state nor the
Federal Government can set up a church. Neither can
pass laws which aid one religion, aid all religions, or prefer
one religion over another... No tax in any amount, large or
small, can be levied to support any religious activities or
institutions, whatever they may be called, or whatever form
they may adopt to teach or practice religion. Neither a
state nor the Federal Government can, openly or secretly,
participate in the affairs of any religious organizations or
groups, and vice versa. In the words of Jefferson, the
clause against establishment of religion by law was
intended to erect "a wall of separation between church and
State."
Principles of Everson
• Incorporated establishment clause through the
14th amendment.
• Do not want to prohibit state from extending
general law benefits to all citizens regardless of
their religious beliefs
• State should not favor or handicap religions
• Wall of separation, but may not be breached if
– purpose of aid is secular
– aid indirect
– beneficiaries are children, not churches
Abington Township v.
Schempp (1963)
• Law must have secular purpose
• The effect must be to neither advance
nor inhibit religion
Walz v. Tax Commissioner of
NYC (1970)
• Burger court’s first establishment case
• State property tax exemption
• Introduced excessive entanglement
concept
• Tax exempt status helped retain
separation between religion and state
Lemon v. Kurtzman/
Earley v. DiCenso (1971)
•
•
•
•
•
Who were the parties?
What were the facts?
What was the legal question?
What was the holding?
What rules were established?
Principles of Lemon v.
Kurtzman
• Lemon Test
– Has secular purpose
– Neither advances nor inhibits religion
– Does not create excessive entanglement
between the state and religion
Hypothetical Case
The legislature of the State of Limerick
votes to make Catholicism the official
state religion. Mahatma Gandhi, a state
resident who is a Hindu, challenges this
action on First Amendment grounds.
The state claims that the First
Amendment Establishment Clause only
applies to the federal government. What
is the result?
Review
• Hypothetical Case: Tammy attends the Saints
and Sinners Parochial School. A government
program provides bus service to and from
school for Tammy and her classmates, as
well as for children at public schools. Is
Tammy’s bus transportation a violation of the
Establishment Clause of the First
Amendment?
• Lemon Test?
Agostini v. Felton (1997)
•
•
•
•
•
Who were the parties?
What were the facts?
What was the legal question?
What was the holding?
What rules were established?
Principles of Agostini
• Federally funded program for remedial, supplemental
instruction by public employees at private schools is
not invalid under establishment clause.
• Criteria:
– Does not result in governmental indoctrination
– Does not define participants with reference to
religion
– Does not create excessive entanglement
Zelman v. Simmons-Harris
(2002)
•
•
•
•
•
Who were the parties?
What were the facts?
What was the legal question?
What was the holding?
What rules were established?
Principles of Zelman
Not subject to establishment clause
challenge if
- neutral with respect to religion
- aid directly given to a broad class of
citizens who redirect aid to religious
schools as a result of private choice
- program permits participation of all
schools
School Prayer
• Engel v. Vitale (1962)
• School District of Abington Township v.
Schempp (1963)
• Wallace v. Jaffree (1985)
• Lee v. Weisman (1992)
• Santa Fe Independent School District
(2000)
Lee v. Weisman (1992)
•
•
•
•
•
Who were the parties?
What were the facts?
What was the legal question?
What was the holding?
What rules were established?
Principles of Lee v. Weisman
• ”A state-sponsored and state-directed
religious exercise in a public school"
violates establishment clause
• Coercion
• Religious and beliefs expression cannot
be prescribed or proscribed by the
government
Teaching Religion in Schools
• Epperson v. Arkansas (1968)
• Edwards v. Aguillard (1987)
Epperson v. Arkansas (1968)
• Challenged constitutionality of law
criminalizing teaching of evolution
• U.S. Supreme Court voided law since it
was not religiously neutral
Edwards v. Aguillard (1987)
•
•
•
•
•
Who were the parties?
What were the facts?
What was the legal question?
What was the holding?
What rules were established?
Judgement Day:
Intelligent Design on Trial
Additional Approaches
•
•
•
•
•
Non-preferentialism
Endorsement
Coercion
Social Conflict
Unincorporate establishment clause
Public Facilities
•
•
•
•
•
McCollum v. Board of Education (1948)
Zordach v. Clausen (1952)
Widmar v. Vincent (1981)
Board of Education v. Mergens (1990)
Lamb’s Chapel v. Center Moriches Union Free
School District (1993)
• Rosenberger v. University of Virginia (1995)
• Good News Club v. Milford Central School (2001)
Religious Displays
• Lynch v. Donnelly (1984)
• County of Allegheny v. ACLU (1989)
• McCreary, Kentucky v. ACLU of
Kentucky (2005)
• Van Orden v. Perry (2005)