Transcript Jacqueline Brody Michael Elliott Thaddeus Goodchild

Jacqueline Brody
Michael Elliott
Thaddeus Goodchild
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Action brought by the families of students in Union Free
School District No. 9 in New Hyde Park, New York to enjoin
the Board of Education in that district from its practice of
directing principals to cause a 22-word, non-denominational
prayer to be said aloud by students in the presence of a
teacher at the beginning of each day.
State trial and appellate courts upheld the use of the prayer
as Constitutional.
The U.S. Supreme Court held that the daily recitation of the
prayer was a “religious activity” sanctioned and promulgated
by the State of NY through its Board of Education and, as
such, was “wholly inconsistent” with the Establishment Clause
of the First Amendment despite the fact that student’s were
not required to participate in the prayer.
http://www.youtube.com/watch?v=a_9Nu0tGTEM
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A religion is a system of human thought
which usually includes a set of narratives,
symbols, beliefs and practices that give
meaning to the practitioner's experiences of
life through reference to a higher power,
deity, or deities, or ultimate truth.
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A religious group whose beliefs or practices
could be considered strange or sinister
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Game
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How many people here practice the same
religion as their parents?
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Governmentally established religions
and religious persecution have gone
hand-in-hand
Indeed, colonists fled England for
America to avoid just this.
Common assertion amongst evangelical
conservatives: “We were founded as a
Christian nation.”
Most of the Founding Fathers were
Deists
Creator Framers referenced is not
meant to be read as the God of the
Bible; but instead is meant to
emphasize that no person or
government can create or take away
natural rights.
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“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof.”
Purposes
◦ protect the government from religion
◦ protect religion from the government.
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The Establishment Clause prohibits the
government from actively promoting or
establishing religion.
“It is generally agreed that the Establishment
Clause seeks to assure the separation of
church and state in a nation characterized by
religious pluralism.”
American faiths
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Only state establishment of a national
religion?
Any government reference to religion or God?
“Under God” in the Pledge of Allegiance?
Prayer in school?
Videos
 Obama
 Representative Forbes
 John McCain
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Until 1943, the First Amendment only applied
to the federal government, not the states.
Minersville School District v. Gobitas (1940)
◦ children of Jehova’s Witnesses could be expelled for
refusing to salute the American flag for religious
reasons
◦ Free Exercise Clause?
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West Virginia State Board of Education v.
Barnette (1943).
◦ overruled Minersville
◦ the First Amendment now applies to the states.
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Facts
◦ New Jersey law allowed reimbursements for public
transportation to parents who sent their children to
Catholic school.
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Holding
◦ The law did not violate the Establishment Clause
because the money did not go to parochial schools,
and the law was a “general program” that assisted
parents of all religions.
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Facts
◦ Voluntary religious classes were being taught in
public school classrooms.
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Holding
◦ The law violated the Establishment Clause because
the classes were being taught in tax-supported
property and the school was entangled with
religion.
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Facts
◦ Students were allowed to leave public school to
attend religious instruction off-campus
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Holding
◦ This “released time” program was constitutional.
The government need not be hostile to religion.
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Korean War and Cold War in the
1950’s
Communism as a “godless
political philosophy”
With the ideological war being
waged against communism came
increased religious fervor
"The fate of the world rests with
the clash between the atheism of
Moscow and the Christian
spirit throughout other parts of
the world.“ – Joseph McCarthy
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1952 – Congress
required that the
President proclaim and
National Day of Prayer
1954 - “…under
God…” incorporated
into the Pledge of
Allegiance
1954 – “In God We
Trust” adopted as
national motto
41% of schools had
Bible reading and 33%
had morning devotions
Action was brought by the families of students in Union Free School
District No. 9 in New Hyde Park, New York to enjoin the Board of
Education in that district from its practice of directing principals to cause
a 22-word, non-denominational prayer to be said aloud by students in
the presence of a teacher at the beginning of each day.
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NY Supreme Court (trial court) and NY Court
of Appeals upheld the use of the prayer as
Constitutional.
The United States Supreme Court granted
certiorari.
