Amendment I: Religious Freedom

1. Amendment I: Religious Freedom Amendment I • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,… (…or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”)

2. U.S. Supreme CourtWEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE, 319 U.S. 624 (1943) 319 U.S. 624 WEST VIRGINIA STATE BOARD OF EDUCATION et al. v. BARNETTE et al. No. 591. Argued March 11, 1943. Decided June 14, 1943.

3. WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE Facts of the Case • As part of instituting a required curriculum teaching American values, the state of West Virginia forced students and teachers to participate in saluting the flag. Failure to comply with this resulted in expulsion and the student was considered illegally absent until readmitted. A group of Jehovah's Witnesses refused to salute the flag because it represented a graven image that was not to be recognized. Outcome Vote 8-1 • The Court ruled that the school district violated the rights of students by forcing them to salute the American flag.

4. WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE Majority Opinion (Justice Jackson) • “The refusal of the students to say the pledge did not infringe on the rights of other students. The flag salute required students to declare a belief that was contrary to their faiths. The state did not claim that a clear and present danger would be created if the students remained passive during the pledge. The Court does not believe that allowing an individual's rights to be supported over government authority is a sign of a weak government. "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities." Finally, compulsion is not a legitimate means for creating national unity.” Significance • This decision directly reversed the Court's earlier decision in Gobitis. In this case, the Court saw the forced salute as compelling the students to assert a belief contrary to their faiths. The minimal harm created by lack of compliance is not great enough to dismiss the rights of the students to exercise their religions

5. U.S. Supreme CourtENGEL v. VITALE, 370 U.S. 421 (1962) 370 U.S. 421 ENGEL ET AL. v. VITALE ET AL. CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. No. 468. Argued April 3, 1962. Decided June 25, 1962.

6. ENGEL v. VITALE, 370 U.S. 421 (1962) Facts of the Case • The respondent Board of Education of Union Free School District No. 9, New Hyde Park, New York, acting in its official capacity under state law, directed the School District's principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." • “This daily procedure was adopted on the recommendation of the State Board of Regents, a governmental agency created by the State Constitution to which the New York Legislature has granted broad supervisory, executive, and legislative powers over the State's public school system. These state officials composed the prayer which they recommended and published as a part of their "Statement on Moral and Spiritual Training in the Schools," saying: "We believe that this Statement will be subscribed to by all men and women of good will, and we call upon all of them to aid in giving life to our program.“’

7. ENGEL v. VITALE, 370 U.S. 421 (1962) Outcome Vote 6-1 • “Neither the prayer's nondenominational character nor its voluntary application saves it from unconstitutionality. By providing the prayer, New York officially approved or establishes religion.” Majority Opinion (Justice Black) • “There can be no doubt that New York's state prayer program officially establishes the religious beliefs embodied in the Regents' prayer. The respondents' argument to the contrary, which is largely based upon the contention that the Regents' prayer is "non-denominational" and the fact that the program, as modified and approved by state courts, does not require all pupils to recite the prayer but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program's constitutional defects. Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment, both of which are operative against the States by virtue of the Fourteenth Amendment.”

8. ENGEL v. VITALE, 370 U.S. 421 (1962) Dissent (Justice Stewart) • “With all due respect, I feel the court has misapplied a great constitutional principle. I cannot see how an ‘official religion’ is established by wanting those who want to say a prayer say it.” More Justice Black • “It is true that New York's establishment of its Regents' prayer as an officially approved religious doctrine of that State does not amount to a total establishment of one particular religious sect to the exclusion of all others - that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago. To those who may subscribe to the view that because the Regents' official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment:” • "[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? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?"

9. U.S. Supreme CourtLEMON v. KURTZMAN, 403 U.S. 602 (1971)403 U.S. 602 LEMON ET AL. v. KURTZMAN, SUPERINTENDENT OF PUBLIC INSTRUCTION No. 89. Argued March 3, 1971 Decided June 28, 1971

10. LEMON v. KURTZMAN, 1971 Facts of the Case • These three cases from Pennsylvania and Rhode Island involved public assistance to private schools, some of which were religious. Pennsylvania's law included paying the salaries of teachers in parochial schools, assisting the purchasing of textbooks, and other teaching supplies. In Rhode Island, the State paid 15% of the salaries of private school teachers. A federal court upheld the Pennsylvania law while a District Court ruled that the Rhode Island law fostered 'excessive entanglement'. Decision Vote 8-0 • The Court unanimously determined that the assistance was unconstitutional.

