Establishment of Religion
Establishment of Religion:
Introduction
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This clause is often times in conflict with
the free exercise clause. Why?
•
Key question: How strict should the
separation of church and state be?
Three views of the establishment
clause held by the founders
1.
A solid wall of separation exists.
2.
The state may not prefer on religion over
another.
3.
The government may not establish a
national religion.
The Court’s View
•
The Court has generally claimed that Jefferson and
Madison preferred view no. 1, but it has made
exceptions.
•
Q: How do you read it?
•
The Court did not hear many cases in this area prior
to the 1940s.
• Bradfield v. Roberts (1899): Some aid to religious
entities is okay as long as the money goes for a
secular purpose.
Everson v. Board of Education (1947)
• Does reimbursing parents (with tax dollars) for
transporting their children to private religious
schools violate the establishment clause?
• No. 5-4 vote.
•
The First Amendment only needs to remain neutral.
Here the state does not contribute money to
schools. New Jersey has not breached the high and
impregnable wall between church and state.
Notes on Everson
1. Incorporated the establishment clause.
2.
Ruled that there is a strong wall of separation
between church and state.
3.
Again, used a strict definition of support for
religion, but came to a liberal outcome.
4. Led to diverse conclusions about this clause.
Indeed, majority and dissent used the same
standard to reach different conclusions.
The Warren Court after Everson
•
The Court upheld some supports (busing
and books to religious schools).
•
The Court did not uphold other supports
(prayer and teaching creationism).
•
Q: Did the Court articulate a clear test or
standard?
Setting a Standard after Everson
• Abington Township v. Schempp (1963): Lord’s
Prayer and Bible verses.
• Law must have a SECULAR LEGISLATIVE
•
PURPOSE.
THE PRIMARY EFFECT must neither advance nor
inhibit religion.
•
Some folks did not like this test. Why?
•
Board of Education v. Allen (1968): Loaning
secular books to religious schools is okay.
Abington and the Burger Court
•
The question is whether this would stay
the standard once Warren left and Burger
took over. Three key points:
1.
The Court did not know exactly how to
apply the test.
The ACLU and other groups wanted
DEFINITVE answers.
Burger wrote 69 percent of opinions in this
area.
2.
3.
Burger and the Establishment Clause
• Walz v. Tax Commission of New York (1971): Tax
exemption for religious organizations okay.
•
Added EXCESSIVE GOVERNMENT
ENTANGLEMENT beyond the primary effect.
•
Would this bring down the Abington standard?
Lemon v. Kurtzman (1971)
•
Does the reimbursing of nonpublic schools
for teachers and secular education violate
the establishment clause?
•
Yes. 8-0 vote.
•
Keys: Secular legislative purpose, primary
effect, excessive entanglement.
Aftermath of Lemon: Burger Court
•
Tilton v. Richardson (1971). Decided same
day as Lemon: Aid to religious colleges is
okay. Why?
•
Can you reconcile Lemon, DiCenso, and
Yoder?
•
Has the Court applied the Lemon test
consistently?
Aftermath of Lemon: Burger Court
• Nyquist (1973): Aid for building repair
VIOLATES Lemon.
•
Pittenger (1975): Textbooks OKAY, but NOT
instructional material and equipment.
•
Mueller (1983): Tax deductions for books, tuition,
and transportation OKAY.
•
Zobrest (1993): Sign language interpreter is
OKAY.
Aftermath of Lemon: Rehnquist
Court
• Lamb’s Chapel (1993): Scalia harshly criticizes
Lemon.
•
“Like some ghoul in a late-night horror movie that
repeatedly sits up in its grave and shuffles aboard,
after being repeatedly killed and buried, Lemon
stalks our Establishment Clause jurisprudence.”
• Kiryas Joel Village v. Grumet (1994): Cannot set
up a school district exclusively for Jewish children.
Agostini v. Felton (1997)
•
Have the Court’s establishment clause cases
since Aguilar so undermined it that it is no
longer good law?
•
Yes. 5-4 vote.
•
There is no logical basis to conclude that the
services here are an impermissible subsidy
of religion when offered on campus. Cases
since Aguilar lead us to abandon this idea.
From Agostini to Zelman
•
Mitchell v. Helms (2000): Court upholds
federal aid for educational materials, library
resources, and computer supplies.
•
Overturns: Meek and Wolman.
•
Court turns to a test of NEUTRALITY.
Zelman v. Simmons-Harris (2002)
•
Does the Cleveland voucher program offend the
establishment clause?
•
No. 5-4 vote.
•
Where a government aid program is neutral with
respect to religion, and provides assistance directly
to a broad class of citizens who then direct their aid
to religious schools, the program is not readily
subject to challenge under the establishment clause.
Religious Education of Public School
Students
•
McCollum v. Board (1948): Bringing in
religion teachers to public schools equals
too much intermingling between church and
state.
•
Zorach v. Clausen (1952): Release
programs to allow religious education are
okay. STILL GOOD LAW!
Religious Group’s Use of Public
Facilities
•
Widmar (1981): Equal access for religious
groups does not violate the establishment
clause. COLLEGES ONLY.
•
Mergens (1990): Allows access to
secondary schools.
• Endorsement test (O’Connor).
•
Coercion test (Kennedy).
Religious Group’s Use of Public
Facilities and Public Funds
•
Lamb’s Chapel (1993): Even “radical”
religious groups may have access.
•
Good News Club (1993): Bible studies may
meet in public schools (free speech issue for
the Court).
•
Rosenberger (1995): Funds must be given
to religious newspaper at UVA. The
benefits are neutral.
Teaching Religion in Schools
•
Scopes Trial: Clarence Darrow v. William
Jennings Bryan.
•
Epperson (1968): Court outlaws bans on
teaching evolution. Laws must be
religiously neutral.
•
Leads to Aguillard.
Edwards v. Aguillard (1987)
• Does forcing teachers who teach evolution to also
teach creationism violate the establishment clause?
•
Yes. 7-2 vote.
•
The legislation altered the science curriculum to
reflect endorsement of a religious view that is
antagonistic to the theory of evolution. For this
reason, the act endorses religion in violation of the
establishment clause.
Abington Township v. Schempp (1963)
•
Does the reading of the Bible and the Lord’s
Prayer in a public school violate the
establishment clause of the First
Amendment?
•
Yes. 8-1 vote.
•
The opening bible verses and prayer are a
religious ceremony and were intended by
the state to be so. This is a violation of the
establishment clause.
Lee v. Weisman (1992)
•
Do religious invocations and benedictions
during a public school graduation ceremony
violate the establishment clause of the First
Amendment?
•
Yes. 5-4 vote.
•
The Constitution forbids the state to exact
religious conformity from a student as the
price of attending her own high school
graduation.
Prayer after Weisman
•
•
•
•
•
Lemon still good law.
No consensus on the Rehnquist Court.
Really deciding on a case-by-case basis.
Santa Fe School District (2000): No prayers
at football games.
KEYS: Endorsement, coercion, and
violation of the secular purpose test.
Religious Displays
•
Lynch v. Donnelly (1984): Creche scenes
okay if they are part of a whole display.
•
Allegheny County (1989): Physical setting
is key (Court cannot muster a majority).
•
McCreary (2005): Placement of Ten
Commandments had a religious purpose.
Van Orden v. Perry (2005)
•
Does the establishment clause allow the
display of a monument inscribed with the
Ten Commandments on the Texas State
Capitol grounds?
•
Yes. Plurality vote of 4.
•
The display here has dual significance,
partaking of both government and religion.