Court held that daily recitation of the prayer
was a “religious activity” sanctioned and
promulgated by the State of New York
through the Board of Education and was
“wholly inconsistent” with the Establishment
Clause
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At the recommendation
of the State Board of
Regents the Board of
Education in Union Free
School District No. 9
had adopted a daily
practice of each class
reciting a prayer at the
beginning of the school
day.
Part of the “Statement
on Moral and Spiritual
Training in the
Schools.”
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Students not required to
participate or be present as
prayer was recited.
The trial court’s required there
be a system to protect those
who objected to the prayer.
Neither teachers nor any
school authority were allowed
to comment on participation or
non-participation of any
student in the prayer.
The possible alternatives for
non-participating students
Prayer was nondenominational
and did not officially establish
any particular religious beliefs.
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Establishment Clause does not
depend upon any showing of direct
governmental compulsion.
Impermissible “indirect coercive
pressure” for religious minorities to
conform to the state-approved
religion.
In response to the second argument:
“It is proper to take alarm at the first
experiment with 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.” – James
Madison
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Response to charge that the Court was being
hostile towards religion and prayer:
Establishment Clause’s “first and most
immediate purpose” is rested on the belief
“that a union of government and religion
tends to destroy government and to degrade
religion.”
Religion is “too personal, too sacred, too holy
to permit its ‘unhallowed perversion’ by a
civil magistrate.”
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Recitation of the
Pledge not affected.
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Argues that holding should have
broader scope
Congress and Senate’s Chaplain;
SCOTUS Crier.
Quotes J. Ruteledge’s dissenting
opinion Everson v. Board of
Education
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Approves of prayer as
constitutional based on fact that it
was noncompulsory
Not allowing the practice deprives
children of the “opportunity of
sharing in the spiritual heritage of
our Nation.”
Court’s review of history of English
Book of Prayer and Church of
England is misplaced and
irrelevant to the facts of this case
Notes other government
invocations of religion
∙Public Reactions to Engel
∙Subsequent Cases
∙The Law Since Engel
∙Politics
∙Modern Day Controversies
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Opposition to Engel
◦ Polls showed that Engel was opposed by large majorities of
the American people. http://www.churchstatelaw.com/commentaries/engelvvitale.asp/
◦ Conservatives noted case as marking the beginning of
“America’s downfall” The Battle over School Prayer – How Engle v. Vitale Changed America, Bruce J.
Dierenfield, page 5 .
◦ Conservatives argue that many modern day problems –
such as “illegitimate births, the divorce rate, drug use,
racial unrest, public protests, and violence” – are all a result
of taking prayer out of school. Id.
◦ For the next four decades, public anger brought many calls
for a constitutional amendment to restore what Engel “took
away.” http://law.jrank.org/pages/6483/Engel-v-Vitale.html
◦ Many school boards continued to offer prayers at school
events, such as graduation ceremonies and athletic events.
Id.
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Proponents of Engel
◦ The ruling in Engel was a landmark victory for
church-state seperationists who marked it as the
beginning of a new era in First Amendment
doctrine.
◦ Engel was never overruled
http://law.jrank.org/pages/6483/Engel-v-Vitale.html
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Abington School District v. Schempp, 374 U.S. 203
(1963)
◦ Holding: struck down Bible readings in public schools.
Lee v. Weisman, 505 U.S. 577 (1992)
Holding: the Supreme Court held that a high school principal
acting in accordance with school board policy violated the
Establishment Clause by inviting a local clergyman to deliver a
nonsectarian prayer at graduation.
Santa Fe Independent School District v. Doe, 530 U.S.
290 (2000)
Holding: the Court ruled that the recitation of a prayer over a
school microphone by a student and supervised by a school
faculty member at a football game in accordance with school
policy violated the First Amendment.
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Chamberlin v. Bd. of Pub. Instruction, 377 U.S. 40
(1964)
◦ Holding: It is unconstitutional to read the bible and recite
the Lord's Prayer in public school.
Stone v. Graham, 449 U.S. 39 (1980)
Holding: disallowed a state law requiring posting of the Ten
Commandments in public school classrooms.
Treen v. Karen B., 455 U.S. 913 (1982)
Holding: a statute authorizing student volunteers to lead
classroom prayers in a public school violated the
Establishment Clause.