11. LEMON v. KURTZMAN, 1971 Majority Opinion (Justice Burger) • “There are three criteria that should be used to assess legislation: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances or inhibits religion; finally, the statute must not foster and excessive government Entanglement with religion." The two statutes in question violate the third of these criteria. The teachers whose salaries are being partially paid by the State are religious agents who work under the control of religious officials. There is an inherent conflict in this situation of which the state should remain clear. To ensure that teachers play a non-ideological role would require the state to become entangled with the church. Allowing this relationship could lead to political problems in areas in which a large number of students attend religious schools.” Significance • Instituted the Lemon test for analyzing statutes relating to church-state interaction.

12. Lemon TestLEMON v. KURTZMAN, 1971 1. The Activity must have a SECULAR PURPOSE 2. The primary effect must neither advance nor inhibit religion 3. The activity must not foster an excessive entanglement with religion

13. U.S. Supreme CourtWISCONSIN v. YODER, 406 U.S. 205 (1972) 406 U.S. 205 WISCONSIN v. YODER ET AL. CERTIORARI TO THE SUPREME COURT OF WISCONSIN No. 70-110. Argued December 8, 1971 Decided May 15, 1972

14. WISCONSIN v. YODER, (1972) Facts of the Case • Three Amish families sued the state of Wisconsin over its requirement that children be enrolled in school until the age of sixteen. The parents refused to comply by removing their children from school after they completed the eighth grade and were convicted of violating the law. The families claimed that their rights to freely exercising their religion were not being respected. The Wisconsin Supreme Court found in favor of the Amish parents. Decision Vote 6 and a half to one-half • The Supreme Court agreed by a vote of with the lower court that Wisconsin's law violated the families' rights to free exercise of religion. Justices Powell and Rehnquist did not participate in the vote.

15. WISCONSIN v. YODER, (1972) Majority Opinion (Chief Justice Burger) • “The Amish have a legitimate reason for removing their children from school prior to their attending high school. The qualities emphasized higher education (self-distinction, competitiveness, scientific accomplishment, etc.) are contrary to Amish values. Additionally, attendance in high school hinders the Amish community by depriving them of the labor of their children and limiting their ability to instill appropriate values in their adolescents. A state's interest in universal education must be balanced against the legitimate claims of special groups of people. The State cites two interests in compulsory education: to create a citizenry to participate in our political system and to prepare self-supportive people. The Court agrees with the Amish that an additional one or two years of education will not significantly affect either of these interests.” Significance • The Court's decision prevented states from asserting an absolute right to institute compulsive high school education. By preventing parents from removing their children from school, the State in intruding into the family and preventing them from instilling their faiths in their children.

16. U.S. Supreme CourtMARSH v. CHAMBERS, 463 U.S. 783 (1983) MARSH, NEBRASKA STATE TREASURER, ET AL. v. CHAMBERS CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 82-23. Argued April 20, 1983 Decided July 5, 1983

17. MARSH v. CHAMBERS, 463 U.S. 783 (1983) Facts of the Case • Chambers was a member of the Nebraska state legislature who objected to its chaplaincy policy. The clergyman who opened each session with a prayer was paid by public funds. The District Court objected to the use of public money to pay the preacher’s salary while the Appellate Court objected to the prayer being offered. Outcome Vote 6-3 • Supreme Court permitted the practice of beginning the legislative session with a prayer given by the publicly funded chaplain.

18. MARSH v. CHAMBERS, 463 U.S. 783 (1983) Majority Opinion: (Chief Justice Burger) • “The use of prayer is embedded in the nation’s history and tradition. That the practice of the Nebraska legislature is consistent with the framers’ intent is proven by their use of chaplains. Additionally, the Supreme Court and Congress have traditionally begun their sessions with prayers. Individual states do not have to abide by more stringent First Amendment limits than the federal government. The “Establishment Clause does not always bar a state from regulating conduct simply because it harmonizes with religious concerns.” Because of the principles upon which the nation has developed, religion has become part of the fabric of society. The offering of the prayer is a “tolerable acknowledgment of beliefs widely held among the people of this country.” The public payment of the chaplain is historically allowable because it was done by the Continental Congress years earlier. The pervasiveness of involving prayer with governmental activity without adverse effect has shown that there is no real threat from continuing the practice.” Significance • The Court placed a heavy reliance on looking to history and the intent of the framers in reaching this decision. Because the practice had been done for many years, it had become a communication of shared values rather than a decidedly religious practice.

