Freedom of Religion

Freedom of Religion Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof;

McCollum--Introduction to Religion • 1. How long have we debated religion in our schools? • 2. What did the case McCollum do for the religion argument? • 3. What are Common Schools and what effect did it have on religion and schools? • 4. What was McCollum’s problem with the “released time” religious education? • 5. What parts of the Constitution were violated according to McCollum? • 6. What was the response to McCollum? • 7. What did New York (Zorach) do in response to McCollum? Why was this practice OK? • http://www.youtube.com/watch?v=-GXbiftNFTs

McCollum vs. Zorach—A good religious argument • Release time programs:

Two Religious rights under the First Amendment—Balance of both! • Establishment Clause • Cannot prohibit, promote, or encourage religion. EX. Books, school prayer, vouchers, transportation—governmental ban from interference with religion • Free Exercise • Can’t prohibit someone from practicing his or her religion.

Views of the Supreme Court on Religion with balance • The Lemon Test • The State regulation must: • Be secular in purpose (non religious purpose) • Neither aid nor hinder a religion (no religious effect) • Avoid excessive entanglement (usually issues of money) • endorsement test • Any governmental endorsement of a specific religion or religion in general • coercion test • Practices that actually coerce people into participating in religious exercises • “ceremonial deism” • Historically rooted public practices that invoke theistic belief, but do not directly try to establish a church-”under God” etc

Warm-up • Using McCollum and Zorach, discuss the constitutionality of the following North Carolina Law • News story on religion

Explain • “It 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 Religion, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority, which can force a citizen to contribute three pence only of his property for the support of any on establishment, may force him to conform to any other establishment in all cases whatsoever?” • James Madison

Test Prayer Now I lay me down to study I pray the lord I won’t go nutty If I should fail to learn this junk I prayed the lord I will not flunk But if I do, don’t pity me at all, Just lay my bones down in the study hall Tell my teacher I did my best Then pile my books upon my chest Now I lay me down to nest And I pray I pass tomorrow’s test If I should die before I wake That’s one less test I’ll have to take

Why do we have separation of church and state? • Religion is too personal, too sacred, too holy to permit its “unhallowed perversion” by government; • Union of government and religion destroys Government and degrades religion • Government established religions and religious persecutions go hand in hand. • The power and prestige of government would be used to control, support or influence a certain religion and would change with each administration.

Freedom of Speech and Freedom of Religion are protected very differently under the Constitution. • Freedom of Speech and Free Exercise—all are encouraged to participate. Both are forms of expression. • Establishment Clause---This clause was a specific prohibition on forms of GOVERNMENT intervention on religious affairs. There is no equal counterpart in the Free Exercise Clause

Case Law • Engle vs. Vitale--The use of the prayer is wholly inconsistent with the Establishment Clause principles. It is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government. • Wallace v. Jaffree (1985)—moment of silence and

Case Law Cont…. Lee Interview • Lee vs. Weisman--Religious exercises may not be conducted at a graduation ceremony, a ceremony of singular importance to every student, in circumstances where, young graduates are compelled to attend and conform. A school may not persuade or compel a student to participate in a religious exercise.

Lee vs. Weisman • Important Facts!!!! • State officials direct the performance—pamphlet directed form of prayer • Attendance in a fair and real sense is mandatory. • Government involvement is pervasive—state-sponsored and state-directed religious exercise—The government may not coerce anyone to support or participate in religion or its exercise. • The question is not the good faith of the schools in making the prayer acceptable to most persons • UNTENABLE POSITION: • Either attends one of life’s “special moments”, graduation, or not. • Either sit while all around you are standing and praying or not

Lee vs. Weisman Dissent • Governmental ceremonies and proclamations, Declaration of Independence, George Washington and prayer at inaugural, • Coercion—students were not asked to bow heads, put hands together, pay attention, utter Amen, etc. • Stood for Pledge? • No direction of performance—did not draft, edit, screen or censor prayer • Expanded the notion of Coercion with the backing of a penalty (go to church every Sunday or risk being thrown in prison) to Coercion by showing simple respect.

Case Law cont…. • Sante Fe vs. Doe--Allowing a prayer that is delivered in the present manner, carries with it the imprint of the State and in a very real sense, puts students in an “untenable” position. Such an activity violates the Establishment Clause. • Everson vs. Township--New Jersey may spend tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools.

The Ohio program is neutral in all respects toward religion. • It is part of a general, Nonreligious program • It gives assistance directly to a broad class of individuals defined without reference to religion • All schools may participate • Benefits are available to families on neutral terms • No financial incentive that skew the program toward religious schools. • State aid arrives at the private school ONLY AFTER NUMEROUS INDEPENDENT DECISIONS OF PRIVATE INDIVIDUALS. • Parents were the “circuit breaker” for an Establishment Clause violation

Case Law cont…. • Zelman vs. Simmons-Harris--Zelman Video A program that is neutral towards religion provides benefits to a wide spectrum of individuals defined only by financial need and their residence, and one that allows for true private choice among options, public, private, secular or non-secular does not violate the Establishment clause because it is a program of true private choice.

Examples State cannot do… • 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 • Neither can force nor influence a person to go or stay away from church. • Neither can force one to profess a belief or disbelief in any religion. • No person can be punished for entertaining or professing religious beliefs or disbeliefs • No person can be punished for church attendance or non-attendance. • No tax in any amount, large or small, can be levied to support any religious activities.