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Wallace v. Jaffree, 472 U.S. 38 (1985)
◦ Holding: The court held that the statute authorizing
a daily period of silence in public schools for
meditation or voluntary prayer was an endorsement
of religion lacking any clearly secular purpose, and
thus violated the Establishment Clause
◦ *Subsequent “minute of silence” laws have generally
survived legal challenges
◦ *As many as 18 states already permit moments of
silence under law
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Equal Access Act
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Board of Education v. Mergens, 496 US. 226 (1990)
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Good News Club v. Milford Cent. Sch., 533 U.S. 98
◦ To clarify the circumstances in which public high school
students may gather for religious purposes, including
prayers, Congress in 1984 enacted the Equal Access Act,
which provides student-led religious groups the same right
of access to school facilities for their meetings as is
enjoyed by other student-led non-religious groups.
◦ Holding: Upheld the Equal Access Act against constitutional
challenge .
(2001)
◦ Holding: the court held that a refusal to let a Christian Club
meet on public school property violated the Constitution.
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Between 1971 and 1990 the Supreme Court used a threepart test to determine whether state programs involving
religion were permitted under the Establishment Clause.
http://www.enotes.com/everyday-law-encyclopedia/school-prayer-pledge-allegiance.
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The standard, first announced in Lemon v. Kurtzman, 411
U.S. 192 (1971), is referred to as the Lemon test, and has
three conditions for policies regarding religion in school:
◦ 1.) that it has a secular purpose,
◦ 2.) that it has a primary effect that neither advances nor inhibits
religion, and
◦ 3.) that it does not excessively entangle government with religion.
In the 1990s, the Supreme Court refused to apply this test. Id.
By 2001, the test for compliance with the Establishment
Clause generally required that a school policy demonstrate
a secular purpose that neither advances nor inhibits
religion in its principal effect. Id.
Courts continued to carefully scrutinize such policies to
see that they did not endorse, show favoritism toward, or
promote religious ideas. Id.
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School prayer advocates have made numerous attempts since
Engel to use politics to advance their agenda. In June 1998,
House members voted 224 to 203 in favor of a school prayer
amendment, but that was not enough to meet the two-thirds
majority needed for approval. http://www.enotes.com/everyday-law-encyclopedia/school-prayerpledge-allegiance.
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Another Congressional effort, however, has borne more success for school prayer advocates.
Id. In 1984, with strong backing from conservative religious groups, Congress passed and
President Ronald Reagan signed the Equal Access Act. Id. This law requires any federally
funded public secondary school to allow all school clubs, including religious organizations,
equal access to facilities, but instructs teachers and officials not to encourage or solicit
participation in these activities.
In addition, members of Congress have attempted but failed to pass the Constitutional
Restoration Act. This Act would limit the power of the courts to deny religion in the public
sphere. The Act was filed on March 3, 2005 by Senator Richard Shelby (R-AL) and
Representative Robert Aderholt (R-AL). The bill states that:
“The Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari,
or otherwise, any matter to the extent that relief is sought against an entity of Federal,
State, or local government, or against an officer or agent of Federal, State, or local
government (whether or not acting in official or personal capacity), concerning that
entity's, officer's, or agent's acknowledgment of God as the sovereign source of law,
liberty, or government.”
The bill would impeach judges or other court officials that violate its provisions.
Supporters of the bills, largely conservative Republicans, claim that the legislation re-asserts
the original meaning of the First Amendment and the principle of limited government power
over rights of conscience and religion.
http://en.wikipedia.org/wiki/Constitution_Restoration_Act.
Opponents of the bill have expressed concern that the bill would repeal the applicability of the
First Amendment to state and local governments by rendering it impossible to appeal
constitutionally questionable state decisions beyond the state level. Id. The Act has been
viewed by critics as an attempt to advance the cause of Dominionism by conservative
evangelical Christian Republicans. Id.
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Prayer in School
Pledge of Allegiance
In God We Trust
Religious Holidays in School
Prayer in School Video Clip
YouTube - Kicked out of school for refusing to
join prayer circle
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Now home schooled and chances ruined for getting an athletic
scholarship. http://abcnews.go.com/2020/Story?id=3164811&page=4
"I didn't think they had religion in sports. But when it came to basketball
they would pray before and after practices. They would pray during
games. And you know, praying was a tradition for them and that is what
they said." Id.
