Transcript Religious Establishment King George III Head of the Church of England Ruler of the American Colonies The Bill of Rights Institute Chicago, IL, April 24,

Religious Establishment
King George III
Head of the Church of England
Ruler of the American Colonies
The Bill of Rights Institute
Chicago, IL, April 24, 2006
Artemus Ward
Department of Political Science
Northern Illinois University
First Amendment
• “Congress shall make no
law respecting an
establishment of religion”
• What does this mean?
The “Wall of Separation”
• In 1802, President
Jefferson wrote a letter
to a friend explaining
that the First
Amendment established
“a wall of separation
between church and
state.”
• Does this help us
interpret the
Establishment Clause?
Competing Views of the
Establishment Clause
Separationist—strict division
between government and religion
Accommodationist—allows
intermingling between
government and religion.
Everson v. Board of Education (1947)
• The Court upheld a state’s
reimbursement to parents of
parochial school children for the
cost of busing their kids to
religious schools.
• The Court reasoned that the
taxpayer funds were permissible
because they went to the
children/parents and not the
religious schools. But . . .
• The Court also said, “In the words
of Jefferson, the clause against
establishment of religion by law
was intended to erect ‘a wall of
separation between Church and
State.’”
Everson v. Board of Education (1947)
“The ‘establishment of religion’ clause of the First
Amendment means at least this: 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 to
or to remain away from church against his will or
force him to profess a belief or disbelief in any
religion.
No person can be punished for entertaining or
professing religious beliefs or disbeliefs, for
church attendance or nonattendance.
No tax in any amount, large or small, can be
levied to support any religious activities or
institutions, whatever they may be called, or
whatever form they may adopt to teach or
practice religion.
Neither a state nor the Federal Government can,
openly or secretly, participate in the affairs of any
religious organizations or groups and vice versa.”
Engel v. Vitale (1962)
New York composed and required a
prayer to begin the school day: “Almighty
God, we acknowledge our dependence
upon Thee, and we beg Thy blessings
upon us, our parents, our teachers, and
our Country.”
Justice Black held: “Petitioners argue
[that] the State's use of the Regents'
prayer in its public school system
breaches the constitutional wall of
separation between Church and State. We
agree since we think that the
constitutional prohibition against laws
respecting an establishment of religion
must at least mean that in this country it
is no part of the business of government
to compose official prayers for any group
Abington School District v. Schempp (1963)
Pennsylvania law declared that at least 10 verses from the
Bible shall be read without comment at the beginning of
each public school on each school day. At Abington High,
the verses were read over the loud speaker and were then
followed by a recitation of the Lord's prayer, during which
students stood and repeated the prayer in unison.
Students who did not want to participate could leave the
room.
The Court asked what the purpose and primary effect of
the policy were and found it unconstitutional. The justices
reasoned that the state passed the law to promote religion
and the effect was to coerce students to participate in
religion.
A majority of Americans have never approved of this
decision. Today only about 1/3 agree.
Lemon v. Kurtzman (1971)
The Court invalidated a state law
reimbursing religious schools for nonreligious textbooks and salaries for nonreligious teachers.
Chief Justice Burger reasoned that unlike
textbooks, it was easy for teachers to inject
religion into their teaching. Though the aid
only went to teachers of "secular" subjects,
they were employed by and subject to
supervision and disciplinary action by the
church. Because most lay teachers were of
the Catholic faith, there was potential for
public funds to be used for religious
instruction. Because of this potential danger,
the state would have to continually monitor
the school to make sure the money was
being distributed correctly. This would be
excessive involvement.
Lemon v. Kurtzman (1971)
1)
2)
3)

The Court articulated what became known as
the “Lemon Test.”
The policy must pass all 3 parts to be valid:
Does program at issue have a secular
legislative PURPOSE?
Is the primary EFFECT to inhibit or advance
religion?
Does the legislation foster an EXECESSIVE
GOVERNMENT ENTAGLEMENT with religion?
This test became divisive in subsequent cases
and though it has been slightly modified, it is
essentially in tact as good law today.
Lee v. Weisman (1992)
Is a state-approved, clergy-led
prayer at a public school
graduation constitutional?
Justice Kennedy initially voted
that it was, switched his vote,
and finally struck down the
policy for a 5-4 majority.
Instead of applying the Lemon
Test, Kennedy applied what
Justice Scalia mockingly called
the “psycho-coercion test”
Kennedy said that “subtle
coercive pressures exist and the
student had no real alternative
which would have allowed her to
avoid the fact or appearance of
participation.”
Zelman v. Simmons-Harris (2002)
For a 5-4 majority, Chief Justice
Rehnquist upheld a government
program providing tuition
vouchers for Cleveland
schoolchildren to attend private
(including religious) schools.
He applied the Lemon test and
reasoned that because the
vouchers went to parents and
they made a “private choice” the
program was constitutional.
“No reasonable observer would think a neutral program of private choice,
where state aid reaches religious schools solely as a result of the
numerous independent decisions of private individuals, carries with it the
imprimatur of government endorsement.”
Zelman v. Simmons-Harris (2002)
The dissenters emphasized two key points:
1) Religious use of public funds will increase
the risk of religious strife and religiouslybased social conflict—the very thing the
Establishment Clause was put in place to
avoid
2) Public funds allow religious schools to
divert money to religious instruction that
would have been used for secular
purposes: scholarships, busing, textbooks,
etc.
Elk Grove v. Newdow (2004)
The Pledge of Allegiance
has included the phrase
“under God” since 1954.
California requires public
elementary school teachers
to lead students in the
Pledge.
Newdow, an atheist,
challenged the Pledge that
his daughter was required
to recite.
Elk Grove v. Newdow (2004)
The Court ducked the issue by
holding that Newdow, as a
divorced father who did not have
legal custody of his daughter, did
not have standing to bring the
suit. In his opinion for the Court,
liberal Justice John Paul Stevens
added: “[The Pledge’s] recitation
is a patriotic exercise designed to
foster national unity and pride in
those principles.”
Still, Rehnquist, O’Connor, and
Thomas went to great lengths in
separate opinions to explain why
the Pledge was constitutional.
The Ten Commandment Cases (2005)
In two cases, the Court held 5-4 that:
1) Two large, framed copies of the Ten
Commandments could not be displayed in a
courthouse building because they were
placed there relatively recently and were
displayed by themselves . . .
2) But, a six-foot monument displaying the Ten
Commandments could be placed on public
grounds because it was longstanding and
was placed with other historical
monuments.
Conclusion
In general, the liberals are separationist and the
conservatives are accommodationist.
While the Lemon test is still good law, there are other
tests for specific areas of Establishment jurisprudence
such as the “coercion” test used in Weisman.
What will the recent turnover on the Court mean for the
future of the Establishment Clause?
Rehnquist was a solid accommodationist vote and it is
expected that Chief Justice Roberts will vote the same
way.
O’Connor was usually accommodationist but in a few
cases voted with the liberals. It is likely that Justice Alito
will be consistently accommodationist.