19. Van Orden v. Perry (TX); McCreary County v. ACLU (KY) Decided June 27, 2005

20. Van Orden v. Perry (TX); McCreary County v. ACLU (KY) Van Orden v. Perry (TX) Facts of the Case (from the Court record) • “Among the 21 historical markers and 17 monuments surrounding the Texas State Capitol is a 6-foot-high monolith inscribed with the Ten Commandments. The legislative record illustrates that, after accepting the monument from the Fraternal Order of Eagles--a national social, civic, and patriotic organization--the State selected a site for it based on the recommendation of the state organization that maintains the capitol grounds.” • “Petitioner, an Austin resident who encounters the monument during his frequent visits to those grounds, brought suit seeking a declaration that the monument's placement violates the First Amendment's Establishment Clause and an injunction requiring its removal. Holding that the monument did not contravene the Clause, the District Court found that the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency, and that a reasonable observer, mindful of history, purpose, and context, would not conclude that this passive monument conveyed the message that the State endorsed religion. The Fifth Circuit affirmed.”

21. Van Orden v. Perry (TX); Decision • The Chief Justice, joined by Justice Scalia, Justice Kennedy, and Justice Thomas, concluded that “the Establishment Clause allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. Reconciling the strong role played by religion and religious traditions throughout our Nation's history with the principle that governmental intervention in religious matters can itself endanger religious freedom requires that the Court neither abdicate its responsibility to maintain a division between church and state nor evince a hostility to religion.” • “While the Court has sometimes pointed to Lemon v. Kurtzman, for the governing test, Lemon is not useful in dealing with the sort of passive monument that Texas has erected on its capitol grounds. Instead, the analysis should be driven by both the monument's nature and the Nation's history.” Majority Opinion • "The determinative factor here, however, is that 40 years passed in which the monument's presence, legally speaking, went unchallenged," Breyer writes. "Those 40 years suggest more strongly than can any set of formulaic tests that few individuals ... are likely to have understood the monument as amounting ... to a government effort to establish religion."

22. Van Orden v. Perry (TX); McCreary County v. ACLU (KY) McCreary County v. ACLU (KY) Facts of the Case (from the Court record) • “After petitioners, two Kentucky Counties, each posted large, readily visible copies of the Ten Commandments in their courthouses, respondents, the American Civil Liberties Union (ACLU) et al., sued to enjoin the displays on the ground that they violated the First Amendment's Establishment Clause. The Counties then adopted nearly identical resolutions calling for a more extensive exhibit meant to show that the Commandments are Kentucky's "precedent legal code." The resolutions noted several grounds for taking that position, including the state legislature's acknowledgment of Christ as the "Prince of Ethics." The displays around the Commandments were modified to include eight smaller, historical documents containing religious references as their sole common element, e.g., the Declaration of Independence's "endowed by their Creator" passage. Entering a preliminary injunction, the District Court followed the Lemon v. Kurtzman test to find, that the original display lacked any secular purpose because the Commandments are a distinctly religious document, and that the second version lacked such a purpose because the Counties narrowly tailored their selection of foundational documents to those specifically referring to Christianity.”

23. McCreary County v. ACLU (KY) Decision • “In this second display, unlike the first, the Commandments were not hung in isolation, merely leaving the Counties' purpose to emerge from the pervasively religious text of the Commandments themselves. Instead, the second version was required to include the statement of the government's purpose expressly set out in the county resolutions, and underscored it by juxtaposing the Commandments to other documents with highlighted references to God as their sole common element. The display's unstinting focus was on religious passages, showing that the Counties were posting the Commandments precisely because of their sectarian content. That demonstration of the government's objective was enhanced by serial religious references and the accompanying resolution's claim about the embodiment of ethics in Christ. Together, the display and resolution presented an indisputable, and undisputed, showing of an impermissible purpose.” Majority Opinion (Justice Souter) • "When the government acts with the ostensible and predominant purpose of advancing religion, it violates the central Establishment clause value of official religious neutrality," Nor do we have occasion here to hold that a sacred text can never be integrated constitutionally into a governmental display on the subject of law, or American history. We do not forget, and in this litigation have frequently been reminded, that our own courtroom frieze was deliberately designed in the exercise of governmental authority so as to include the figure of Moses holding tablets exhibiting a portion of the Hebrew text of the later, secularly phrased Commandments; in the company of 17 other lawgivers, most of them secular figures, there is no risk that Moses would strike an observer as evidence that the National Government was violating neutrality in religion.”

24. Sources • Hall, Kermit L., ed. The Oxford Companion to American Law. Oxford: Oxford University Press, 2002. • Hartman, Gary, R., Roy M. Mersky, and Cindy L. Tate. Landmark Supreme Court Cases. New York, Facts on File, Inc., 2004. • The Oyez Project, www.Oyez.org, 2007.