Even the opposing basketball team joined in -- from the stands, school
officials bowed their heads. "You could see that all of the teachers that
work at the school, the administration had their heads bowed and were
saying the Lord's Prayer with the kids. Coach has his head bowed. It's a
thing that everyone does." Id.
School administrators said Nicole was bad for team morale and that
she'd stolen another student's sneakers, so their reasons for kicking her
off were fair. Nicole claims the charges they made were unfounded. Id.
A year later, Nicole was allowed back on the team. This time, when the
prayer started, she stayed outside the circle. "I just stood outside of it
and said the Pledge of Allegiance … Without the 'under God.'" Id.
The next school day, Nicole was suspended -- this time, she was
accused of threatening to kill a team member. But according to Nicole,
she never said that. Id.
The parties reached a settlement in October 2008, with the school
district paying an undisclosed amount to the Smalkowskis.
http://en.wikipedia.org/wiki/Hardesty_Public_School_District
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YouTube - Muslim School Prayer In Public San
Diego School
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“Under God” added by Congress in 1954
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Previous cases
◦ Gobitas
◦ Barnett:
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What does “One nation, Under God” mean?
Why was “under God” added to the Pledge,
and what benefit does it serve?
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Is the Pledge of Allegiance a Prayer?
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What are the problems with saying it?
Facts:
 Atheist father brought suit claiming the recital of the Pledge
of Allegiance in his daughters class violates Establishment Cl.
Holding:
 the Supreme Court threw out the case based on standing
because the plaintiff did not have legal custody of his
daughter.
Concurring:
 Rehnquist, O'Connor and Thomas wrote that if the case had
been decided on its merits, they would have upheld the words
"under God" as constitutional. Id.
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What are they?
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Facts
◦ Ohio state program provided vouchers. Mostly
religious private schools were getting benefit.
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Issue
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Holding
◦ Does the voucher program violate the
Establishment Clause?
◦ No.
◦ 5-4 decision.
◦ Individual recipients, not government, giving money
and support to the private religious schools.
◦ Neutrality
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Salazar v. Buono (2009)
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Do You Want "Under God" Removed From Our Pledge of Allegiance?
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Yes 76% (2,887 votes)
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No 18% (681 votes)
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I don't know or it doesn't matter. 7% (255 votes)
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Total Votes: 3,823
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Since the 1940s, the courts have held that it is constitutional to say the pledge of
allegiance at school provided that it is voluntary.
The words “Under God” were not originally part of the Pledge, but were added by
Congress in 1954. http://www.enotes.com/everyday-law-encyclopedia/school-prayer-pledge-allegiance.
“The Pledge of Allegiance is one of the nation's most honored secular symbols,
viewed by many in the same light as the National Anthem.” Id.
Written in 1892 by the socialist Francis Bellamy, the Pledge of Allegiance first
appeared in a national family magazine, Youths' Companion. Id.
There is a rich history of cases involving the pledge of allegiance. For instance, in
the 1930s, West Virginia passed legislation mandating compulsory saluting of the
flag and recitation of the pledge. West Virginia State Board of Education v.
Barnette, 319 U.S. 624 (1943). After members of Jehovah's Witnesses objected on
religious grounds, those students were expelled from school and their parents
brought suit contending that the law infringed upon their religious beliefs, which
they said required them not to engage in secular practices. Id. The state law was
then struck down because the law violated the First and Fourteenth Amendment.
Id.
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Many schools ignored the Supreme Court’s ruling that the recitation of the pledge
had to be voluntary. High-profile cases in the late 1990s involved lawsuits against
schools that instituted mandatory requirements and punished students who did
not comply. Enotes.com, School Prayer/Pledge Of Allegiance, http://www.enotes.com/everydaylaw-encyclopedia/school-prayer-pledge-allegiance. For instance, in 1998, the ACLU filed a federal
lawsuit against a school in San Diego, California after school officials required a
dissenting student to stand silently during the pledge, leave the classroom, or face
detention. Id. The case was settled out of court and the school district agreed to
change its policy. Id.
