Chapter 19: Civil Liberties Freedom of Religion Honors Classes, Dec. 5, 2013

1. Chapter 19: Civil Liberties Freedom of ReligionHonors Classes, Dec. 5, 2013

2. The Owner’s Manual The First Amendment says, about religion, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” So we have two parts of the religious freedom: • freedom from the government establishing a state church; and • freedom to worship however we choose (to a point).

3. Does the First Amendment Apply to States? • Yup. The USSC has incorporated the protections of the First Amendment (as well as most of the other parts of the Bill of Rights). • USSC uses the 14th Amendment’s Due Process clause • “No State shall … deprive any person of life, liberty, or property, without due process of law….” • States can’t deprive citizens of the First Amendment rights without due process. • In practice, no amount of process will be “due” to justify the States taking away rights that are protected by the Bill of Rights.

4. Freedom of establishment • Does the Constitution require a “wall of separation between church and state”? Not exactly. Those were Thomas Jefferson’s words. • Recall that the colonists were burned by the establishment of the Anglican Church. • They wanted protection that the U.S. would not follow a similar path. • The First Amendment says that Congress cannot establish a national religion, but that’s not quite the same thing as TJ’s “wall of separation.”

5. Establishment (cont.) • The issue has arisen in several contexts, but primarily in education and public displays. • Education: Early case: Pierce v. Society of Sisters (1925). • Oregon tried to force all kids between 8 – 16 years of age to go to public schools. Wanted to get rid of parochial schools to minimize influence of immigrants and “foreign values.” • The nuns sued. • Held: State can’t force kids to go to public schools. Interfered with parents’ right to direct the upbringing of their kids. • Moral of the story: Don’t mess with a nun.

6. Establishment -- prayer • Basically forbidden in public schools if gov’t is behind it. • Engel v. Vitale(1962) • State drafted a non-denominational prayer, referring only to “Almighty God.” • Struck down. The non-denominational nature didn’t help; State (via the school) is still officially approving religion. • Abington v. Schempp (1963) • Ct struck down PA law requiring each school day to begin with a prayer and Bible reading. • Ability of a student to excuse him/herself didn’t matter.

7. Establishment – prayer (cont.) • Wallace v. Jaffree(1985) • The Mobile school prayer case. • Moment of silence held unconstitutional. • Bad facts. • In 1981, the Alabama legislature modified a 1978 statute that had allowed a moment of silence for the purpose of “meditation." • The 1981 amendment specified that the moment of silence was for the purpose of "meditation or prayer." • The sponsor of the legislation went on record as stating that the sole purpose of this change was to bring prayer back into schools. • Court concluded that the State did not have a secular purpose.

8. Establishment – prayer (cont.) • Santa Fe Ind. School District v. Doe(2000) • No student-led prayer at HS football game. • Court: This is public speech that is – • authorized by a government policy, • taking place on government property, • at government-sponsored school-related events. • Thus, it looked like to the Court like State was endorsing the speech. • Lee v. Weisman (1992) • No prayer at public school graduation.

9. Establishment – prayer (cont.) • Note that a student in public school can pray silently. • Note also that the Equal Access Act of 1984 requires any public high school that receives fed’l $$ to allow student religious groups to meet on same terms as other student groups. • It’s just that the school cannot encourage, sponsor, endorse, etc. prayer. • Does every public school abide by these limits? Highly unlikely.

10. Establishment – Teaching Evolution • Epperson v. Arkansas (1968) • Court struck down a law that forbade the teaching of evolution. • Edwards v. Aguillard(1987) • Court struck down LA statute that said a teacher must teach “creation science” whenever evolution is taught. • Kitzmiller v. Dover Area School District (2005) • Requirement that teachers teach “intelligent design” along with evolution also was struck down. • Note that the Bible can be taught in public schools as a work of literature/art or historical artifact.

11. Establishment – aid to parochial schools • Aid to parochial schools: • Lemon v. Kurtzman(1971). The “Lemon” 3-prong testis the standard: • The purpose of gov’t aid must be secular and not religious; • Its primary effect must neither advance nor inhibit religion; and • It must avoid “excessive entanglement” of gov’t and religion. • So: • $$ for buildings, books, lunches, transportation all okay; • $$ for teachers not. Too hard to determine what teachers teach (leading to “excessive entanglement”).

12. Establishment – aid (cont.) • How about vouchers? (Basically, a “voucher” is the government giving parents the cost of a public education and letting them use that $$ to pay for private school.) • Vouchers have been upheld. See Zelman v. Simmons-Harris (2002). • Ct: point is not to promote religion but to help poor kids. • As long as the program is entirely neutral with respect to religion and just gives people a choice, it’s okay.

13. Establishment – Public Displays • The other big area where establishment cases have been brought concerns the public display of religious symbols. • Upholding religious symbols: Town can include crèche in holiday display, along with Santa, sleigh, candy canes, etc. Lynch v. Donnelly (1984).

14. Establishment – Public Displays (cont.) • U.S. Congress starting each session with a prayer by the Congressional chaplain. Marsh v. Chamber (1983) The Chaplain opening another day in Congress: • Okay to require children to recite “Pledge of Allegiance” despite reference to “one nation, under God….” Newdow v. Rio Linda Union School District (2011) • Okay to have “In God We Trust” on currency. Id. • Unifying principle in all these cases: a recognition that religion is ingrained in our national heritage and is part of our culture.

15. Public displays (cont.) Striking down religious symbols: • Placing the 10 Commandments in a courthouse building. • Roy Moore (then and future Chief Justice of the Alabama Supreme Court) was ordered to remove a copy. • Defied the court order. • Was removed from the bench. • Recently won re-election as Chief Justice of the AL Sup. Ct.

16. Second protection: Free Exercise • We are free to exercise our religious beliefs however we want…up to a point. • The courts have upheld the following, all of which limit to some extent the free exercise of religion: • Mandatory vaccinations despite opposition on religious grounds • Prohibition against using poisonous snakes in religious rites • Blue laws • Drafting of people notwithstanding their religious beliefs • Child labor laws as they apply to kids selling religious literature • Parade permitting requirements • Ban on wearing yarmulkes while on active military duty • Clearing by US Forest Service of roads on lands used by Native Americans for religious purposes • Refusal of unemployment benefits to someone who was fired for using peyote during religious ritual • Requirement that Amish pay Social Security taxes

17. Free exercise (cont.) • But the courts have struck down several attempts to limit the free exercise of religion. The following were struck down: • Law requiring someone to get a license before soliciting money for a religious cause • Requirement that Amish children attend school beyond the 8th grade • Ban on ministers holding public office • Refusal of unemployment payments to someone who quit a job for religious reasons • Ban on animal sacrifices • Mandatory salute of the American flag (violated principle against idolatry)