Religious Freedom

1
Religious Freedom

• The Establishment Clause

2
Establishment Clause Jurisprudence

• The Court's decisions here tend to be the most
  controversial and the most and inconsistent in
  terms of legal reasoning.
• A few important cases in the 1940's but most
  establishment clause cases came to the court
  starting in the 1960's to date.

3
Underlying judicial reasoning

• 1. to avoid denominational hostilities among a
  heterogeneous population.
• 2. a concern with religion staying private and
  personal.
• 3. respect for feelings of the few who may be
  ostracized because of unconventional religious
  beliefs.

4
Wall of separation between Church and State

• What does this phrase mean? That is
• How did Jefferson mean it in the famous 1802
  letter to the Danbury Baptists?
• How did other framers understand the
  establishment clause?

5
Wall of separation between Church and State

• What does this phrase mean?
• Separatist a solid wall of separation between
  religion and government (church state).
• Accommodationist (2 versions)
• Nondiscriminatory support or aid of all religions
  constitutionally permissible.
• Establishment Clause only bars the adoption of an
  official national religion.

6
Original intent of framers

• Many studies have shown that the framers
  disagreed on the meaning of establishment, but
  the majority likely agreed with an
  accommodationist position, as the text notes (p.
  145).
• Yet those who were most influential in drafting
  the 1st Amendment Jefferson Madison were
  separatists.
• Therefore, it is difficult to use the intent of
  the framers as a guideline.

7
Two perspectives on establishment framers intent

• Non-preferentialist consistent with the
  accommodationist position
• Preferentialist consistent with the separatist
  position.

8
Non-preferentialists

• Non-preferentialists argue that the framers did
  not intend to end government support of religion,
  only support that gives preference to one
  denomination over another.
• They argue that many court rulings instead of
  being neutral to religion, have been hostile,
  with government favoring non-religion over
  religion. To be neutral, government should
  support religious activities the same as it
  supports nonreligious.

9
Non-preferentialists

• In addition, they believe the framers intended
  for the 1st Amendment only to bar the
  establishment of a national church. Federal
  action that benefits several religions is
  permissible.
• They argue that the framers saw religion as
  important to government, because it instills
  important civic values like honesty. You can see
  this reasoning in the dissent of Justices Burger
  and Rehnquist in Wallace v. Jaffree.

10
Preferentialists

• Preferentialists argue that at the time of the
  framing of the 1st Amendment, state governments
  already were rejecting formal church
  establishment, but most still provided aid to
  churches on a non-preferential basis. This was
  the status quo situation that the framers
  intended to restrict. Otherwise, there would have
  been no need to add this provision in the Bill of
  Rights.
• They believe that government should be neutral
  between religion and non-religion.

11
Preferentialists

• Appears to have been Madisons view, both while
  he was in Virginia and later in the White House.
  Like Jefferson, he opposed setting up a national
  holiday to thank God (Thanksgiving) and the
  appointment of chaplains for Congress and the
  military, on the grounds that they violated the
  establishment clause.

12
Everson v. Board of Education (1947)

• Facts of the case

13
Everson v. Board of Education (1947)

• Facts of the case
• A New Jersey law permitted local school boards to
  cover transportation costs for children attending
  either public or private nonprofit schools. One
  town reimbursed parents for transportation costs
  to its four Catholic schools. Taxpayer Arch
  Everson filed a suit against the board of
  education, challenging this as a violation of the
  establishment clause.

14
Everson v. Board of Education (1947)

• Court ruling

15
Everson v. Board of Education (1947)

• Court ruling 5/4 not a violation.
• Court reasoning authored by Justice Black.

16
Everson v. Board of Education (1947)

• Court reasoning The establishment clause means
  government cant set up a church, pass laws to
  aid one religion or all religions, give
  preference to a religion, levy a tax, compel
  church attendance, etc. In the words of
  Jefferson, the clause was intended to erect a
  wall of separation between church and State....
  that must be kept high and impregnable. In this
  case, he ruled, the wall had not been breached.
  The program was general and benefited children.
  Black drew a parallel with police and firemen
  providing services.

17
Everson v. Board of Education (1947)

• Dissents?