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Interest in the issue intensified again in 2001 following terrorist attacks upon the United States in September of
2001. Id. Secretary of Education Rod Paige urged students to partake in an annual nationwide Pledge of
Allegiance in October 2001 and many schools opted to participate. Id. The terrorist attacks prompted states and
school districts to revive long-dormant laws requiring students to recite the pledge. Id.
Newdow v. U.S. Congress, 328 F.3d 466 (2002)
Holding: the court held that both the 1954 Act of Congress adding Under God to the Pledge of
Allegiance and a public school's practice of teacher-led recitation of the Pledge violated the
Establishment Clause.
Reactions to Newdow:
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Politically, the reactions were very predictable. A GOP memo to all Republican members of Congress and those
running for spots in Congress implored Republicans to contact local school boards and ask them to “nullify this
decision” by allowing the Pledge of Allegiance to be recited “as is” in classrooms the next morning. A Senate
resolution “expressing support for the Pledge of Allegiance” and asking Senate counsel to “seek to intervene in
the case” passed 99-0. http://atheism.about.com/od/churchstatedecisions/a/Newdow2002_4.htm.
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One common problem with many of the reactions is that they so often portray the decision as banning the use
of “under God” when the Pledge of Allegiance is recited. In fact, nothing could be further from the truth. Anyone,
including any school student, who wants to include “under God” when they recited the Pledge of Allegiance is
allowed to do so and there is no reason to think that that will change. Id.
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What this decision held was that it was unconstitutional for the government to officially insert that phrase into
the Pledge of Allegiance and for government officials (in schools) to lead students in reciting the Pledge with
that phrase included. In other words, individuals continue to be free to do as they will, but the government is
prohibited from telling them what they should do - exactly as was the case when the government banned statesponsored and state-organized prayers in public schools. Id.
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The predictable personal attacks also arrived. Senator Robert Byrd, D-West Virginia, the only remaining member
of Congress who voted for the addition of “under God” on June 7, 1954, warned the judges who declared the
Pledge of Allegiance unconstitutional to never come before him because they would be “blackballed.” Tom
Daschle, D-South Carolina, said, “This decision is nuts.” Sen. Trent Lott, R-Mississippi, said “This is obviously an
unbelievable decision, as far as I am concerned, and an incorrect ruling and a stupid ruling.” At no point have
any of them explained in any detail where the majority decision errs. If they happen to read this, I urge them to
write to me and explain their position. Id.
Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004)
Holding: the Supreme Court threw out the case based on
standing because the plaintiff did not have legal
custody of his daughter.
Moments after the Supreme Court's ruling was
announced students at Elk Grove Elementary School
recited the Pledge of Allegiance.
http://usgovinfo.about.com/od/rightsandfreedoms/a/pledgeruling.htm.
In a concurring opinion, Justices Rehnquist, O'Connor and
Thomas wrote that if the case had been decided on its
merits, they would have upheld the words "under God"
as constitutional. Id.
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YouTube - ACLU are debate over the Pledge of Allegiance
The motto In God We Trust was first placed on United States coins in
1864 largely because of the increased religious sentiment existing during
the Civil War, but In God We Trust did not become the official U.S.
national motto until after the passage of an Act of Congress in 1956.
http://en.wikipedia.org/wiki/In_God_We_Trust. Secretary of the Treasury Salmon P. Chase
received many appeals from devout persons throughout the country,
urging that the United States recognize the Deity on United States coins.
http://www.ustreas.gov/education/fact-sheets/currency/in-god-we-trust.shtml.
From Treasury Department records, it appears that the first such appeal
came in a letter dated November 13, 1861. It was written to Secretary
Chase by Rev. M. R. Watkinson, Minister of the Gospel from Ridleyville,
Pennsylvania. Id.
****Watkinson’s Letter
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As a result, Secretary Chase instructed James Pollock, Director of the Mint at Philadelphia, to
prepare a motto, in a letter dated November 20, 1861:
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Dear Sir: No nation can be strong except in the strength of God, or safe except in His defense. The trust of
our people in God should be declared on our national coins. You will cause a device to be prepared without
unnecessary delay with a motto expressing in the fewest and tersest words possible this national
recognition. Id.
