Constitutional Law Class 41: The Establishment Clause. 1547-1580, Supp. 53-68
1. BIG PICTURE ISSUE: Limits on the establishment of religion (acts that discriminates
between religions, acts that promote religion)
2. TEXT: Amendment I: Congress shall make no law respecting an establishment of
religion – this provision was first found to be incorporated and applied to the states in
Everson v. Board of Education (1940). Justice Thomas has argued that the Court was
wrong to find incorporation: he thinks the establishment clause was meant to prevent the
federal government from establishing churches that would compete with existing state
churches. This approach would undo most of the existing Establishment Clause law.
3. ESTABLISHMENT CLAUSE THEORIES: (1) Separationist theory; (2)
Nonpreferentialist theory; (3) Accomodation : Example: Allegheny County v. Greater
Pittsburgh ACLU (1989)
4. DISCRIMINATION AMONG RELIGIOUS GROUPS: Generally agreed that only
allowed if strict scrutiny is met.
5. NONDISCRIMINATORY REGULATIONS: Court applies 3-part test set out in
Lemon v. Kurzman: First the statute must have a secular legislative purpose; second,
its principal or primary effect must be one that neither advances nor inhibits religion;
finally, the statute must not foster an excessive government entanglement with
religion. Is this test favored by judges endorsing separationist theory? (e.g. Justice
Black, Marshall) Nonpreferentialist theory? (e.g. Justices O’Connor, Blackmun)
Accommodationist theory? (e.g. Justice Kennedy, Scalia, Thomas)
6. THE PROBLEM OF ENSHRINING OFFICIAL BELIEFS:
A.
PUBLIC SCHOOLS - When does religion impermissibly become part of
public school education?
(i) Release time for religious instruction: McCollum v. Board of Education
(1948) (CB 1547) (Black J.) (on school premises); Zorach v. Clauson (1952)
(Douglas J.) (not on school premises)
(ii) Prayer in public schools:
 Engel v. Vitale (1962) (CB p. 1550) (NY state regents composed nondenominational prayer) (Black J.),
 Abington School Dist. v. Schemp (1963) (CB p. 1550) (Bible verses,
Lord’s Prayer) (Clark J),
 Wallace v. Jaffree (1985) (one moment of silence “for meditation or
voluntary prayer”) (Stevens J.),
 Lee v. Weisman (1992) (CB p. 1553) (clergy-delivered prayer at public
school graduation) (Kennedy J.),
 Santa Fe Ind. Sch. Dist. v. Doe (2000) (CB p. 1559) (student-delivered
prayer at school football game) (Stevens J.),
 Good News Club v. Milford Central School (2001) (CB p. 1561)
(iii) Pledge of Allegiance
 Elk Grove Unified School Dist. v. Newdow (2004) (CB p. 1562) (majority
of the Court dismissed for lack of standing; see concurrence of Rehnquist,
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joined by O’Connor and Thomas, on Establishment Clause)
(iii) Curriculum in public schools
 Epperson v. Arkansas (1968) (CB p. 1563) (ban on teaching evolution)
(Fortas J.)
 Edwards v. Aguillard (1987) (CB p. 1564) (ban on teaching evolution
unless accompanied by education in “creation science”) (Brennan J.)
(iv) Displays in Public Schools
 Stone v. Graham ((198) (CB p. 1561) (display of Ten Commandments)
(per curiam)
B.
(i)
(ii)
(iii)

RELIGIOUS SYMBOLISM OUTSIDE THE SCHOOL CONTEXT
Nativity Scenes
 Lynch v. Donnelly (1984) (CB 1570) (Burger J.)
 Allegheny County v. American Civil Liberties Union (1989) (CB p.
1575) (different theories: Stevens, Brennan, Marshall (separationist);
Kennedy, Rehnquist, Scalia, White (accomodationist), Blackmun,
O’Connor (neutrality)
Other Religious Symbols on government property
 Capitol Square Review Board v. Pinette (1995) (CB p. 1577)
 McCreary County ACLU of Kentucky (Supp. p. 53)
 Van Orden v. Perry (Supp. p. 60)
Legislative Prayer
Marsh v. Chambers (1983) (CB p. 1568)
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