18
Everson v. Board of Education (1947)

• Dissent (Jackson) Majority ignores how key
  education is to the Catholic faith. This aid is
  the same as if given directly to the Church.
  Program is not neutral because it covers only
  public or private Catholic schools (not private
  secular or other religion). The analogy about
  firemen and police is flawed. The true analogy
  is if the police shall protect pupils on the way
  to or from public schools and Catholic schools
  but not while going to or coming from other
  schools. The tax benefit essentially sets up a
  religious test.

19
Everson v. Board of Education (1947)

• Dissent (Rutledge) Any law respecting an
  establishment of religion is forbidden. The 1st
  amendment requires a complete and permanent
  separation of the spheres of religious activity
  and civil authority. Free exercise
  establishment clauses correlate, and any
  government tax support interferes with individual
  free exercise. These funds raised by taxation
  used to encourage religious instruction.

20
Everson ruling outcomes

• Applied the Establishment Clause to the states
  through the 14th amendment.
• Stressed certain core ideas wall of separation
  in general, but Court would consider if purpose
  of the aid is secular beneficiaries are
  children, not religious institutions state is
  neutral in relations between believers and
  non-believers.
• Illustrated how controversial this area would
  become (text, pp. 151-152).

21
Everson test different rulings

• Court sent mixed signals after Everson.
• Table 4-1 In the seven establishment clause
  cases from 1947 to 1968, half reflected an
  accommodationist view and half a separatist view.
• Emerging test articulated in Abington Township v.
  Schempp (1963)

22
Emerging test in Abington Township

• Two questions
• What is the purpose of the law?
• What is the primary effect of the law?
• To be constitutional, it must have a secular
  legislative purpose and neither advance nor
  inhibit religion.

23
Emerging test after Walz v. Tax Commission of NYC
(1970)

• The Burger Courts first establishment case
  upheld a state property tax exemption for
  religious institutions against a taxpayer
  challenge. Burger introduced a third question
  was there an excessive government entanglement
  with religion? In this case, the entanglement
  greater if no tax exemption. The exemption
  reinforced the separation between government and
  religion.

24
Lemon v. Kurtzman/Earley v. DiCenso (1971)

• Facts of the case

25
Lemon v. Kurtzman/Earley v. DiCenso (1971)

• Facts of the case Pennsylvania state law
  reimbursed nonpublic schools for teaching
  salaries, books and secular instructional
  materials for courses in math, language and
  physical education. Lawsuit filed by Alton
  Lemon, a taxpayer and father of a child in public
  school.
• Rhode Island supplemented the salary of nonpublic
  school teachers who agreed not to teach religious
  subjects. It turned out that all worked at
  Catholic schools. Program challenged by the
  American Jewish Congress.

26
Lemon v. Kurtzman/Earley v. DiCenso (1971)

• Court ruling 8-0 8-1 to strike down the laws.
• Court reasoning

27
Lemon v. Kurtzman/Earley v. DiCenso (1971)

• Court reasoning Burger brought together the
  three criteria in earlier cases to create the
  Lemon test
• 1. the statute must have a secular legislative
  purpose.
• 2. its primary effect must be one that neither
  advances nor inhibits religion.
• 3. it must not foster an excessive government
  entanglement with religion.
• Where did these statutes fail this test?

28
Lemon v. Kurtzman/Earley v. DiCenso (1971)

• First prong - secular legislative intent fine.
• Second prong - primary effect unclear
• Third prong excessive government entanglement
  clearly fails. To monitor compliance, government
  has to be continuously involved in examining
  church records surveilling teachers. Further,
  in Pennsylvania, the funds go directly to the
  schools, not the teachers or parents.
• A broader entanglement also arises, because of
  the divisive political potential of these state
  programs. Could result in political campaigns
  based on people's religious faith.

29
Lemon v. Kurtzman/Earley v. DiCenso (1971)

• Concurrence (Douglas) Tax payer funds cannot be
  used even for the secular portion of a parochial
  school, because a school is a single organism
  operating under one budget. Public subsidies of
  secular activities frees up funds for those
  schools to use for religious instruction.

30
Lemon v. Kurtzman/Earley v. DiCenso (1971)

• Dissent in DiCenso (White) the plaintiffs
  provided no evidence that non-secular lessons
  were taught in secular classrooms in religious
  schools. He argued that the 1st amendment
  permits state funds to supplement salaries of
  teachers of secular subjects.

31
Cases in the 1980s early 1990s

• Aguilar v. Felton (1985)
• Zobrest v. Catalina Foothills School District
  (1993)
• Board of Education of Kiryas Joel Village v.
  Grumet (1994)