What if… • Suzie Smith was named valedictorian of your high school graduating class by virtue of her GPA. She is a devout Muslim who has written her valedictorian address about the importance of Muhammad in her life and why she thinks students who abuse drugs and alcohol or belong to gangs need to discover Muhammad in their personal lives. She wants to finish by inviting her fellow graduates to come with her to her mosque before they leave for college or work. The principal is nervous about letting her give such a speech, but students in the past have always been allowed to speak about their topic of their choice, and their remarks are traditionally edited for length, clarity, and style only.

Stone vs. Graham10 commandments • 1. am the Lord thy God, ... Thou shalt have no other gods before me. • 2. Thou shalt not make unto thee any graven images. • 3. Thou shalt not take the name of the Lord thy God in vain. • 4. Remember the sabbath day, to keep it holy. • 5. Honor thy father and thy mother: that thy days may be long. • 6. Thou shalt not kill. • 7. Thou shalt not commit adultery. • 8. Thou shalt not steal. • 9. Thou shalt not bear false witness against thy neighbor. • 10. Thou shalt not covet thy neighbor's house.

Case Law cont…Scopes Documentary Religion in school, Vouchers Stone vs. Graham--The mere posting of the 10 Commandment provides the “official support of the State…government” that the Establishment Clause prohibits. It is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment.

Lynch v. Donnelly(1984) and Allegheny County v. ACLU • What is the difference? Endorsement • Lynch--Pawtucket, RI erected, in the heart of the city’s shopping district, a holiday display that included, Santa Claus, reindeer, candy-stripped poles, a Christmas tree and a nativity scene. • Allegheny County--the city of Allegheny put up two holiday displays. One was a nativity scene, with an angel and a banner proclaiming “Gloria in ExcelsisDeo” placed on the grand staircase of the County Courthouse. The other was a Hanukkah menorah placed next to a Christmas tree and a sign saluting liberty outside the City-County Building.

Answer. • Lynch-- “ceremonial deism, and constitutional just like our money. Justice O’Connor used her, “endorsement test” --- Religious message was sufficiently “diluted” with nonreligious messages. Not an Endorsement • Allegheny County--However, the second display was struck down because it was centrally located inside the county courthouse in such a way that its religious message was not diluted by secular holiday messages. Endorsement “send a message to non-adherents that they are outsiders and not full members of the political community, and an accompanying message to adherents that they are insiders.)

Newdow—June 14th, 1954 • FROM THIS DAY FORWARD, the millions of our school children will daily proclaim in every city and town, every village and rural school house, the dedication of our nation and our people to the Almighty. To anyone who truly loves America, nothing could be more inspiring than to contemplate this rededication of our youth, on each school morning, to our country's true meaning. • Especially is this meaningful as we regard today's world. Over the globe, mankind has been cruelly torn by violence and brutality and, by the millions, deadened in mind and soul by a materialistic philosophy of life. Man everywhere is appalled by the prospect of atomic war. In this somber setting, this law and its effects today have profound meaning. In this way we are reaffirming the transcendence of religious faith in America's heritage and future; in this way we shall constantly strengthen those spiritual weapons which forever will be our country's most powerful resource, in peace or in war. • Dwight D. Eisenhower

Case Law Cont… • Newdow vs. US Congress— • Endorsement Test— • Coercion Test-- • Lemon Test--

Facts of Yoder—Balancing test • Balancing test—Rights of the State to make kids go to school until 16 against the rights of the Amish to exercise their faith and pull kids out in 8th grade • State • 1. Some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system: and • 2. Education prepares individuals to be self-reliant and self-sufficient participants in society.

Facts Continued • Amish • Higher education exposes children to the worldly influences that are in conflict with beliefs. • High School emphasizes intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, social life with other students • Amish believe in life of goodness, wisdom rather than technical knowledge, community welfare, rather than competition, and separation from rather than integration with contemporary worldly society. • Amish learn by doing rather than in classroom • At this time, the Amish must grow in faith and relationship to Amish community. • evidence also showed that the Amish have an excellent record as law-abiding and generally self-sufficient members of society. (possible exceptions)

Free Exercise Clause • Wisconsin vs. Yoder--Aided by history of 1) three centuries as an identifiable religious sect 2) a long history as a successful and self-sufficient segment of American society; 3) the sincerity of their religious beliefs; 4) the fact that their life and religion are inextricably linked; and 5) the hazards presented to the survival of Old Order Amish communities if we were to uphold the State’s regulation.

Evolution vs. Creationism • State v. John Scopes • Epperson v. Arkansas (1968)—Illegal to teach “the theory or doctrine that mankind ascended or descended from a lower order of animals.” (Answer—it is clear that fundamentalist, religious view was the law’s reason for existence.) (Scopes issue) Unconstitutional • Edward v. Aguillard(1987) ---If the Theory of Evolution is taught, a teacher MUST also teach the Theory of Creationism. (Answer—the primary purpose of the law was to endorse a particular religious doctrine.” Unconstitutional • “Kansas Debates Evolution in 1999” (Originally cut all evolution study out of curriculum. Later put it back in. • Intelligent Design--"certain features of the universe and of living things are best explained by an intelligent cause, not an undirected process such as natural selection

Freedom of Religion