Establishment of Religion

1. Establishment of Religion

2. Establishment of Religion: Introduction • 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?

3. Three views of the establishment clause held by the founders • A solid wall of separation exists. • The state may not prefer on religion over another. • The government may not establish a national religion.

4. 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.

5. 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.

6. Notes on Everson • Incorporated the establishment clause. • Ruled that there is a strong wall of separation between church and state. • Again, used a strict definition of support for religion, but came to a liberal outcome. • Led to diverse conclusions about this clause. Indeed, majority and dissent used the same standard to reach different conclusions.

7. 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?

8. 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.

9. Abington and the Burger Court • The question is whether this would stay the standard once Warren left and Burger took over. Three key points: • 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.

10. 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?

11. 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.

12. 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?

13. Aftermath of Lemon: Burger Court • Nyquist(1973): Aid for building repair VIOLATESLemon. • 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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!

19. 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).

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.