Gretchen Fritchie
Thompson
Mentorship
Freedom of Religion and Establishment Clause
Establish Clause: government cannot create or establish an official church, formally
supporting religious activities, or giving preference to religion. The government also cannot
interfere with the expression of religious beliefs.
Separation between Church and State:
1. Everson v. Board of Education (1947)
a. Facts of case: children of Catholic schools were qualified for reimbursements
to their parents for school bus transportations to and from school. This
reimbursement would come from the state of New Jersey – “child benefit
theory”
b. Question: Does this reimbursement violate the Establishment Clause of the
First Amendment?
c. No: The state did not fund the parochial schools, only the individual parents
2. Lemon v. Kurtzman (1971)
a. Facts of the case: Pennsylvania provided financial support for teacher salaries,
textbooks, and materials for secular subjects to non-secular schools. Rhode
Island provided direct salaries for teachers in non-public schools. This helped
provide the “Lemon test” to determine whether or not policy violates the
establishment clause --i. The policy’s purpose must be secular, not religious
ii. The policy’s primary effect must neither advance nor inhibit religion
iii. The policy must avoid an “excessive entanglement” of government and
religionsometimes a separate factor in Establishment Clause cases
b. Question: Did the Rhode Island and Pennsylvania funding violate the
Establishment Clause by giving money to “church-related educational
institutions?”
c. Yes. To be constitutional, a statute must have a secular purpose. These
programs directly benefited religious schools and required such close state
supervision that it created an “excessive entanglement” with religion.
Religion and Schools:
1. McCollum v. Board of Education (1952)
a. Facts of case: religious leaders were going to public schools in Illinois to offer
voluntary classes. The classes were taken in the school rooms, and children
that were not involved were sent elsewhere to attend secular activities.
b. Question: Did the use of the public school system for religious classes violate
the Establishment Clause?
c. Yes. The public buildings were tax supported and the close cooperation
between the teachers and religion teachers violated the Clause.
2. Zorach v. Clauson (1952)
a. Facts of Case: New York City started a program where students in public
schools could be dismissed from classroom activities for certain amounts of
time to participate in religious functions elsewhere.
b. Question: Does this program violate the Establishment Clause?
c. NO: This “released time” program does not violate the Clause because no
public facilities were being used and no child was forced to attend the religious
classes.
3. Tilton v. Richardson (1971)
a. Facts of the case: The federal Higher Education Facilities Act of 1963 provided
grants to church-supported higher educational systems. The grants were given
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specifically for non-religious buildings, but 20 years after the grant was given,
the building could be used for anything.
b. Question: Does this Act violate the Establishment Clause in the First
Amendment?
c. Yes & No: The Court decided that the 20-year-can do anything you want-clause
was invalid because it did advance religion, but they did not believe that the
giving of aid for secular buildings was against the constitution. College students
are less-susceptible to peer pressure for religion.
Zelman v. Simmons-Harris (2002)
a. Facts of case: Vouchers are provided to children who have not been presented
with good learning standards or do not have enough money to pursue their
education elsewhere. The students are allowed to attend any private or public
school involved in this program, and both religious and non-religious schools
were involved.
b. Question: Do these Ohio vouchers violate the Establishment Clause?
c. No: the vouchers are not being directly given to the school, but given to the
child, and it is their own private choice as to what they do with it.
Engel v. Vitale (1962)
a. Facts of case: The Board of Regents for the state of New York offered an
optional nondenominational recitation of prayer at the start of each school
day.
b. Question: Does the reading of this nondenominational prayer violate the First
Amendment “Establishment clause?”
c. Yes. By approving the prayer, New York automatically approved religion.
Wallace v. Jaffree (1985)
a. Facts of case: Alabama law authorized teachers to conduct “moments of
silence” at school during their classes.
b. Question: Does this moment of silence violate the First Amendment?
c. Yes. The law had no legitimate secular purpose because its legislative history
indicated that “the state intends to characterize prayer as a favored practice.”
Epperson v. Arkansas (1968)
a. Facts of case: Arkansas law prohibited teachers in public institutions from
teaching, or using textbooks, that teach human evolution. Epperson was the
teacher, and she argued that this law prohibited her freedom of speech as well
as the Establishment clause.
b. Question: Does this law violate the establishment clause in the First
Amendment?
c. Yes. This law was passed by Christian fundamentalists, obviously. The
Establishment clause “forbids alike the preference of a religious doctrine or the
prohibition of theory which is deemed antagonistic of a religious particular
dogma.”
Westside Community Schools v. Mergens (1990)
a. Facts of Case: school administration denied students of a Christian group the
same rights for after-school student run clubs as other non-religious groups.
b. Question: was prohibiting this club a violation of the Establishment clause?
c. No. By the rights of the Equal Access act, any extracurricular clubs can be held
even if they are religious. In these groups, the school is not endorsing or
supporting what is being discussed.
Lynch v. Donnelly (1984)
a. Facts of case: a city in Rhode Island annually decorated the city’s shopping
district with a Christmas display. The decorations included Santa Clause,
“seasons greetings”, and the nativity crèche.
b. Question: Did the inclusion of the nativity scene in the middle of the city
violate the Establishment Clause of the First Amendment?
c. No. The Court believed that the nativity scene was not erected in order to
advance any religion, and the decorations included secular symbols such as
Santa and his reindeer as well.
10. Marsh v. Chambers (1983)
a. Facts of case: Nebraska legislature allowed habitual prayer in the federal
court. This practice involves a prayer at the beginning of each session, and uses
a chaplain chosen by the state and paid with state funding.
b. Question: Does the chaplaincy practice of the Nebraska legislature violate the
Establishment Clause of the First Amendment?
c. No. The Court noticed the historical roots of the prayers and distinguished
between schoolchildren and legislatures, who are not “susceptible to religious
indoctrination or peer pressure.”