The Establishment Clause

1. David L. Hudson Jr. First Amendment Attorney The Establishment Clause

2. Religion Clauses • “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof;” The first 16 words of the First Amendment contain the two religion clauses. • Establishment Clause • Free Exercise Clause

3. Meaning of the Establishment Clause? • “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.” • - Justice Hugo Black

4. Black on the Establishment Clause • “the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.” • “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable.”

5. Justice Jackson on the “wall of separation” • “It can appear as winding as the famous serpentine wall.” • “The fact is that, for good or for ill, nearly everything in our culture worth transmitting, everything which gives meaning to life, is saturated with religious influences, derived from paganism, Judaism, Christianity … and other faiths accepted by a large part of the world’s peoples.”

6. How High Should the Wall Be? • Religious symbol in city seal • “In God We Trust” on the money • Ten Commandments monument in the public park; • Picture of Jesus in public school; • Giving state employees the day off for Good Friday;

7. How to Interpret History? • Northwest Ordinance: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” • Justice William O. Douglas in Zorach v. Clausen (1952): “We are a religious people, whose institutions presuppose a Supreme Being.”

8. School Holiday Display Policy • School holiday display policy provides for menorahs (Jewish religious symbol) and stars and crescents (Muslim religious symbol) but refuses to allow display of creche (Christian religious symbol) … parent of elementary school child sues, claiming violation of the Establishment Clause.

9. Another View – the Rehnquist View • “designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of government between religion and irreligion.” • - William Rehnquist

10. Rehnquist View (cont.) • “It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years.” • - Justice (now Chief Justice) William Rehnquist (1985)

11. Thomas View • Establishment Clause is a federalism provision --- it only prevents government from creating a national church and prevents federal government from interfering with the states on these matters. • At the time of the adoption of the First Amendment, several states had established religions.

12. History: Engel v. Vitale (1962) • New York Board of Regents recommended that school boards adopt a resolution calling for the reading of the following prayer in public school classrooms: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country.”

13. Steven Engel • “The New York Board of Regents composed a prayer which was optional,” Steven Engel said. “However, if your school board chose to use the prayer, your school had to use this one-size-fits-all prayer that doesn’t fit the religious faiths of all people.”

14. Engel and others lose in New York state courts • Consider passage from New York Court of Appeals’ majority opinion: • “Not only is this prayer not a violation of the First Amendment (no decision of this or of the United States Supreme Court says or suggests that it is) but a holding that it is such a violation would be in defiance of all American history, and such a holding would destroy a part of the essential foundation of the American governmental structure. ... That the First Amendment was ever intended to forbid as an ‘establishment of religion’ a simple declaration of belief in God is so contrary to history as to be impossible of acceptance."

15. Engel v. Vitale (cont.) • Court rules 6-1 the practice violates the Establishment Clause. • “It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America.” – Justice Hugo Black

16. Engel v. Vitale (cont.) • “But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion.”

17. Engel v. Vitale (cont.) • “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing official approved religion is plain,”

18. Black Quotes James Madison • '(I)t is proper to take alarm at the first experiment on our liberties. * * * Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?”

19. Steven Engel • For info on Steven Engel, see http://www.firstamendmentcenter.org/analysis.aspx?id=15701

20. Potter Stewart (dissenting) • “With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an 'official religion' is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.”

21. Abington School District v. Schempp (1963) • A Pennsylvania law required the daily recitation of ten Bible verses and the Lord’s prayer in public schools. • A family of Unitarian faith challenged the law on First Amendment grounds.

22. Schempp case • “To withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.” • This was most of what would later become the Lemon test.

23. Schempp (cont.) • “It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.”

24. Stewart Dissents Again • “there are areas in which a doctrinaire reading of the Establishment Clause leads to irreconcilable conflict with the Free Exercise Clause.”

25. Other School Prayer Decisions • Wallace v. Jaffree (1985)(Alabama moment of silence law invalidated) • Lee v. Weisman (1992)(graduation prayer invalidated) • Santa Fe Independent School District v. Doe (student football prayer ruled unconstitutional)

26. Establishment Clause • Lemon Test • Secular Purpose • Primary Effect • Excessive Entanglement

27. Key passage from Lemon • “Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over these many years. Three such tests may be gleaned from our cases. 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 entanglement with religion.’

28. Lemon Test Modified • In 1997 the U.S. Supreme Court modified Lemon by folding the entanglement prong into the effects prong. • Criteria for effects prong: (1) whether gov. aid results in gov. indoctrination; (2) whether recipients of gov. aid are defined by reference to religion; and (3) whether the aid creates excessive gov. entanglement with religion.

29. Alton Lemon • For more info on Mr. Lemon, see http://www.fac.org/analysis.aspx?id=13376

30. Criticism of Lemon Test by Justices • Scalia: “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence again.”

31. New Tests Endorsement • Subjective (purpose) – Was this practice intended to endorse or disapprove of religion? • Objective (effect) – Did the practice actually convey the message that religion was being endorsed or disapproved?

32. New Tests Coercion • Government cannot pressure people into or away from religion • Peer Pressure Counts

33. Justice Kennedy Applies Coercion Test • “It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.” • (in the graduation prayer case – Lee v . Weisman)

34. Latest Decisions from the Court • Pair of split rulings in the Ten Commandments. • Court upholds Ten Commandments monument in public park (Van Orden v. Perry) but .. • Court invalidates Ten Commandments display in Kentucky courthouse (McCreary County, Kentucky v. ACLU)

35. Why the split? • Eight justices voted the same in both cases (4 and 4) • BREYER changed!

36. Latest Case • Town of Greece v. Galloway (2014) • Does town council practice of prayer violate the Establishment Clause? • No, Court says constitutional by 5-4 vote

37. Town of Greece (cont.) • Majority: • “ The prayers delivered in the town of Greece do not fall outside the tradition this Court has recognized. A number of the prayers did invoke the name of Jesus, the Heavenly Father, or the Holy Spirit, but they also invoked universal themes, as by celebrating the changing of the seasons or calling for a spirit of cooperation among town leaders.”

38. Town of Greece (cont.) • Justice Elena Kagan: • “I respectfully dissent from the Court's opinion because I think the Town of Greece's prayer practices violate that norm of religious equality--the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.”