ESTABLISHMENT OF RELIGION

1. ESTABLISHMENT OF RELIGION 4/02/09

2. The Lemon Test See Box 4-4 on page 156 in E&W • In order for the challenged act to avoid being in violation of the establishment clause: • It must have a secular purpose, • It’s primary effect must neither advance nor inhibit religion, and • It must not involve excessive governmental entanglements.

3. Example of “excessive entanglements” Lemon v. Kurtzman(1971) • But failed the 3rd criteria because they created excessive government entanglements. • Gov. had obligation to monitor teachers and book selection to be sure they were not involved in “inculcating religious doctrine.” • Gov. couldn’t do this monitoring without creating excessive entanglements.

4. Standards/Tests Used in Establishment Cases Lemon test is still the primary test/standard applied, but in recent years different justices have developed and applied their own variations of the Lemon test. • See Table 4-3 on p. 159 for discussion of these variations. • Nonpreferentialism • Advocated by Rehnquist in Wallace v. Jaffree • Endorsement • Advocated by O’Connor in Wallace and Lynch • Coercion • Advocated by Kennedy in Allegheney v. ACLU • Social Conflict • Advocated by Breyer in Zelman v. Simmons-Harris

5. Prayer and Other Religious Activities in Public Schools • KEY CASES:Engel v. Vitale (1962)Abbington v. Schempp (1963)Stone v. Graham (1980)Wallace v. Jaffree (1985)Lee v. Weisman (1992)Santa Fe School Dist. v. Doe (2000) Newdow v. U.S. Congress (App.Ct. 2003)

6. Engel v. Vitale (1962) FACTS: • Non-denominational Prayer • Approved by state board of education • read over PA system at beginning of each day. • What is a “non-denominational” prayer? • Was the prayer in question really non-denominational?

7. Engel v. Vitale (1962) • “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.” • Is this prayer really non-denominational?

8. Engel v. Vitale (1962) Non-Monotheistic Religions Furthermore, people of different religions pray to different Gods. • Even if you remove all references to Jesus Christ you are faced with the problem that different religions have different names for their god. • Even if a prayer only refers to the general term “God,” it is showing a preference for mono-thesitic religions over those that recognize more than one god. • Christianity, Judaism, and Islam are mono-thsistic religions. • Hinduism and Budism are multi-thesitic religions.

9. Secular Purpose ofNon-denominational Prayer • Dictionary defines prayer as an adoration, confession, supplication or thanksgiving directed at a God. • Therefore a prayer is by definition offensive to non-believers.

10. Engel v. Vitale (1962) VOLUNTARY PARTICIPATION • While the practice of excusing individual students from participating, it still sends a message and “spots out” non-participants as being different.

11. Engel v. Vitale (1962) HOLDING: It is a violation of the establishment clause of the 1st amendment as it is applied to the states through the 14th, for a state to require a non-denominational prayer to be said aloud in public schools (even if individual students are not required to recite the prayer or even remain in the room).

12. Abbington v. Schempp (1963) FACTS: Reading passages from Bible as part of opening ceremonies at school. HOLDING: It is a violation of the establishment clause of the 1st amendment as it is applied to the states through the 14th, for a state to require a bible reading as part of the opening activities in public schools.

13. Abbington v. Schempp (1963) REASONING: • Reading was being done as part of religious exercise designed to promote religion. • Dicta indicates it would be alright to read parts of Bible in Literature or History classes.

14. Wallace v. Jaffree (1985) FACTS: • Alabama statute required a moment of silence for meditation or voluntary prayer at the beginning of each school day, and authorized teachers to lead willing students in prayer to "Almighty God." • The part about authorizing teachers was struck down in the lower courts and not reviewed by S.Ct. in this case.

15. Wallace v. Jaffree (1985) PRECEDENT: It is a violation of the 1st amendment establishment of religion clause (as applied to the state by the 14th amendment due process clause) for a state to establish a moment of silence in public schools for the purpose of encouraging students to pray.

16. Wallace v. Jaffree (1985) REASONING: APPLICATION OF LEMON TEST: • Opinion of the Court applies Lemon test. Legislative record shows that it was religiously motivated, and therefore fails to pass the secular purpose part of the Lemon test. • Motivation behind law is to encourage prayer.

17. Wallace v. Jaffree (1985) DEVELOPMENT OF ENDORSEMENT TEST: • In concurring opinion, JUSTICE O’CONNOR agrees with result but applies alternative “endorsement” test that she first mentioned in Lynch v. Donnelly (1984). [See Table 4-3 on p. 159 in text]

18. Wallace v. Jaffree (1985) Development of “Non-Preferentialism Test” • In Dissenting Opinion by CHIEF JUSTICE REHNQUIST • He uses historical analysis to argue that it was the “original intent” of the founding fathers to support public prayer. • He also argues that alternative “nonpreferentialism” standard should be substituted for the old Lemon test.

19. Lee v. Weisman (1992) • FACTS: Challenge to practice of having local clergy give invocation and benedictions at high school graduation ceremonies. • PRECEDENT: It is a violation of the 1st amendment establishment of religion clause (as applied to the state by the 14th amendment due process clause) for a public school principal to invite clergy to offer prayers at graduation ceremonies. [Even when they are non-denominational prayers]

20. Lee v. Weisman (1992) APPROACHES USED • Justices decided not to overturn Lemon, but only Souter seems to explicitly apply it. • Five justices, Kennedy, Rehnquist, Scalia, Thomas, and White, all appear to use coercion standard rather then Lemon standard. • Stevens, Blackmun and O’Connor write about using an endorsement standard

21. Lee v. Weisman (1992) DIFFERING APPLICATIONS OF THE SAME TEST • Even though JusticesKennedy, Rehnquist, Scalia, Thomas, and White all used coercion standard, they came to different conclusions. • Justice Kennedy concluded that the graduation prayers were coercive. • Rehnquist, Scalia, Thomas, and White concluded that they were not coercive.

22. Santa Fe Independent School Dist. v. Doe (2000) FACTS: • Mormon and Catholic students and parents challenged school district policy of having a student chaplain give "invocation" over the public address system before each home varsity football game. • District Court later entered order approving system whereby students first voted to have prayer and then voted to select student to give a "nonsectarian, non-proselytizing" prayer.

23. Santa Fe Independent School Dist. v. Doe (2000) HOLDING: (Vote of 6-3) It is a violation of the establishment clause of the 1st amendment, as applied to the state through the 14th amendment due process clause, for public schools to have student elections to select students to give prayers over public address systems as a part of the opening ceremonies at athletic events.

24. Santa Fe Independent School Dist. v. Doe (2000) REASONING: • The prayer is clearly state sponsored in that the school conducts elections to select the student to give the prayer, places regulations on the content of the prayer, uses public address system, and incorporates prayer into official pre-game activities. • Through this process, school is clearly encouraging prayer.

25. Santa Fe Independent School Dist. v. Doe (2000) REASONING (Cont.): • By holding election, school is "politicizing" religion and choosing a system in which religious views of the majority will effectively silence those of minority. • Doesn’t matter that it is "extra-curricular activity" because: • Attendance of cheerleaders, band, players is required. • Social pressures to attend. Its important part of the high school experience.

26. Santa Fe Independent School Dist. v. Doe (2000) DISSENT (Scalia and Thomas): • Decision is not faithful to the meaning of the establishment clause. • Court’s opinion "bristles with hostility to all things religious in public life.“

27. Teaching Evolution • What is evolution? • Why are certain religious groups opposed to teaching evolution in the public schools?