The use of IN GOD WE TRUST has not been uninterrupted. The motto disappeared from the
five-cent coin in 1883, and did not reappear until production of the Jefferson nickel began in
1938. Since 1938, all United States coins bear the inscription. Later, the motto was found
missing from the new design of the double-eagle gold coin and the eagle gold coin shortly
after they appeared in 1907. In response to a general demand, Congress ordered it restored,
and the Act of May 18, 1908, made it mandatory on all coins upon which it had previously
appeared. IN GOD WE TRUST was not mandatory on the one-cent coin and five-cent coin. It
could be placed on them by the Secretary or the Mint Director with the Secretary's approval. Id.
The motto has been in continuous use on the one-cent coin since 1909, and on the ten-cent
coin since 1916. It also has appeared on all gold coins and silver dollar coins, half-dollar coins,
and quarter-dollar coins struck since July 1, 1908. Id.
A law passed by the 84th Congress (P.L. 84-140) and approved by the President on July 30,
1956, the President approved a Joint Resolution of the 84th Congress, declaring IN GOD WE
TRUST the national motto of the United States. IN GOD WE TRUST was first used on paper
money in 1957, when it appeared on the one-dollar silver certificate. The first paper currency
bearing the motto entered circulation on October 1, 1957. Id.
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American presidents such as Theodore Roosevelt strongly disapproved
of the idea of evoking God within the context of a "cheap" political
motto. In a letter to William Boldly on November 11, 1907, President
Roosevelt wrote: "My own feeling in the matter is due to my very firm
conviction that to put such a motto on coins, or to use it in any kindred
manner, not only does no good but does positive harm, and is in effect
irreverence, which comes dangerously close to sacrilege... it seems to
me eminently unwise to cheapen such a motto by use on coins, just as it
would be to cheapen it by use on postage stamps, or in advertisements.
Id.
Legislation approved July 11, 1955, made the appearance of "In God We
Trust" mandatory on all coins and paper currency of the United States.
Id.
On March 7, 2007, the U.S Mint reported an unknown number of new
George Washington dollar coins mistakenly struck without the edge
inscriptions, including "In God We Trust." These coins have been in
circulation since February 15, 2007, and it has been estimated by some
experts that at least 50,000 of them were put in circulation. The coin
rapidly became a collector's item as well as a source for conspiracy
theorists. Id.
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The motto is opposed for a variety of reasons, but is still widely supported by
Americans.[According to a 2003 Gallup Poll, 90% of Americans approve of the
inscription on U.S. coins. http://en.wikipedia.org/wiki/In_God_We_Trust.
The Establishment Clause of the First Amendment states that congress shall make
no law respecting an establishment of religion. Critics contend that the motto's
placement on money constitutes the establishment of a religion or a church by the
government. Id.
The Supreme Court has upheld the motto because it has "lost through rote
repetition any significant religious content"; so-called acts of "ceremonial deism"
that have lost their "history, character, and context". In such related decisions as
Zorach v. Clauson, the Supreme Court has also held that the nation's "institutions
presuppose a Supreme Being" and that government recognition of God does not
constitute the establishment of such a state church as the Constitution's authors
intended to prohibit. Id.
In 1970, the United States Court of Appeals for the Ninth Circuit ruled in Aronow
v. United States, 432 F.2d 242 (9th cir. 1970): "It is quite obvious that the national
motto and the slogan on coinage and currency 'In God We Trust' has nothing
whatsoever to do with the establishment of religion. Its use is of patriotic or
ceremonial character and bears no true resemblance to a governmental
sponsorship of a religious exercise."
Constitutionalists object to sworn judiciaries employing historical context in what
they believe ought to be a raw textual interpretation. Id.
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Some activists have been known to cross out the motto on paper
money as a form of protest. Although federal law (18 U.S.C. § 333
and 18 U.S.C. § 475) prohibits defacement and modification of
currency under certain specific conditions, no documented cases
exist of prosecution for such action, and the Federal Reserve
frequently recirculates similarly defaced notes.
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YouTube - Glenn Beck CNN Headline NewsReligious Holdays in Schools
http://www.firstamendmentcenter.org/rel_lib
erty/publicschools/topic.aspx?topic=religiou
s_holidays